Stratfield & English
[2008] FamCA 54
•30 January 2008
FAMILY COURT OF AUSTRALIA
| STRATFIELD & ENGLISH | [2008] FamCA 54 |
| FAMILY LAW – CHILDREN – CHILD ABUSE - Sexual abuse |
| Family Law Act 1975 (Cth) |
| M & M (1988) FLC 91-979 Briginshaw & Briginshaw (1938) 60 CLR 336 S & R (1999) FLC 92-834 Johnson & Page (2007) FLC 93-344 |
| APPLICANT: | Ms Stratfield |
| RESPONDENT: | Mr English |
| INDEPENDENT CHILDREN’S LAWYER: | Simone Wunderlich |
| FILE NUMBER: | MLC | 4069 | of | 2007 |
| DATE DELIVERED: | 30 January 2008 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Dessau J |
| HEARING DATE: | 10-13 & 17-19 December 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Hoult |
| SOLICITOR FOR THE APPLICANT: | Marshalls & Dent |
| COUNSEL FOR THE RESPONDENT: | Mr Sweeney |
| SOLICITOR FOR THE RESPONDENT: | McCracken & McCracken |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Combes |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Agricola Wunderlich & Associates |
Orders
IT IS ORDERED
6.That all previous orders shall be discharged.
7.That the mother and father shall retain equal shared parental responsibility for the long term decisions affecting the child … born … June 2003.
8.That the child shall live with the mother.
9.That the child shall spend time with the father supervised by either of the father’s parents as follows:
(a) From 10.00am to 2.00pm each alternate Sunday, on two occasions commencing on Sunday 3 February 2008, and thereafter;
(b) From 10.00am to 5.00pm each alternate Sunday for two occasions, and thereafter;
(c) From 10.00am to 6.00pm each alternate Sunday for two occasions, and thereafter;
(d) Each alternate week-end from 10.00am to 6.00pm Saturday and 10.00am to 6.00pm Sunday on six occasions;
(e) Each Wednesday from 5.00pm to 7.00pm commencing 6 February 2008.
10.That the child shall spend time with the father on an unsupervised basis as follows:
(a) Each alternate week-end from 10.00am to 6.00pm Saturday and 10.00am to 6.00pm Sunday on three occasions and thereafter;
(b) Each alternate week-end from 10.00am Saturday to 6.00pm Sunday on two occasions, and thereafter;
(c) Each alternate week-end from 5.00pm Friday to 6.00pm Sunday until the child starts school when the time shall commence from the end of school Friday and conclude at the start of school Monday or Tuesday after a public holiday or curriculum day;
(d) From 5.00pm to 7.00pm each Wednesday until the child starts school when the time shall commence at the end of school Wednesday and conclude at the start of school Thursday;
(e) The regime set out in paragraphs 4, and 5(a) to (d) of these orders shall continue through all school term holidays in 2008 until the 2008/2009 Christmas school holidays when the child shall spend time with the father for one week as agreed, and failing agreement, commencing 1 January 2009;
(f) From the first term school holidays in 2009, for half of all school holidays as agreed, and failing agreement, the first half;
(g) From 6.00pm Christmas Eve to 11.00am Christmas Day in alternate years commencing in 2008;
(h) From 11.00am on Christmas Day to 4.00pm on Boxing Day in alternate years commencing in 2009;
(i) From 11.00am to 6.00pm on the Saturday immediately preceding the child’s birthday in 2008, if not already a contact period pursuant to these orders, supervised by either of the father’s parents;
(j) On the child’s birthday commencing in 2009 from 6.00pm to 8.00pm on a school day and for four hours as agreed if on a week-end;
(k) Commencing in 2009 from 6.00pm on the Saturday immediately preceding Father's Day until the start of school the next day.
11.That for the purposes of paragraph 4 of these orders, change-overs shall take place outside the main entrance of the Safeway Supermarket, K.
12.That for the purposes of paragraph 5 of these orders:
(a) Change-over, when the mother delivers the child to the father, shall take place at the McDonald’s Restaurant situated on W Street; and
(b) When the father delivers the child to the mother, change-over shall take place at the McDonald’s Restaurant situated on E Street
except where change-over would ordinarily occur at the child’s kindergarten or school.
