Stevens and Moon and Anor

FAMILY COURT OF AUSTRALIA

STEVENS & MOON AND ANOR

[2007] FamCA 633

FAMILY LAW – CHILDREN – Sexual and emotional abuse allegations and findings – Girls 7 & 3 – Unacceptable risk – Children removed from each parent and placed with maternal grandmother – Supervised contact

APPLICANT:

MR STEVENS

RESPONDENT:

MS MOON

INTERVENOR:

MS YAXLEY

FILE NUMBER:

BRF

3161

2005

DATE DELIVERED:

18 June 2007

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

The Honourable Justice Jordan

HEARING DATE:

5-21 March 2007, 22 May 2007

and 12, 14 & 15 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Fleetwood

SOLICITOR FOR THE APPLICANT:

Schultz, Toomey O’Brien, Lawyers

COUNSEL FOR THE RESPONDENT:

Dr Sayers

SOLICITOR FOR THE RESPONDENT:

Justin Crosby, Solicitor

THE INTERVENOR:

Appeared in person

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

Mr Cameron

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Jennifer Boulton, Solicitor

Orders

The children, A, born … May 1999, and S, born …March 2004, live with the Maternal Grandmother, Ms Yaxley.

(a) The Maternal Grandmother have sole parental responsibility for the said children.

(b)In the exercise of such parental responsibility, the Maternal Grandmother use her best endeavours to consult each of the parents of the children about any matters of significance relating to their health, welfare and education.

The children are to spend time with the Father each Saturday from 10.00 am to 5.00 pm, or such other extended time on Saturday as may be agreed to between the Father and the Maternal Grandmother, provided:

(a)    all such time spent with the Father is at all times supervised by the Maternal Grandmother;
(b)    such time spent with the Father shall not extend to overnight contact;
(c)    should the Maternal Grandmother need respite from those arrangements for the purposes of holidays or the like, she be at liberty to do so upon giving the Father ten (10) days notice.

The Father will communicate with the children by telephone or email at such times as may be agreed to between the Father and the Maternal Grandmother, such telephone communication to include communication each Tuesday and Thursday between the hours of 6.00 pm and 6.30 pm.

The children are to spend time with the Mother each Sunday from 10.00 am to 5.00 pm, or such other extended time as may be agreed to between the Mother and the Maternal Grandmother, provided:

(a)    all such time spent with the Mother is at all times supervised by the Maternal Grandmother;
(b)    should the Maternal Grandmother need respite from those arrangements for the purposes of holidays or the like, she be at liberty to do so upon the giving of ten (10) days notice to the Mother;
(c)    all such supervised time is dependent upon the Mother and the Maternal Grandmother reaching agreement in relation to the terms and conditions of such contact.

Should the Maternal Grandmother and the Mother be unable to reach agreement in relation to terms and conditions of the time the children spend with the Mother referred to in paragraph 5 hereof, then the Mother is to have such time with the children on each Sunday as may be accommodated at a contact centre nominated by the Maternal Grandmother.

The Mother will communicate with the children by telephone or email at such times as may be agreed to between the Mother and the Maternal Grandmother, such telephone communication to include each Monday and Wednesday between the hours of 6.00 pm and 6.30 pm.

Until further order, the Mother and the Father are restrained from applying for a passport in the names of the children, A, a female born … May 1999, and S, a female born … March 2004.

Until further order, the Mother, … born … May 1974, and the Father, … born … October 1973, and their servants and agents are restrained from taking or sending or attempting to take or send the children, A, a female born … May 1999, and S, a female born … March 2004, from Australia.

The Marshal and all officers of the Australian Federal Police and the Police Forces of the States and Territories are requested and authorised to give effect to these orders.

The Court requests that until further order the Australian Federal Police place the names of the children, A, a female born … May 1999, and S, a female born … March 2004, on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the said children from Australia in breach of these orders.

The Independent Children’s Lawyer is discharged.

Pursuant to s65DA(2) and s62B, 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 IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Jordan delivered this day will for all publication and reporting purposes be referred to as Stevens, Moon & Yaxley.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF3161 of 2005

MR STEVENS

Applicant

And

MS MOON

Respondent

And

MS YAXLEY

Intervenor

REASONS FOR JUDGMENT

EX TEMPORE

This is the 18th day of this trial before me. Suffice it to say that this is the longest trial I have convened in my 17 years on the Bench. Although the length of the trial does not necessarily define its complexity, the fact of the matter is that this is a most difficult, complex, worrying matter concerning the welfare of two very young children, where the applications before the Court really cast the stakes at a very high level, with these children facing the prospect of being deprived the opportunity to have a meaningful relationship with one or both of their parents. That prospect has imposed upon the Court a heavy burden to give proper consideration to all of the matters before the Court and to do its best to arrive at the best possible outcome for these children.

Background and Issues

Before the Court are applications by three interested parties in relation to the future living arrangements, amongst other things, for two young girls, A, born on … May 1999, and S, born on … March 2004.
The mother and the father make separate competing applications to have the children reside with them and for orders that the other parent have limited supervised contact only.
Ms Yaxley is the maternal grandmother and she intervened in these proceedings and applies for orders enabling the children to reside with her in the event the Court determines that neither parent is suitable to undertake the responsibility for the full-time care of the children.
The father is 33 years of age and is a tradesman by occupation. The mother is 32 years of age and is currently a full-time mother. The maternal grandmother is 57 years of age and is a manager.
The parties entered into a relationship in or about September of 1998. There is a dispute between them as to the date of separation. The parties spent the bulk of their relationship resident together in New South Wales. The father was at that time a truck driver by occupation. It is clear that the relationship was a volatile one and that is one of the few areas of common ground between the parties. The difference between them on this issue is that the mother says she was a victim of domestic violence which took many forms, including physical, verbal, emotional and financial abuse. The father acknowledges that there were many altercations between the parties, usually precipitated, he says, by the mother and her irrational behaviour. He asserts that he did not, at any stage, physically abuse the mother, although he asserts that he was, from time to time, assaulted by her.
As to the date of separation, it is agreed that the parties physically separated in or about August of 2003 after one such altercation. The mother chose to move out of the parties' home at that time and move to Queensland. The mother says that the events surrounding that decision represented the final breakdown in the relationship.
The father acknowledges the dispute but says that the parties had been planning to move to Queensland for some time and that he did not regard this earlier separation as final. He said his view was confirmed by the fact that, after a very short period of time, the mother pressed him, initially, to visit her in Queensland and then to move permanently to Queensland. He also points to the fact that he continued to support the mother and A whilst he remained in New South Wales to service his transport business. He says that he travelled to Queensland on a fortnightly basis to visit the mother and A and always stayed with the mother and engaged in normal relations with her, including sexual relations. He says that he eventually moved to Queensland permanently in March of 2005 and took up residence with the mother at that time.
The mother maintains that the relationship was never resumed. She asserts that the father imposed himself upon her against her will by simply turning up as and when he liked, refusing her requests to leave and, on occasions, seeing fit to impose himself upon her sexually and in other ways, resuming his controlling, abusive behaviour towards her.
It is common ground that a final physical separation was effected in September of 2005. There was a serious altercation between the parties at that time. The mother left the home and moved to shelter accommodation in Brisbane with the children. She subsequently applied for a domestic violence order. The mother has remained in Brisbane since that time.
The mother asserts that, whilst she and the children were in sheltered accommodation, A commenced to display some behaviour and make some statements which were of concern to her. She said that, at the recommendation of some helpers in the shelter, she spoke to a general practitioner, who in turn recommended that she refer her concerns to the Juvenile Aid Bureau, which she did.
The police conducted an interview with A on 7 November, during which interview A failed to make any clear disclosures of abuse. The mother says that she was initially relieved by that outcome, but subsequently became concerned again as a consequence of A continuing to make a series of more worrying and graphic disclosures, culminating in A producing two pages of handwritten notes on 5 and/or 6 December detailing incidents of clear and severe sexual abuse by her father on multiple occasions. The mother took the notes to the Department and a further interview was conducted on 7 December 2005, during which interview A repeated some of the allegations of abuse referred to in that letter.
The father was contacted by the police on 4 and 11 January and strenuously denied all allegations of sexual abuse. During his conversations with the police, he asserted that the disclosures were part of a campaign by the mother designed to fulfil her promise made during the relationship, to the effect that she would set out to cause him harm and to deprive him of a relationship with his children. He alleged that the mother had declared that there were two ways to get a man: one was to allege domestic violence and the other was to allege sexual abuse.
The mother says that, through December and January, A continued to make disclosures to her and also repeated some of those disclosures to her step-grandmother, Mrs M on 15 January, and to a family support worker, Ms T. Each of those women reported the incidents to the authorities.
It would appear that, at about this time, Departmental officers were becoming increasingly concerned about the case, not only in relation to possible sexual abuse, but also in relation to the mother's capacity to properly meet the children's emotional needs. The Department apparently had concerns that the mother may have been coaching A to make false allegations against her father. The Department was anxious to investigate all aspects of the matter and pressed the mother to allow A to be placed into voluntary care for a period for a thorough assessment in a neutral placement.
The mother says she felt compelled to comply with that request and, with a great deal of personal difficulty, she agreed to such placement on 23 January 2006.
On 1 February 2006, the Department applied for a Court Assessment Order and the Court granted the Department interim care orders for each of the girls. S remained in care until 10 February and A was returned to her mother on 15 February, after the Court refused to extend the interim orders in favour of the Department.
During the time the children were in care, the Department reintroduced some supervised contact between the father and the girls. The father had not seen his daughters since the mother removed them from the home in September of 2005.
The father first commenced proceedings in October of 2005 and obtained orders for supervised contact in November. Those orders were not complied with by the mother in the context of continuing sexual abuse investigations. The father secured further orders for supervised contact in early 2006 and has largely enjoyed contact in terms of those orders for the last 12 months or so. Pursuant to those arrangements, the father has two hourly visits on a fortnightly basis, alternating between Brisbane and the North Coast.
The mother and the maternal grandmother have had a chequered relationship for some years. It would appear that, during much of the relationship between the father and the mother, the maternal grandmother would provide support to her daughter in difficult times in her relationship with the father and during pregnancies and the like. At the same time, there were clear tensions between mother and daughter relating to the intervenor's stated concerns about the mother's health, drug use and volatile domestic relationship. Indeed, there were issues between all three adults in terms of the maternal grandmother's support, on the one hand, and perceived interference, on the other.
In February of 2005, the mother declared that she intended to sever all contact with the maternal grandmother because of this perceived interference and to sever all contact between the children and their grandmother. Until the Court intervened by way of formal orders in 2006, she remained good to her word.
The mother contends that she has been betrayed by the maternal grandmother, who she says has turned to support the father against her, and in so doing has betrayed her grandchildren by siding with a man the maternal grandmother knows to have been violent towards her own daughter and knows to have sexually abused A.
The intensity of the mother's feelings against the maternal grandmother is extreme and was clearly evident during the course of the trial. She was adamant that there was absolutely no prospect of any level of relationship or dialogue between the two of them at any time in the future. She would not support any relationship between the girls and their grandmother. To illustrate the point, she said she felt that the children were at even greater risk from their maternal grandmother than they were from their sexually abusive father.
The maternal grandmother says she is dismayed by the breakdown in her relationship with her daughter and by her lack of contact with her grandchildren. She says she would do anything necessary to repair both relationships. She has enjoyed regular periods of supervised contact over the last 12 months and is anxious to be given the opportunity to play a role in the children's lives in the future. She says she is distraught at the prospect of the children being again placed in foster care and stands ready to assume responsibility for the children should the Court decide that neither parent is suitable to provide full-time care. She says she believes that the children should preferably be raised by their parents, or a parent, but feels that the mother is not currently in a state to properly meet the children's emotional and physical needs. Subject to the Court's determination on the issue of sexual abuse, the maternal grandmother contends that the father is capable of meeting the children's needs. If the Court does not place the children with her, the maternal grandmother seeks formal orders for contact with the children such as would enable her to remain a significant part in the children's lives.
The father supports the maternal grandmother having contact with the children in the future.
The trial process itself produced an unexpected turn of events. The matter proceeded before me for some 15 days between 5 and 21 March 2007. Unfortunately, the hearing proceeded well beyond the estimated and allocated hearing days and the Court was unable to take submissions at the conclusion of the hearing. Counsel requested the opportunity to provide written submissions and the time for delivery of judgment had to be extended on account of some intervening long leave. In the end result, judgment was reserved to 7 June 2007 to take account of such matters.
In the meantime, the Independent Children's Lawyer received information which resulted in a successful application to have the case re-opened. That information was provided to the Independent Children's Lawyer by one, Ms N, a friend and supporter of the mother, who had attended during a significant portion of the trial to provide the mother with moral and practical support. Ms N had, apparently, been a friend of the mother dating back to school days and she stayed with the mother during the early part of the trial. The mother subsequently spent further time with Ms N in Sydney after the adjournment of the hearing.
In an affidavit filed on 14 May 2007, Ms N said that she had become so concerned about aspects of her friend's behaviour and her treatment of the children that she felt compelled to advise the maternal grandmother who, in turn, referred her to the Independent Children's Lawyer. The thrust of that evidence, which will need to be carefully scrutinised later, was to the effect that, despite her assurances to the Court to the contrary, the mother continued to be a heavy user of drugs, including heavy use during the course of the trial itself and, further, that the mother engaged in conduct, directed at A in particular, which was highly inappropriate, including openly discussing the father's sexual abuse of A and A's reaction to it, in front of the children, and that she otherwise conducted herself in a variety of ways which Ms N described as indicating demeaning, abusive or neglectful treatment of the children.
Leave was granted to file that affidavit and, upon the re-opening of the case, Dr G, psychiatrist, provided a further report and gave oral evidence and the case was set for a further three days commencing 12 June 2007.
Not surprisingly, the father described Ms N's evidence as somewhat startling and suggested that the children's safety required their immediate removal from the mother's care.
As to his primary application, the father contends that the children's welfare would be better served in his care for the following principal reasons:
(1)The mother has grossly, emotionally abused the children. In the case of A, he contends that such abuse is in the form of manipulating the child to make false allegations of gross sexual abuse and thereafter expose her to the consequences of damaging investigations which have included having A placed in care. He says that the mother has further emotionally abused the girls by setting about to severely curtail their relationship with a loved and loving father.
(2)The mother's long-term, irrational behaviour and unstable lifestyle.
(3)As a consequence of the mother's long-standing and continuing drug use.

By contrast, the father suggests that he is able to provide a stable, loving, nurturing environment, wherein he has the full support of a vast family network, which now includes the maternal grandmother, which stands in stark contrast to the largely isolated life of the mother, riddled with fractured relationships with family and friends.
The father says he is gravely concerned about the level of the mother's past emotional abuse and her capacity to manipulate and harm the children in the future. He believes that, for the children's sake, the mother's contact with the girls will need to be supervised for some time.
For her part, the mother refutes the suggestion that she is unable to care for the children and says that she has always dedicated herself to them and has provided them with a high standard of care. She says that the children should remain with her and have only limited, supervised contact with their father for the following principal reasons:
(1)The father is guilty of gross sexual abuse of his daughter, A.
(2)A is now very anxious and uncertain about even supervised contact with her father.
(3)The father is a violent, aggressive man who has inflicted physical, emotional and financial abuse upon his partner, much of which was observed by A.
The mother contends that she has always been the children's primary caregiver and she suggests she has provided well for them in that capacity, whereas the father, on the other hand, has only had a very limited role in the care of A and virtually none in the case of S.
In terms of the maternal grandmother's application, the mother contends that any unsupervised contact with the grandmother would expose the children to a grave risk of emotional harm in the form of inevitable denigration of the mother in the presence of the children. She also believes that the maternal grandmother would be likely to undermine the children's sense of safety by refuting with A her stated concerns about her sexual abuse at the hands of her father.

Principles

This case and those parameters bring into focus two of the primary principles which govern Courts exercising jurisdiction under the Family Law Act. They are, the right of children to a meaningful relationship with each of their parents, on the one hand, and the right of children to be protected from harm, on the other. Each of the parents has a vital interest in the outcome and a right to be properly heard. Potentially, each has much to lose. However, the legitimate interests and concerns of the parties are subordinate to the interests of their young children. In all proceedings of this type in the Family Court, the welfare of the children is, and remains, the paramount consideration.
This is a matter where the parties each raise very serious allegations of sexual and emotional abuse which are inherently difficult to prove or disprove. This is, however, not a case primarily about the guilt or innocence of the mother or father, although a thorough investigation of the allegations of abuse is essential. This is not the forum to convict and punish either the accuser or the person being accused. It is not a criminal trial and the Court must not become distracted by such notions. It is a hearing designed to determine what outcome best serves the children's welfare, having regard to all of the relevant issues, evidence and principles defined in the Family Law Act.
Within that context, however, on the facts of this case, an examination of the allegations of sexual and emotional abuse and the determinations thereon may serve to largely dictate the outcomes on ancillary matters. If the Court determines A has been sexually abused by her father in the ways suggested by the mother, then such conduct is beyond reprehensible and the children would need to be protected from a person capable of such gross abuse and breach of trust. If the Court determines that A was not sexually abused but has been subjected to gross, emotional manipulation by the mother for her own needs, such conduct would also be reprehensible and may well illustrate that the children would be at ongoing risk from a person capable of such gross abuse and breach of trust.
As I have said, usually in trials involving allegations of child abuse, there is not available to the parties, or the Court, any body of clear-cut, cogent evidence capable of positively establishing the validity or otherwise of serious allegations made against parents. Typically, there are no admissions, no eye witnesses and no physical evidence. Young children, particularly those confused and conflicted, can present as historians of equivocal value. Such realities leave the genuine accuser and the wrongly accused in very vulnerable positions. The allegations made and challenged are inherently difficult to prove or disprove.
The unenviable and onerous task thrust upon the Court is to do the best it can to examine all of the available evidence and apply careful and reasoned consideration to all relevant issues of fact and to endeavour to reach appropriate conclusions. When considering issues of sexual abuse in particular, the responsibility imposed upon the Court is a particularly heavy one. The implications of a positive finding of sexual abuse are far-reaching for the parties and their children. They are all likely to be left with the prospect of dealing with the consequences of such a finding for the rest of their lives.
Higher Courts have prescribed that, particularly as this is not a criminal forum, the Family Court should be cautious about the prospect of making such positive findings. It should not retreat from such a prospect where the evidence is clear, but it is not enough to make positive findings based on suspicions and concerns.
In this case, there are counter-allegations of very serious, damaging, emotional abuse which, if established, might also justify the immediate removal of the children from the abuser and the need to protect the children from risk of such abuse in the future. Such serious finding and consequential orders should similarly be made only in cases of clear evidence and based on sound findings.
In criminal cases, guilt must be established beyond reasonable doubt. In civil cases, responsibility can be established on the balance of probability. Family proceedings are governed by principles applicable in civil cases, but it is well established that, when a civil court is dealing with very serious issues and with determinations which are likely to have a bearing upon the rights and reputations of the parties before them, the standard of proof necessarily must be set at a higher plain than the mere balance of probability test. The more serious the allegation, the higher the standard of proof. In cases of alleged sexual abuse, "the standard of proof…must be towards the strictest end of the civil spectrum as set out in Briginshaw and s 140 of the Evidence Act 1995" [WK v SR (1997) FLC 92-787].
I bear those important principles in mind in reviewing the issues and the evidence.
In my view, the most appropriate way to approach this case is to examine the case of sexual abuse in the traditional way, with a view of determining, firstly, whether a positive finding of sexual abuse is justified on the evidence or, alternatively, to consider whether the question of sexual abuse can be positively ruled out. If the Court makes such a positive finding, that will necessarily be the end, at least of the competing applications of the parties for residence orders. If, on the other hand, the Court is able to positively rule out sexual abuse, then the focus will turn to other considerations, including the likelihood of emotional abuse and the consequential orders necessary.
If the Court determines that the evidence does not justify a positive finding on the issue of sexual abuse one way or another, then the task of the Court is to evaluate the same evidence and to determine whether it justifies a conclusion that, to provide unsupervised contact between the children and their father would expose the children to an unacceptable risk of harm. When assessing such matters, it is incumbent upon the Court to have regard to both the magnitude of the risk and the possible magnitude of any resultant harm in the event the children did experience any such forms of abuse.