13.Commencing in 2009, the child shall spend time with the mother as follows:
(a) If the child is spending time with the father on Mother's Day, he shall instead return to the mother at 6.00pm on the Saturday immediately preceding Mother's Day;
(b) On the child’s birthday, if it falls on a Wednesday when he is staying over-night with the father, he shall be with the mother from 6.00pm to 8.00pm; and
(c) On the child’s birthday, if it falls during the father’s week-end, for four hours as agreed.
14.That the mother shall by herself, her servants or agents be restrained from bringing the child into contact or allowing the child to be brought into contact with Ms P.
15.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
16.That the appointment of the Independent Children's Lawyer shall be discharged.
17.That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Dessau delivered this day will for all publication and reporting purposes be referred to as STRATFIELD & ENGLISH
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 4069 of 2007
| Ms Stratfield |
Applicant
And
| Mr English |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The child is 4½ years’ old. His mother alleges he has been sexually abused by his father. His father adamantly denies the allegations.
At the start of the case the mother sought orders for no contact at all between the child and the father, or at the very least, only fully supervised time. By the end of the case she sought professional supervision until 2014.
The father wants frequent unsupervised time with the child. He recognises the need for a gradual re-introduction. The child has not seen him since December 2006, except briefly in July 2007 for the purposes of the preparation of the Family Report.
At the end of the evidence, the Independent Children's Lawyer (the ICL) submitted that I could not find that the child has been sexually abused, or is at risk of sexual abuse by his father. The ICL proposed orders for the father to spend substantial and significant time with the child, but after a six-month period of supervision. That is in order to re-introduce contact, to safeguard the father from further allegations, and to support the mother in adjusting to and coping with the child spending time with his father.
BACKGROUND
The father is aged 35 and is an engineer. The mother is aged 30 and is an office worker. She is in a relationship and has been living with her partner Ms J since July 2006. They and the child live with the maternal grandparents.
The child’s parents met in 2000/2001. They had a sexual relationship between about September and December 2001. Thereafter they maintained a close, rather ambiguous relationship. The mother described it as a close platonic relationship. The father clearly remained in love with the mother. She had to admit there was some intermittent sex, including when the child was conceived in 2002. He was born in June 2003.
After the child’s birth, the father mainly lived with the mother and her family, occupying a bedroom with the child, and taking an active role in his care. That arrangement, and the parents’ close relationship, continued until 6 August 2004, when the child was 14 months’ old. I will return to the detail, but in short, on that day the mother found the father masturbating while in the shower with the child. She immediately ordered the father out of her home. They have not lived together since then.
Between August 2004 and 7 December 2006, the husband had regular contact with the child, supervised by the mother. Proceedings started by her in 2005 were finalised with consent orders on 13 October 2006. They provided for supervised contact until early 2008. Then it was to gradually increase to unsupervised alternate week-ends by the middle of 2008.
On 7 December 2006 the mother and the father took the child to see a Wiggles concert. The father took the child to the toilet several times. The mother says that evening the child made disclosures of sexual abuse by his father. Face to face contact then stopped altogether. Since June 2007 there has been some telephone contact.
MATERIAL RELIED UPON
The mother relied upon:
·Her Form 1 Application filed 13 April 2007
·Her Form 4 Notice of Abuse filed 13 April 2007
·Her Trial Affidavit sworn 18 September 2007 filed 19 September 2007
·Affidavit of her partner Ms J sworn and filed 28 September 2007
·Affidavit of her mother sworn 18 September 2007 filed 19 September 2007
·Affidavit of her father sworn 18 September 2007 filed 19 September 2007
·Affidavit of a counsellor Ms P sworn 5 August 2007 filed 7 August 2007
The father relied upon:
·His Form 1A Response filed 25 June 2007
·His affidavit sworn and filed 19 September 2007
·Affidavit of his father sworn and filed 19 September 2007
·Affidavit of his mother sworn and filed 19 September 2007
·Affidavit of Ms E sworn 18 September 2007 filed 19 September (not cross-examined)
·Affidavit of a counsellor Dr D sworn 18 September 2007 filed 19 September 2007 Psychological Report of the father dated 13 September 2007
The ICL relied upon:
·Family Report of Mr N dated 18 July 2007
·Report of Dr T annexing Psychiatric assessment of the mother and the father dated 28 November 2007 (Exhibit ICL 2)
·Report of Dr T annexing Psychiatric assessment of the father dated 20 February 2006 (Exhibit ICL 1)
RELEVANT LEGAL PRINCIPLES
Part VII of the Family Law Act1975 was substantially amended in July 2006 by the Family Law Amendment (Shared Parental Responsibility) Act. Section 60B(1) sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:
“(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):
“(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA). Section 60CC(2) and (3) set out the primary and additional considerations for the court in determining what is in the child’s best interests. I will return to the detail below. Section 60CC(4) provides that the court must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent, and the court must have regard in particular to events that have happened and circumstances that have existed since separation (see s 60CC(4A)).