The Evidence

In this case, there is a great deal of evidence capable of supporting conclusions on the questions of the alleged sexual abuse of A by her father. There is evidence from a wide range of witnesses who affirm that A has made direct disclosures to them implicating her father in most serious sexual misconduct. Not surprisingly, the mother is the primary source of such information. But A has clearly made disclosures to a number of other people, including the mother's witnesses, Ms M and Ms T, and witnesses produced by the Independent Children's Lawyer, including Police Officer K and Police Officer H, on separate occasions, and further disclosures were made to experts appointed by the Independent Children's Lawyer, a social worker, Ms W, and a psychiatrist, Dr G.
In this case, the child has also provided written disclosures to her mother (Exhibit 14), and to her step-grandmother, Ms M (Exhibit 19). The Court has also had access to audio and visual recordings of interviews conducted with the child (Exhibits 1, 2 and 4).
In my view, there are some pivotal elements of the case requiring closer attention, including the making of Exhibit 14, features of the interviews between Police Officer K and the child on 7 December, features of the interview between A and Police Officer H on 16 January, and aspects of A's attendance upon Dr G on 23 March.
I propose to firstly highlight the significance of Exhibit 14 as part of that exercise, and that document serves to very effectively and graphically define the primary issues between the mother and the father. Exhibit 14 is a two page document containing notes written in a child's hand. The document must, of course, speak for itself, but despite obvious problems with structure, expressions and spelling, the thrust of the information contained in that document is disturbingly clear. In that document, the young female author is describing how she was grossly and frequently sexually violated by her father. Included in the detail are disclosures of the following:
a)manual stimulation of the child by the father;
b)the child being required to stimulate the father's penis and scrotum;
c)the child being required to massage her father's erect penis;
d)the father trying to insert his penis into the child's vagina;
e)the father engaging in oral sex on the child;
f)the father requiring the child to perform oral sex on him;,
g)threats by the father that if the child did not touch him sexually as required, he would kill her, her sister and her mother.
The author of that letter was A. The letter was written by A on 5 and/or 6 December 2005. A was, at that time, 6 years of age and had just completed Grade 1. Dr G and Ms W and commonsense, all attest to the obvious, that is, that notions of sexual intercourse, erections, masturbation and oral sex are ordinarily far beyond the knowledge and life experience of 6 year olds. To write in such detail of a wide range of advanced sexual activities, the child author must have either experienced such matters personally, or observed such behaviour first hand, probably repeatedly and at close quarters, so as to properly grasp what she was observing. Alternatively, such concepts have been introduced and repeated to her by the spoken word of an adult. The remaining possibility is that the written words were dictated to a child by an adult.
Of the four possibilities referred to, one of the few areas of common ground between the parties is that they each agree and are equally adamant that there is absolutely no prospect that A would have had the opportunity to observe any sexual activity whatsoever between her parents at all, much less the wide range of sexual acts described by A in Exhibit 14. Each parent attests to the fact that they shared a common view about such matters and were vigilant to ensure that the children were never exposed to any manifestations of their sexual relationship, which they chose to conduct largely at night behind closed doors and after the children had gone to bed.
There is the prospect that A may have been exposed to some sexual activity in 2003 when she was just four. The mother alleges that A reported being touched by a 12 year old male cousin at that time. The matter was never thoroughly investigated and the detail of the incident remains unclear. If such an incident did occur, at face value it may have the consequence that A has been left exposed to being touched on her genitals, to touching the boy's genitalia and to supposedly seeing her cousin's penis. It will never be known if such an incident took place and, if so, whether it was anything more than a harmless episode of childish curiosity or whether the boy's intentions and actions were more sexualised in nature.
What is clear is the fact that A was very young at the time and that she would have been likely to have been entirely uncertain and confused about the whole incident. The extent to which she would understand and even remember such an incident over two years later would need to be seriously questioned. In any event, whatever happened between 4 year old A and her 12 year old cousin over two years prior to separation and prior to the production of Exhibit 14, that incident could not, in my view, provide any basis for a child being able to make such explicit and detailed allegations of multiple acts of adult sexual behaviour including masturbation, oral sex and attempts at sexual intercourse perpetrated upon her by her father.
In my view, the Court is able to rule out with absolute certainty the prospect that this 6 year old girl managed to invent the sordid detail included in Exhibit 14 and produce two pages of handwritten notes describing with great accuracy and particularity serious allegations of gross sexual abuse that were way beyond her experience and knowledge and way beyond the understanding of ordinary 6 year olds. What makes it even more improbable, in my view, is the prospect that she would sit down over some time on a considered basis and falsify such terrible allegations against a father she loves and do so for no apparent reason. Accordingly, the prospect that A had the knowledge, motivation, ability and determination to entirely fabricate these allegations can be ruled out.
The Court is therefore left with only some unpalatable options. The first is that the author of Exhibit 14 was, in fact, grossly sexually abused in the way set out in that exhibit. The second is that the author was grossly, emotionally abused by her mother forcing her to falsify allegations of sexual abuse against an innocent, loving father. Those possibilities very graphically illustrate the pivotal nature of the central dispute between the parties.
The mother is adamant that the document was independently produced by A overnight in December of 2005 and that its contents are entirely consistent with detailed assertions A has made to her on numerous occasions, both before and after the production of that document. She says further that the contents of the document itself are consistent with the disclosures made by A to many others, including investigators and professionals.
The father is equally adamant that the document is a fraud. He acknowledges that the document appears to have been written by A, but says that the contents are entirely false and must have been dictated to A by her mother. He suggests that the mother has obviously engaged in extensive coaching and manipulation of A to have her repeat those types of allegations to the wide range of people referred to above.
The Independent Children's Lawyer suggests that the Court needs to consider not only those prospects, but a third proposition, and that is that it is possible that each of the parties has engaged in highly abusive behaviour and that the children are now in need of protection from each of them. That proposition is based in part upon the submission that the Court will necessarily find that A has been the victim of emotional abuse and manipulation in the mother's home, and that such exposure could well define or colour A’s presentation when dealing with the issue of sexual abuse. It is contended by the Independent Children's Lawyer that, at the very least, the mother's behaviour is such that there has necessarily been some contamination of A's thought processes, such that the Court would need to exercise considerable caution when reviewing the child's disclosures and such as to prevent the Court from making a positive finding of sexual abuse. At the same time, it is contended by the Independent Children's Lawyer that there are aspects of the evidence on the issue of possible sexual abuse which remain of significant concern, so that the Court is left with the prospect that it cannot rule sexual abuse either in or out.
It is the submission of the Independent Children's Lawyer that the risk to these children of being in the unsupervised care of either of their parents is such as to be unacceptable and to require their immediate placement with the maternal grandmother.
It would be inappropriate and artificial to consider Exhibit 14 in isolation. An examination of the totality of the evidence is necessary to properly explain the context and pivotal nature of that evidence and the Court needs to take into account a wide range of evidence and facts to properly evaluate the veracity of the most serious allegations the parties raise against each other and the viability of the propositions advanced by the Independent Children's Lawyer.
As part of that forensic exercise, I propose to consider, amongst other matters, the following:
(1)the profile and presentation of the parties and their conduct in dealing with the allegations;
(2)the nature of the disclosures and allegations;
(3)the context of the allegations and issues of motives;
(4)corroboration;
(5)the presentation of the children.

The Profile, Presentation and Conduct of the Parties

The Father

The assessments of the father by a wide range of people have been almost uniformly favourable. He has presented as a sincere, concerned father, vehement in his denials of abuse and fervent in his expressions of concern for his children. The father's presentation before me was unremarkable. He conducted himself at all times in a constrained and appropriate manner. He was a sound witness who gave consistent, believable testimony. His demeanour and manner remained congruent with the topics being discussed, including displaying proportional levels of resolve, resentment and distress at various times.
It is equally clear that the father has presented with anger issues in the past. In that regard, one is not reliant upon the mother's evidence alone. There is confirmation of this observable characteristic from the maternal grandmother and members of the father's own family. The father makes frank admissions about his contributions to the difficulties and the arguments in the relationship, although I am of the view that he has, at times, sought to minimise his own bad behaviour, particularly his behaviour during previous Court proceedings and during the incident outside the restaurant during the Dr G interviews. However, the father was adamant and quite convincing in his denials of physical abuse of the mother and, perhaps even more importantly, of sexual abuse of A.
Dr G assessed the father as displaying some personality difficulties relating to anger management and poor impulse control. However, Dr G said that the father did not have anything in his profile which left him predisposed to sexual abuse of his children, observing that he did not have any signs of mental or personality disorder and he had an uneventful childhood. Dr G observed that his interaction with the girls was sensitive, even-handed, stimulating, and that there was no inappropriate interaction between the father and the girls.

The Mother

The assessment of the mother is far more complex. She is clearly a quite troubled woman. She presents as tense, angry, volatile, single-minded and determined. At other times, she can appear quite fragile.
Ms W, a social worker, was engaged by the Department to prepare a report in the context of the Department's placement of the children in January and February of 2006. Ms W interviewed the mother on 9 February 2006. Ms W observed that the mother presented as an intelligent woman who was polite and co-operative during interview. However, Ms W said that features of her history were not consistent with the mother's presentation and she raised questions about her emotional stability. Ms W recommended a psychiatric assessment of the mother.
Dr G saw the mother on 22 March 2006 and, in her report of 12 May 2006,

Dr G assessed the mother as displaying traits of borderline personality disorder, noting the complex family dynamics and conflictual relationships which appear to have pervaded her life.
Therein lies but one of the particular difficulties of this case. It is not easy to make fair and proper assessments of the mother from the reports and the other evidence about her before me. It is clear that there has been a good deal of emotional instability in the mother's adult life. It is clear that a wide range of significant personal challenges have been encountered by the mother in recent years. Like the father, she has struggled with the ordeal of a highly conflictual, dysfunctional relationship. She has encountered very significant problems in her relationship with her mother, which now appears to be irretrievably broken down. In the past, the mother has been able to turn to her own mother in moments of personal crisis.
The mother perceives herself to be the victim of physical, emotional and financial abuse. She has had to deal with the complete breakdown of her relationship with the father, the separation, living in a women's shelter and very intense, domestic violence litigation. She says that she has had to deal with the shocking revelations by her daughter about sexual abuse at the hands of the father. She has been engaged in a protracted, traumatic process with welfare agencies. She has had to endure the removal of her two children from her care. She has been required to deal with protracted and traumatic evaluation and litigation within the Family Court processes. During all of this time, she has had the sole or primary responsibility for the care of two young girls, with very limited physical, financial or emotional support.
It is, therefore, perhaps not surprising to hear that, at times, the mother has behaved poorly or has exhibited poor judgment in the way she has conducted herself. She has alienated herself not only from family, but also from a wide range of third parties, including school teachers, school principals, police officers, Departmental officers and professionals, who have all formed unfavourable views of the mother's conduct and behaviour.
Of course, it is necessary and appropriate that I take account of all of these challenges which have confronted the mother. On the other hand, I am obliged to take account of the history and the assessments of others.
As I observed to counsel for the parties during the course of the proceedings, it is important that the mother's case and stated concerns should not be abandoned because she may have a borderline personality disorder or because her behaviour was poor and erratic on occasions. It is not only the children of mothers who have enjoyed untroubled lives who are at risk of sexual abuse and in need of protection.
On one view of it, the presentation and conduct of the mother could equally be regarded as the hysterical behaviour of a disturbed woman embarking upon a baseless campaign of retribution, on the one hand, or the conduct of a confused, anxious, concerned, protective mother confronted with shocking disclosures of sexual abuse, on the other.
If the mother believes that A was sexually abused by her father in the ways described in the disclosures, it is hardly surprising that she might experience feelings of anger, disgust and extreme anxiety and behave accordingly. If she held those beliefs and then approached appropriate authorities for action, only to be accused of emotionally abusing her own children and then having them removed from her care and placed in foster care, some elements of hysterical reaction, desperation and abject loss of trust are hardly surprising responses.
At the same time, the mother's reliability as a witness in relation to key aspects of the case remains a very important consideration. She asks the Court to accept that A has volunteered serious disclosures of sexual abuse to her since separation. She asks the Court to believe her when she says that she did not help A produce Exhibit 14. She tells the Court that she was a victim of domestic violence and that she no longer uses marijuana.
Regrettably, I am left to observe that the mother presented before the Court at times as a most unreliable witness. The evidence of Ms N is most telling in relation to that aspect of the case. I accept the evidence of Ms N in its entirety. She was the friend and ally of the mother throughout the bulk of the trial process and was prepared to extend to her great generosity and support. She has never been aligned with the father or the maternal grandmother and she has absolutely nothing to gain by giving false testimony against the mother at the eleventh hour. I accept her assurances that the last thing she wanted to do was to fly from Sydney to give evidence against her recent friend. I accept that she reluctantly came forward when she became so concerned about the mother's behaviour and treatment of the children that she felt bound to bring these matters to the Court's attention for the safety and welfare of the children.
Of course, I am not left to rely solely on the evidence of Ms N in this regard. Many of the matters raised by Ms N served to corroborate the myriad of concerns and allegations raised by the father and the maternal grandmother against the mother. In particular, the applicant and the intervenor each referred to the mother's heavy drug use, erratic behaviour and verbally abusive treatment of A.
The mother denied all such allegations. In particular, the mother declared in affidavits and on oath before me on numerous occasions, that she was no longer using drugs, had not used them for some weeks prior to the trial and certainly was not using them during the trial itself. It is clear that the mother lied to the Court on this important issue.
I accept that she was, in fact, using drugs every day during the trial, at least when Ms N was in Brisbane, and every day when the mother was in Sydney. I would have little reason to believe that the mother would have desisted from her use of marijuana at any time during the trial. In fact, I believe the mother is a regular and heavy user of marijuana and that she has developed a dependency upon that drug and that the longstanding heavy use of the drug is likely to be having an adverse effect upon her capacity to function as a person and as a parent.
In terms of credibility, the mother compounded her problems when confronted with the evidence emerging from her own email referring to her drug supplies in Brisbane and what she took to Sydney, by proffering explanations relating to Ms N's mother's gift and the gift of an unidentified friend at the Sydney Airport, which were nothing short of an insult to the intelligence of the Court.
The mother was also caught out badly when dealing with the issue of A's knowledge of email exchanges between herself and Ms N. In the course of testimony, the mother literally tied herself in knots with variations, including the email address in question was A's, it was the mother's email address and A did not have access to it, even though it was A’s own address, and that she could not explain how A managed to get access to the email referring to her as a slut, and then, yet again, an assertion that Ms N well knew that A had access to all of the emails exchanged between them.
As to the allegations of Ms N about the mother's regular discussions about the father's alleged sexual abuse in the presence of, and directly with, A, together with the other evidence about obscene language, threats and verbal abuse of A in particular, the mother chose to adopt an approach that the Court was required to determine that either Ms N was lying, or the mother was lying. I accept Ms N's evidence and I find that the mother was lying in her denials.
At this point, I should also record that I prefer the father's evidence about the date of separation in September of 2005. There is a greater logic to the father's account, which saw him commuting regularly from Sydney, continuing to provide support for the mother and the children, providing occupation of his father's family home and, eventually, the return of the father to Brisbane and the resumption of cohabitation with the mother from March to September of 2005. Further, as I have earlier observed, the mother presents as being very strong willed, assertive and even an aggressive individual, and she did not become that way overnight. I find it very difficult to accept her proposition that, for a full two years, she meekly accepted the attendance of the father in her home as and when he saw fit for as long as he saw fit.
It follows, in these circumstances, that it is difficult to place any great reliance upon the mother's assertions about domestic violence. I am certain there was a great deal of conflict. I cannot rule out the prospect that there were physical altercations. But the task of determining questions of responsibility, given the mother's unreliability on other key aspects of her testimony, becomes impossible. At the best for the mother, I suspect she has engaged in some selective and exaggerated recall in relation to such matters.
Further, I accept the father's testimony, corroborated in a number of ways in this case, that the mother's personality, aggression and erratic behaviour were at least very significant contributing factors to such conflict. In that regard, I note that many others have been victims of, or have observed, the mother's abrasive manner, including the maternal grandmother, Ms N, members of the father's family and various members of government and police agencies.
One is left necessarily with the obligation to view very carefully all of the mother's evidence on matters of contention, even making allowances for my hypothesis relating to aspects of the challenges that have confronted a potentially anxious and protective mother.
However, even such strong findings of credit against the mother cannot be used alone to reject her case of sexual abuse and to disregard A's disclosures. There is more to the case than just the mother's testimony and, for A's sake, I must look beyond the mother's unreliability. Again, it is not only children of the virtuous who are prone to abuse. I must examine all relevant evidence before reaching any conclusions.
Indeed, it is proper to record that, when it came to her evidence on the issue of sexual abuse itself, the mother was no less convincing than the father. There was a consistency between the account she gave to the Courts and those she gave to a wide range of investigators over months of intensive investigation. Like the father, she was firm and most convincing in her assertions in relation to A's disclosures and she displayed palpable and telling anger, resolve, disgust and distress proportionate to the gravity of the topics under discussion.

The Nature of the Disclosures, Context, Conduct and Motive

The history of the allegations of abuse, and the context, are as follows. It is clear that at the time of separation in Queensland in September of 2005, the mother bore great ill-will towards the father. Of course, on her account, such feelings would be entirely understandable. The mother presented in a wide range of situations as damaged and depressed and she was highly critical of the father as a partner and a parent to almost anyone who would listen.
There can be no doubt that the children, and A in particular, were continually exposed to the mother's stress and anxiety and regularly exposed to her tirades against their father. A would have been left in no doubt about her mother's entirely negative views of her father and of the fact that she held him responsible for all of the misfortune and hardship the mother and children were confronted with in the weeks and months after separation. The mother's presentation during that time was observed by a wide range of independent people who came into contact with the family and her behaviour attracted descriptions such as, hysterical, volatile, angry, aggressive, persistent and obsessive.
Even during the course of these proceedings, in the controlled environment of the Court room, the intensity of the mother's negative feelings towards her former partner and many others who crossed her path were on clear display and she regularly found it most difficult to contain herself. I gained a very clear impression that the mother is a person well used to taking strong stands against those who disagree with her and of being prone to expressing her views most vigorously indeed. She did not present as a person ever likely to choose to retreat from conflict and she carries with her a litany of fractured relationships with a wide range of important people in her life.
If the mother felt wronged by the father, as she clearly did, A would have been acutely aware of her mother's feelings.
Further, it is noteworthy that the mother chose to go into hiding at the time of separation prior to the emergence of allegations of sexual abuse and chose not to provide the father with any knowledge of the whereabouts of the children, or any means of having contact with them. Of course, such conduct could be justified on grounds of safety. Whilst the mother did make complaints at that time about some aspects of the father's treatment of the children and his aggressive and inappropriate behaviour in front of the children, it is clear that her most prominent complaints at that time were in relation to his abuse of her. She appears to acknowledge that the children appear to have positive feelings towards their father even now, and the probability would necessarily have been the children would have presented as confused and missing their father in the weeks and months after separation.
Even on the mother's own case, she did not form the view that A had been sexually abused by the father until around 5 or 6 December. Notwithstanding, the mother failed to make any effort to provide the children with contact with their father. It is open to consider that the mother's conduct in that regard, and prior to the children's clear disclosures of abuse, is consistent with the actions of a parent motivated by hatred and retribution.
The first disclosure by A was said to emerge in October of 2005. The mother says that, whilst she was in the women's shelter and in the process of preparing for domestic violence proceedings, she had been encouraged by her shelter workers to record in writing details of the father's mistreatment of her. Without offering an explanation for allowing this to occur, the mother said that A was aware of what her mother was doing and that she would ask her mother to "Write down that Daddy keeps coming into my bed. He also washes me hard on the wee-wee, which gives me a rash." The mother says that A was also evidencing some fear of her father. The mother said she spoke to a woman at the R Community Centre and then arranged for A to see a general practitioner, Dr O, who recommended contact with the Juvenile Aid Bureau.
A was interviewed by Senior Constable K and Ms L from the Department. The video recording of that interview is Exhibit 1 in these proceedings. It is appropriate to identify those exchanges as "the first interview". In that interview, A did report that her father snuck into bed on three occasions. However, she failed to make any disclosures of any untoward behaviour, despite a very long interview and despite some quite persistent questioning towards the end of the process. Further, on a number of occasions, A not only failed to make disclosures, but went on to positively assert that her father did not touch her private parts whilst in the bed.
Importantly, the mother asserts that, at that time, she did not believe that the father had sexually abused A in the past and she said she was relieved to be told that A did not make any disclosures in the first interview. Senior Constable K appeared to confirm the mother's account on that point.
The mother says that, after the interview was completed, it was recommended that she arrange some counselling for A, which she did. The mother said that, when she was driving A to her first appointment, she explained that she was not seeing a doctor but she was seeing someone she could talk to about any problems. The mother says that A then said, "Can I tell him things I haven't told the police?" She said that A appeared quite flushed. The mother said she then asked A if there was anything she would like to tell her. She said that A turned towards her and said, "Daddy made me do this." The mother said she then observed A move her hand up and down in a way consistent with mimicking masturbation of a male penis. The mother says she was shocked but did not say anything at the time.
In her oral testimony before me, the mother was to describe that incident as "life defining." She subsequently contacted the police and was given an appointment in late December/early January.
The critical evidence contained in Exhibit 14 emerged on 5 and 6 December. The mother says on the evening of 5 December, A had told her that there were more things she wanted to say but that she did not feel able to do so. The mother says she asked her daughter if she wanted to write them down. She said that A said she may be prepared to do so and nothing further was said at that time. The mother said she placed police stickers on the bottom of three blank pieces of paper and left them in A's room, saying, "If you feel like writing something down, there's some paper."
The mother said that, in the next morning, she was sitting in the lounge when she was approached by A, who said, "Mummy, I have written this down", and produced the two pages which are now Exhibit 14. The mother said that she held the paper and A read what she had written. She said she believes A asked her how to spell some words and she recalls correcting some of the notes.
Exhibit 14, as I say, speaks for itself, and I have earlier summarised the detailed gravity and implications of the matters set out therein. What is established is that A did physically write the letter, the events described raised matters beyond the capacity of A to invent, and that the mother did help the next morning to correct some spelling after A had presented her with the finished product. The issue is whether A independently produced that document, or whether her mother dictated the contents to her.
The mother says she was absolutely shattered by what she read and from that moment on she knew A had been sexually abused. She said she was distraught that she had not learned of it earlier and that she has been determined thereafter to do whatever was necessary to protect her daughter.
Having received the two written pages, the mother took A to school that morning and then went straight to the Department with A's letter and an interview was organised for the next day. Present at the interview on 7 December were Senior Constable K and Ms E from the Department of Children's Services. The video recording of that interview is Exhibit 2 in these proceedings.

It is to be observed that, at the beginning of that interview, A had to be prompted a couple of times to identify anything horrible in her life. She responded by saying, "When Dad does bad stuff to me in bed." However, when asked why that was bad, she said she did not know. The officers were unable to extract any more information from A until her letter was produced and discussed. A confirmed she wrote the letter and then proceeded to read it to the officers. It is noteworthy that she appeared to struggle with reading some of her own writing. A confirmed that she had written the letter in the morning and in the night. She answered a question about her mother being awake at the time with a "Yes", and then a "No". A said her mother did not tell her what to say, but did tell her to write the words. Those statements can be construed as merely being consistent with the mother telling A she could write things down if she wanted, or they could be of more sinister moment.
A was subsequently asked questions about the contents of the letter and it is to be noted that she was able to provide details consistent with the contents of the letter. Significantly, when questioned about touching her father's penis, she was able to properly explain what was clearly an act of masturbation, accompanied by an entirely congruent demonstration by cupping her hand and moving it up and down. Later in the interview, A both described and demonstrated how her father had put his hand on her rude part and moved it up and down, using her fingers in a manner which was indicative of someone who had a real understanding of such sinister conduct.
Further, and significantly, in my view, she was able to add some logical and congruent detail of related matters not contained in the letter. For example, A said she had stopped rubbing her father's penis, "Because I could only do it for 20 or 30 seconds." She went on to say that, after her father left the room, she washed her hands because she might have boy’s germs on them.
A was questioned about the process and she said she had got a little help from her Mum, and when asked what type of help, A volunteered, "Spelling."
The mother spoke to Senior Constable K after the interview and, apparently, she became highly agitated when she learned the father would not be charged immediately and that the Constable intended to follow a process of investigation.
The mother says that, after the letter and interview, there were numerous occasions when A raised things her father had done to her, largely along the lines of the contents of the letter.
The next significant event was on 15 January, a day when the mother left A with the step-grandmother, Mrs M, whilst the mother was moving to rental accommodation. A had stayed overnight on 14 January. Mrs M said she was playing with A, when A said, "It's true that Daddy has been doing bad things." A appeared reluctant to talk about the matter further and Mrs M said she then asked A whether she would rather write it down, and she gave her a pad for that purpose if she wanted to do so. Mrs M said she then went about cooking the evening meal and that, about 10 minutes later, A approached her, saying her pen had run out. About 10 minutes after she was provided with a second pen, A produced a note, which is attached to the affidavit of Mrs M and is now also Exhibit 19 in these proceedings. In that letter, A again refers to the father sneaking into bed, touching and trying to lick her rude part, and of making her touch his rude part.
There had been an opportunity for the mother to prompt A to make those disclosures to Mrs M, as the mother spent some time with A in the park earlier that afternoon. I also note the first relevant remark recorded by Mrs M was the statement, "It's true that Daddy has been doing bad things", as if A saw the need to justify something that, I gather, had not been the subject of any debate or earlier discussion in the step-grandmother's household. It could be argued that such a statement by A could be suggestive of prompting.
On the other hand, the mother's refusal to read or even hear about the contents of that second letter do not appear to be the actions of someone fabricating a case and coaching a child. One would normally expect to see the coach anxious to ensure that the pupil had got her instructions right.
Mrs M reported the matter to the Department of Children's Services and faxed a copy of the note to the mother's solicitors.
The next significant incident of disclosure occurred on the following day at the office of Ms T, a Child and Family Support officer employed by the R Shire Council at the OH. Ms T had been providing the family with support in December of 2005 and January of 2006. I gather she had been principally engaged with the mother, but that she had met each of the girls prior to 16 January. On 16 January, the mother arrived at the office of Ms T saying A wanted to speak to her. Of course, one must deduce from that assertion that there had been prior discussions between mother and daughter in relation to the proposed topic. The mother told Ms T that A was continuing to talk about incidents of sexual interference by her father.
The mother then left A with Ms T and they spoke for approximately three-quarters of an hour. A told Ms T that she wanted to talk to her about Dad and Ms T asked her if she could take notes, which she did. Ms T said she wrote down precisely what A told her. A also had a biro and she also wrote down some of the information on the piece of paper produced that day. The document produced by Ms T and A is now attached to the affidavit of Ms T filed on 11 September 2006. In that document, A repeated the types of allegations contained in her earlier notes and discussions, including the allegations that her father snuck into her bed, tried to touch her private part and touched the side of it and rubbed it, made her touch and rub her father's private part, and of the threat to kill. A also mentioned how her hand became sore from rubbing a lot and how she felt sad and scared.
In her oral testimony, Ms T provided details of further disclosures made by A which were not recorded in the written document, nor, surprisingly, were these further matters referred to in Ms T's affidavit of evidence-in-chief. Nevertheless, Ms T said that, in addition to the written disclosures, A talked about her father's penis being soft and getting harder and about white sticky stuff coming out and going onto the sheets. She said A also said that she had to rub it until her hand got sore and that A then proceeded to physically demonstrate the act of masturbation. Ms T observed that, throughout this disclosure and discussion process, A variously appeared to be sad, embarrassed, frightened, awkward and, at times, humiliated. Ms T said that she was shocked by what A was saying and by her writing. She said she had never previously had any experience of a child making disclosures of sexual abuse.
Ms T said she felt compelled to contact the police, which she did without reference to the mother and prior to the mother's return. She subsequently informed the mother of A's disclosures and Ms T reports the mother as presenting as upset, emotional and pretty devastated. The mother, apparently, informed Ms T that she had not heard of the added detail clearly identifying semen.
As a consequence of Ms T’s call, a Senior Constable H of the W Police Station attended and spoke with A. Ms T sat in on that interview but did not participate. Senior Constable H recorded the interview on audio tape, which is now before the Court (Exhibit 4), and provided notes of the conversation, which are Exhibit 6. The tape is not entirely clear and the notes are in abbreviated form.
During the interview, A repeated earlier key disclosures, including the fact that she had to touch and rub her father's private part for a long time, that the father said that if she did not, he would kill her, and that the father touched and rubbed her private part on the skin on the side of her private part.
There are a number of other important features of this interview which need to be noted. Firstly, it is clear that A and the mother had been involved in discussion about the investigation process prior to A talking to Ms T. Further, A said she was aware that the police did not believe her in the earlier interviews and that they thought her mother was lying and should go to gaol. A said she was not lying and that she wanted her father to go to gaol instead.
It needs to be observed that A's affect when discussing issues was quite flat.
Whilst one needs to be careful when analysing such matters, particularly if a child has already repeated like allegations on a number of occasions, the total lack of affect each time A discussed her father’s threat to kill remains puzzling and could tend to undermine the veracity of what A was saying in that regard.
The other striking feature of this interview recorded by Constable H in her written notes, and confirmed by Ms T, is that when Constable H returned to the allegations of A touching her father and the father's touching of A, she appeared to spontaneously mimic the acts of masturbation by, firstly, cupping her hand and moving it up and down and, secondly, by the use of one finger and moving it up and down.
Ms T was to discuss issues of sexual abuse with A on one further occasion on 9 March. Again, curiously, given the gravity of the disclosures made on that occasion, this information is not included in Ms T’s affidavit of evidence-in-chief. However, it is clear that Ms T did record those disclosures at that time in her file notes which were compiled contemporaneously and that she reported the matter to her manager, Ms R, at around that time.
On 8 March, the mother had reported to Ms T that A had disclosed details of digital penetration and rape. Ms T asked the mother to bring A in to speak with her, which she did on 9 March. Ms T said that, during this conversation with A, the child explained that her father rubbed the side and middle of her genitals and then inserted one or two fingers inside her private part. She also explained that her father had lifted her leg, held it up in the air and put his private part inside her. She stated that he moved his body and made his private part move in and out fast.
A stated that white stuff came out of his "pee-pee" and onto the bed and that the father made some funny noises. She stated that her father’s pee-pee was soft to start and then became hard. A stated that sometimes she would bleed and her bottom would sting.
A number of important observations need to be made about the totality of the evidence relating to A’s disclosures:
(a) At face value, A’s disclosures are grave indeed.
(b)Some disclosures clearly follow discussion between A and her mother about such matters.
(c)The escalating nature of the disclosures is noteworthy and a matter of concern. One poses the question, why would A open up and tell about rubbing and touching in earlier interviews and overlook, or not mention, acts of digital and penile penetration? At the same time, notwithstanding features of escalation, there is otherwise a striking consistency about a number of the essential recurring elements to A’s disclosures.
(d)It is at least potentially telling that, despite clear indications of penetration, no physical evidence of penetration, injury or bleeding was observed by the mother, or any other significant adults, or subsequently in a medical sense.
(e)Another feature to be considered is that it is perhaps surprising, given the gravity of the abuse alleged, that the mother did not detect any apparent adverse impact upon her daughter in the time the parties were together.
In terms of the further context of these disclosures and events of January, February and March of 2006, it needs to be observed that, during much of that time, the mother was engaged in extremely bitter domestic violence proceedings against the father, during which exercise she was severely taken to task by the father's barrister and was observed to display a great deal of anger, bitterness and volatility, even in the confines of a Court room.
The children were taken into care in late January/early February and play therapy was arranged for A. In the sessions A had with Ms S, she did not make any disclosures, although it does need to be observed that these sessions were only at the preliminary introductory stages and it would be dangerous to draw any firm conclusions one way or another from such an indirect and abridged exercise.
In supervised contact organised by the Department, A was observed to relate to her father in a relaxed, comfortable and affectionate way. Although the mother reported that, after the return of the children to her care, A continued to make repeated and new disclosures to her, the issue of sexual abuse was not again referred to or investigated, apart from the mother's reference of Ms T on the 8th and 9 March.
A restraining order had been issued against the mother preventing her from taking A for further evaluation. The mother said she felt restrained, not only by those orders, but by the earlier actions and warnings of the Department. The Independent Children's Lawyer engaged Dr G, psychiatrist, to interview the parties and the children and to provide a family report.
Dr G saw A on 23 March and again on 9 May. On the first occasion when A was asked if she knew why she was seeing Dr G, the child volunteered that she was there to say what her father did. A said she did not want to see her father "because he had sex with me".
When questioned further by Dr G, A apparently exhibited some concerns and told Dr G that she did not want her Dad to know. It is clear, for whatever reason, that Dr G was finding it difficult to have A engage well on the topic. As a consequence, Dr G asked A if it would be easier for her to do a drawing. A agreed to do so.
Dr G described how A drew a bed, but had difficulty drawing figures laying on the bed. She described how A had a couple of false starts in the drawing process. Dr G says that A then drew her father with a penis and then scribbled over the penis and attempted to draw another figure. She initially placed herself lying beside her father, but then drew another picture of herself lying with her vulva region close to the father's penis and, whilst doing so, told Dr G that her father had put his private part in her.
A copy of that drawing is attached to Dr G's first report included in her affidavit filed on 16 June 2006. In that report, Dr G commented upon the explicit nature of A’s drawings and observed that those drawings reflected a sexual awareness far in advance of the child's stated age. Dr G speculated about the prospects of such drawings being based upon actual experience or coaching without expressing a clear view and, of course, that is now the task that falls to this Court. In her oral evidence, Dr G verbalised the obvious fact the drawings are both significant and disturbing.
Having observed upon the nature of the allegations and the matter of context, I return to other ancillary matters.

The Presentation of the Children

For obvious reasons, the proper focus of this particular inquiry relates to the presentation of A. During the key times of investigation and review, A's presentation has been largely unremarkable. She presents as an intelligent, pleasant girl, coping with her schooling and not experiencing any difficulty socially in her school environment. She gives most of the appearances of being well cared for. Apart from the sexual precociousness referred to by Dr G in the context of her solicited drawings displaying an understanding of matters sexual beyond her years, A does not present with any other evidence of any sexualised preoccupation of play, or any other behavioural problems which might be expected, given the gravity of the extent of the abuse alleged.
Whilst the mother reports A becoming increasingly anxious about the prospect of seeing her father, that is not reflected in the vast bulk of evidence of the detached observers. Of course, the father and his witnesses attest to a close relationship between A and her father, and the effect of the combined observation of a wide range of experts, investigators and supervisors is to the effect that A exhibits an entirely healthy, comfortable, relaxed and affectionate interaction with her father.
Whilst abuse and attachment are not mutually exclusive, in this case, there have not only been allegations of gross sexual abuse on a number of occasions, but such abuse is also said to have been accompanied by threats of a most serious kind relating to the killing of the subject child and her mother and young sister. At face value, a 6 year old child is likely to find such threats terrifying and disturbing, and some prospect of observable fear or reservation would be much more likely.
Given the gravity of the alleged abuse and the gravity of the threats, one would have expected signs to have emerged at the time of abuse and threats, and to have noted some anxiety in the child's interaction with her father. The lack of any such presentation is a matter of significance to be taken into account in support of the father's denials.
On the other hand, there are some aspects of A's presentation during the interviews which require careful consideration and which could indicate that some credence should be given to what she was saying.
Firstly, during all three recorded interviews, A appeared quite relaxed, articulate, responsive and able to focus, even during those interviews when she was making serious accusations against her father.
When questioned about details of abuse, she was not heard to resort to the uncertainty so often encountered of "I don't know", or the giveaway line of "Because Mummy told me". There was little evidence of prevarication or uncertainty. Further, there was little by way of obvious indicators of coaching, a subject to which I will return. To the contrary, there appeared to be a broad and telling consistency in the content of A's disclosures made to her mother, her step-grandmother, Ms T and during the second and third interviews.
However, like so much in this case, different conclusions might be drawn from such observations of the child. Evidence of A's controlled demeanour has also been considered by the experts, Ms W and Dr G as potentially casting some doubt upon the reliability of her spoken word. Dr G observed that A's lack of affect when discussing serious issues was puzzling and Ms W was to comment that A was very matter of fact-ish in her telling and not connected emotionally with the serious topics under discussion. Those observations could equally be made of A's demeanour during police interviews reviewed by the Court and could tend to add weight to the prospect that the child was repeating rehearsed lines, rather than actual experiences.

The Submissions of Counsel for the Parties and the Children - Issues of Fabrication, Coaching and Contamination

Necessarily, all three counsel focused very heavily on the child's disclosures and the letters and drawings produced by her, and commented upon the prospects of fabrication, coaching and contamination.
Counsel for the mother submitted that the Court should accept the disclosures at face value and find that there is little evidence to justify any conclusion to the effect that the disclosures were part of any deliberate campaign on the part of the mother, or that any contamination which did exist was sufficient to justify anything less than giving substantial weight to A's disclosures.
Counsel for the father submitted that the Court should not rule out fabrication or that, in the alternative, there was so much which indicated coaching of the child, or contamination of the investigative process and the child's thinking, that little, if any, weight could be placed upon the various disclosures made by her.

On the other hand, there are features of A's disclosures which I have highlighted which make them quite telling and inherently believable. I found the actual process of disclosures emerging from the interviews reviewed by the Court as quite persuasive.
When one adds to that the consistency of the disclosures made by A to a wide range of observers over a wide range of time, and her failure to implicate her mother in those disclosures over that period, further value attaches to such evidence. When one then adds the disturbingly accurate responses in the form of A’s spontaneous demonstrations and drawings, it is impossible to dismiss the prospect that A has been describing some actual experiences, rather than introduced falsehoods.
In the end result, and only after having given the matter most careful consideration over the many weeks of the hearing, I have arrived at the conclusion that the totality of the evidence leaves me in the unsatisfactory position, from the point of view of the parties and A, of being neither able to rule in or out the prospect that A has been sexually abused in the past by her father.
That confused state of mind is such as to prevent me from making the type of positive finding which would provide the Court and the parties with clear outcomes and clearer futures. That same uncertainty, and the existence of contamination, also prevent me from being in a position to clearly particularise the nature and extent of any such abuse.
Those determinations lead me to consider the supplementary question of issues of unacceptable risk. That requires an examination of the magnitude of any risk of harm if the children are exposed to contact with their father.
The problem for the father in that regard is that all incidents of abuse identified by A in her disclosures represent most grave acts of abuse. Doing the best I can with all of the evidence and all of the attendant uncertainties, I think the greater likelihood is that, if there was sexual abuse, it was more likely to be of the type of episodes of mutual masturbation demonstrated by A and that, on a sliding scale, the prospect of some acts of oral stimulation is the next most likely, with the prospect of actual sexual intercourse or penetration the least likely.
In some ways, that exercise might be seen to be largely academic because the prospect of repeated episodes of sexual touching is, itself, sufficient to draw the Court to a conclusion that A may be in need of protection in the future. If episodes of that type have occurred in the past, it is illustrative of a total breach of trust and, in the absence of admissions and therapy, is such clear evidence of the inability to set appropriate boundaries as to leave one without any confidence on the issue of future breaches of the very same boundaries.
Particulars of the alleged abuse are severe and any further exposure to such abuse would necessarily be extremely harmful to either of the children. In those circumstances, the father is clearly not a candidate for full-time care or for any ongoing unsupervised contact.

The Children's Future Living Arrangements

That outcome brings into focus the residual contest between the mother and the maternal grandmother for the full-time care of the children. A convenient starting point is to observe that, based on the assessments of the experts engaged in the matter and my own assessments of her evidence and presentation, I have absolutely no doubt that the maternal grandmother represents a very viable option for the care of the children.
I accept she has been entirely motivated by a genuine concern for the welfare of the children. She has been entirely vindicated in relation to the concerns she has raised. I find that she will be able to provide the children with a high standard of physical care. I accept that she is likely to be met with the additional task of dealing with two children who are stressed and struggling with the separation from their mother, and with one child who has been the victim of emotional abuse and possible sexual abuse. I find that, as challenging a task as that may prove to be, the maternal grandmother presents as a person of considerable insight and sensitivity and a determination to do whatever is necessary to help these children through this most difficult time in their lives and that she would see fit to include accessing appropriate professional help when necessary.
I also accept that the maternal grandmother would be compliant with Court orders and that she does genuinely adhere to the value of the children's relationship with their parents, despite her own difficulties with each of them from time to time, and that she would foster any appropriate relationship between the children and their parents. Related to that, I am convinced that, armed with the findings of this Court, the maternal grandmother would vigilantly and effectively supervise any contact between these children and guarantee their safety.
Of course, all of those observations beg the question. Even on her own case, the maternal grandmother acknowledges that the question of the children residing with her does not arise unless the Court concludes that it is no longer in the children's best interests to reside with the mother.
It needs to be acknowledged at the outset that that conclusion is one the Court needs to be extremely cautious about reaching. These children have been in the primary care of their mother throughout their lives. In the last two years, they have effectively been in her sole care.
S is but 3 years of age and she would literally know no other life than that in the full-time care of her mother. In many ways, the children's presentation is such that they give the appearance of being at least adequately, if not well, cared for. They appear to be reaching appropriate milestones and there is no evidence suggesting that they are exhibiting any signs of emotional or behaviour problems. A's attendance at school and participation in class appear to be good.
However, there is, at the same time, a substantial body of evidence which, if accepted, would indicate that the mother's parenting capacity is seriously compromised and that the children's welfare could be in jeopardy if they remained in her full-time care.
The father, members of his family, the maternal grandmother and her husband, all gave evidence of a long history of erratic behaviour and chaotic lifestyle of the mother. They contend that her life is riddled with conflict, which impacts upon her own well-being and that of those around her, and impacts adversely upon her capacity to properly care for her children.
Those witnesses have each raised serious concerns about the mother's heavy drug use and dependency and its necessary adverse impact upon her parenting. Many of the serious concerns raised by the father and the maternal grandmother have been corroborated by the observation of some of those who have dealt with the mother in the past. I have already referred to the observations of the refuge workers, Departmental officers, police officers and school authorities. However, the evidence which most graphically crystallises these mattes asserted against the mother is the most telling testimony of her own supportive friend, Ms N. That evidence, when read in conjunction with the testimony of the father and the grandmother on such matters, enables me to draw the following conclusions:
(1) The mother continues to be a regular and heavy user of marijuana.
(2)The mother engages in unrestrained denigration of the father and the maternal grandmother in the presence of, and directly with, the children, and A in particular. I am convinced that the level of such denigration would be extreme and that the children would be required to deal with the notion that both their father and the maternal grandmother are wholly evil people.
(3)The mother sees fit to continue to discuss issues of sexual abuse with A in ways either designed to, or which have the effect of, reinforcing in A's own mind on a regular basis that she is the victim of sexual abuse. The extent of that abusive behaviour is most graphically illustrated by the alarming testimony of Ms N, which appears in the body of par 10 of her affidavit filed on 14 May 2007. That evidence indicates that, not only has the mother seen fit to openly discuss issues of domestic violence and sexual abuse in the presence of A, but that she was prepared to take such discussions to the next level by suggesting that A may have taken some pleasure from the abuse by the remark, “They enjoy it, as it is their first sexual encounter.” In her oral testimony, Ms N said that, throughout her time with the mother and children in Brisbane and in Sydney, the mother was continually discussing issues of sexual abuse in the presence and hearing of the children. One can only begin to imagine the confusion and damage caused to A in particular by such discussions and, in particular, by the suggestion I have just referred to.
(4)Even after making proper allowance for the stress, the dysfunctional relationship, investigations and of the trial process itself, the descriptions of the mother would indicate that the children were consistently under the adverse influence of, or in the care of, a woman who has been all but out of control, not only in relation to the unbridled discussions of sexual abuse, but also regularly exposing the children to a wide range of highly damaging behaviour, including angry outbursts, verbal abuse and obscene language. Ms N also described other features of the mother's treatment of A which illustrate an abject blurring of the boundaries between mother and daughter and carer and caree. Most of the matters described by Ms N are the very concerns raised by the father and the maternal grandmother in relation to the mother's personality and parenting.
Dr G originally reached a tentative preliminary diagnosis of borderline personality disorder based on her own observations and assessments of the mother to that time. When confronted with the evidence of Ms N, Dr G said that, if such testimony was accepted, her preliminary assessment would become a firmer one.
I have accepted that evidence and the similar evidence of the father and the maternal grandmother to the same effect. The totality of that evidence would suggest that the mother's erratic behaviour is, indeed, longstanding and that her life is, indeed, punctuated by repeated fractures of relationships of significance. Significantly, since the earlier assessments, the one relationship she drew most comfort from during the trial process was, itself, fractured before that trial process concluded.
I find that the mother has a personality which attracts and causes conflict. It leaves her vulnerable to isolation and the regular breakdown in important support networks. It leaves open the prospect the children will also be exposed to such conflict and isolation and to the damage caused by the fracture of important relationships they develop through the mother in the future.
More directly, the evidence establishes that A, herself, has become the victim of the mother's volatile personality and inability to cope with stress. She has already been the target of her mother's entirely unacceptable aggression and verbal abuse. One must necessarily be concerned that the prospect of serious conflict between A and her mother is only likely to increase as A grows older and exercises some independence of thought, and perhaps engages in some of the testing behaviour so often observed in growing children.
These are all serious issues which suggest that the mother has failed to properly and safely parent her children. What compounds the problems for the mother and her children is the fact that the mother has absolutely no insight into the fact of, or the consequences of, such behaviour. She is in abject denial and does not present as a person amenable to change. No doubt, part of this arises from the very nature of personality disorders themselves.
Dr Sayers validly points to the fact there are not presently any clear-cut symptoms of any consequential damage caused by such emotional abuse. If that is the case, then, in my view, it is necessarily merely a matter of good fortune. I have little doubt that such behaviour and abuse is damaging and that sooner or later symptoms of that damage will emerge.
To illustrate that point, one does not need to see immediate signs of damage in cases of sexual abuse to conclude that a child is damaged by such abuse. Similarly, the damaging effect of gross and persistent emotional abuse is

self-evident and I do not need to have present examples of deterioration in a young child to convince me of such matters.
In addition to such emotionally abusive behaviours, the mother's ongoing heavy use of drugs is a significant problem in itself. The level and frequency of the mother's use suggests a dependency. Such heavy use would result in the mother being regularly in a state of some intoxication, which would, in turn, necessarily have an adverse impact upon her functioning and her capacity to parent her children. The mother's ongoing use of marijuana leads her to expose the children not only to the regular use of the illicit substances themselves, but also exposes them to criminal conduct, which leaves the mother and children exposed to the consequences thereof. The clearest example of this was the mother's willingness, or need, to carry drugs on an international plane flight whilst she had the children in her company and to conceal those drugs in her underwear.
Evidence again emerges from the testimony of Ms N which would suggest that, in addition to the daily use of marijuana, the mother may well be consuming other illicit drugs. In any event, I conclude that it is likely that the mother will continue to see the need for regular and extensive use of drugs and that such use is likely to exacerbate the components of her personality disorder and to compromise her functioning and parenting in a variety of serious ways.
Having regard to the serious findings I have made in relation to both the mother's extensive drug use and her abusive treatment of A, in particular, I have concluded that leaving the children in the mother's full-time care exposes them to an unacceptable risk of significant emotional harm.
I note that Departmental officers developed similar concerns very early on in the investigative process, which concerns were sufficient in their mind to justify removal of the children from the mother. In every respect, this Court knows so much more about the mother which is adverse to an assessment of her parenting and the assessment of ongoing risks to the children. I would expect that, armed with the further information, perhaps through access to this judgment, the high probability is that the Department would move to have these children taken into care in light of such further information.
Most often, the Court is only left with a choice between parents. In this case, the maternal grandmother is here very much because of her belief that the children could well end up in care again. I think her concerns are well based. Happily for this Court and for these children, there is a better option available. Rather than being placed in care with strangers, this Court has the option to place the children with a loving, committed and capable grandmother. For the reasons I identified earlier, I am satisfied that not only is that a viable option, it is clearly the one that best serves these children's interests at this stage of their lives, having regard to my findings.
It is acknowledged that a separation of these young children from their primary care-giving mother will be difficult and traumatic for them. However, I have concluded that, with the valuable assistance of the grandmother with whom they have a good relationship and who will, in turn, enlist the services of any necessary professionals, the girls are likely to cope with such change.
Given the gravity of the matters I have identified in the mother's household, I am of the view that the risks of leaving the children with the mother far outweigh those associated with the removal from their mother and placement with the maternal grandmother.

Problematic Issue of Time with Parents

Of course, the children have strong attachments to each of their parents. The relationship between the father and the girls has been observed to be very positive during the two years of assessments. It is obvious the children derive much pleasure and benefit from their contact with their father. Of course, the only contact the children have enjoyed since separation has been day time, supervised, safe contact. I am satisfied that, if the children can be provided with ongoing, safe, supervised, day time contact in the future, firstly, that they are not at any risk of being exposed to sexual abuse and, secondly, that they would be likely to continue to draw benefit from such contact and from such a relationship with their father.
As I have indicated in an earlier context, I am satisfied that the maternal grandmother is entirely child focused and would be vigilant in the discharge of any duties imposed upon her designed to protect the children. I am of the view that she represents a viable option to supervise the father's contact. The father himself has demonstrated a compliant attitude under the scrutiny of long term supervision since separation. If the children are safe in the maternal grandmother's care, then such supervised contact regime provides real advantages to the children, in that it will enable them to enjoy more meaningful, relaxed and traditional contact with their father.
Regrettably, I have concluded that, at least at the present time, the mother is not a suitable candidate for unsupervised contact. She will, obviously, be greatly distressed by this decision and one is left to speculate about its impact upon her apparently fragile and volatile personality. On instructions, the Court was advised of the fact that the mother was struggling to cope with the trial process itself and she felt unable to attend in the last days of the hearing. For my part, I also observed the mother to be presenting in a most emotionally, fragile way.
The mother has demonstrated in the past that she has been unable to constrain aspects of her own personality and conduct for the benefit of her children. This decision is hardly likely to appease her sense of injustice. Indeed, to the contrary, the mother has declared to this Court that she will never rest until she proves the case against the father. She says, further, that, if she disagrees with the decision of Court, she will not only exercise her right of appeal, but she will pursue the matter in the media.
Given the history of the matter, it is inevitable, in my view, that the mother would see fit to expose her children to her likely extreme reactions to this decision. It is also likely that she would continue to campaign to establish sexual abuse in the presence of, and with the direct involvement of, A.
In terms of unsupervised contact, the mother's heavy, ongoing drug use is another matter of major concern.
I believe that the children, and A in particular, need to be protected against any prospect of ongoing exposure to the negative and damaging aspects of the mother's behaviour described in this judgment, and that the need is likely to persist for some time, resulting in the necessity of ongoing supervision.
The maternal grandmother has said during the course of the trial that she would be willing to do whatever is best for the girls. She has also indicated that she would do anything that was necessary to redress the breakdown in her relationship with her daughter. I am satisfied that the maternal grandmother would, indeed, do so for the benefit of her grandchildren. I am satisfied that the maternal grandmother has the capacity and the commitment to try to make contact between the children and their mother work in the best interests of the children.

Unfortunately, I am much less confident about the mother's willingness and capacity to abide by any such regime. She was adamant before me that she would never have any ongoing relationship with, or association with, her mother in the future. It is only to be hoped that, if there is any good to come out of this whole tragedy, it is one which may create a necessity which may dictate to the mother the need to recognise that her best chance of having meaningful contact with her own children will require her to address her own problems with her mother. As so much of her animosity is born of a sense of betrayal by her mother, she will need to accept the reality that, rather than being betrayed by her mother, her mother was, in fact, at all times properly motivated and focused upon the shared interest they have in the welfare of the two young children involved in this case. I trust that one day the mother will, indeed, see that it is probably only the intervention of her mother which has kept these children out of foster care. The mother needs to address her own problems, including her excessive drug use. She also needs to work on repairing her own personality difficulties and her relationship with her mother. At the very least, she will need to respect the vital position the maternal grandmother now occupies in terms of her children's future.
I accept that imposing upon both the maternal grandmother and the mother the prospect of being forced together in a supervised contact regime is problematic and is likely to break down unless that notion is embraced by each of the female adults. As I say, I am confident the maternal grandmother would do her best. I cannot impose this upon the mother if, to do so, is to expose the children to conflict between the two women and the inevitable damage.
If the mother and the maternal grandmother are not agreeable to a supervised contact regime then, regrettably, the only other option I see available to ensure that the children have some safe contact with their mother would be contact at a contact centre.
Obviously, given the gravity of the issues canvassed against the mother and the father and the total mistrust and lack of communication currently existing between the mother and the father, and the mother and the maternal grandmother, this is not a matter currently appropriate for a shared parental responsibility order.
I propose to make an order which will recognise the desirability of consultation between all three adults if viable, and I will give the parties that option. However, given the matters I have referred to, I do not propose to impose upon the maternal grandmother a compulsory order which would require consultation and agreement.
RECORDED : NOT TRANSCRIBED

I certify that the preceding two hundred and thirty nine (239) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate:

Date:

[2007] FamCA 633

18 June 2007

Key Legal Topics

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Family Law

Legal Concepts

Remedies

Injunction