There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA). The presumption relates to the allocation of parental responsibility, not to the time the child spends with each parent. The Act provides for certain circumstances in which the presumption shall not apply, or may be rebutted. I need to return to this, because in this case the mother wants to have the sole parental responsibility but the father wants it to be shared.
The court is then required to consider whether an order for the child to spend equal time with each parent would be in his best interests (s 65DAA (1)(a)). In this case, no-one has asked me to consider equal time.
The court must then consider whether the child spending substantial and significant time with each parent would be in his best interests (s 65DAA (2)(c)). In this case the question is whether the father should spend any unsupervised time at all with the child. The answer very much depends on my finding on the alleged sexual abuse of the child.
The approach in deciding a case involving an allegation of sexual abuse was considered by the High Court in M and M (1988) FLC 91-979. At page 77,080, the High Court said:
“… the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.”
The High Court recognised though that findings on the sexual abuse question will have an important, perhaps a decisive impact on the resolution of the ultimate best interests issue.
As to the relevant standard of proof, the High Court emphasised that a judge should not make a positive finding that the allegation was true unless satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw and Briginshaw (1938) 60 CLR 336. It quoted Dixon J (at p.362 of Briginshaw):
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
In a subsequent case of S and R (1999) FLC 92-834 the Full Court of the Family Court warned that to establish a serious allegation such as sexual abuse, the “utmost caution” was needed, given the maker of the statement was a child who was not subjected to cross-examination and whose statement was incapable of being properly tested.
The Full Court considered the applicable standard of proof in its recent decision in Johnson and Page [2007] FamCA 1235. At paragraph 69, the court cited with approval the approach taken by the Honourable John Fogarty in his paper entitled ‘Unacceptable Risk – A Return to Basics’ ((2006) 20 AJFL 249). In particular, the court said (at para 72):
“We also agree with Mr Fogarty’s view that reference to the Evidence Act, rather than Briginshaw, is appropriate particularly having regard to s 140(2)(c) of that Act.”
Section 140 of the Evidence Act provides:
“(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject‑matter of the proceeding; and
(c) the gravity of the matters alleged.”
I must then consider the allegations of sexual abuse on the balance of probabilities taking into account the matters in s 140 of the Evidence Act.
In M and M, the High Court acknowledged there would be many cases in which it was not possible for a judge to make a positive finding that sexual abuse had taken place. He or she would then need to determine if there was a risk of sexual abuse, and assess the magnitude of that risk.
The Court went on to consider the magnitude of risk that would justify a judge in denying a parent access to a child, and concluded that the test was best expressed by saying that a court should not grant custody or access (now an order in relation to with whom a child will live, or spend time), if it would expose the child to “an unacceptable risk” of sexual abuse.
In B and B (1993) FLC 92-357 the Full Court referred to the “unacceptable risk” test in M and M, and added (at p. 79,778):
“The ‘unacceptable risk’ test is therefore the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access.’ In other words, where the court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.”
The issue of sexual abuse has been considered by the Full Court in several cases since the 2006 Family Law Act amendments. Those decisions do not appear to disturb the established principles in relation to the test of unacceptable risk.
THE ISSUES
The issues in this case can best be considered within the framework of the matters in s 60CC of the Act. I will deal first with the primary considerations under s 60CC(2).
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
In general terms, it is beneficial for a child to have a meaningful relationship with both his parents. In this child’s case, the benefit must be weighed against any risk of sexual abuse in his father’s care.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
This aspect clearly lies at the heart of this case. I will deal with:
·A summary of the mother’s account of the child’s disclosures and behaviour
·The father’s response
·The expert evidence of:
Dr T
Dr D
Ms P
Mr N
·The circumstances surrounding the child’s disclosures and behaviour
·Opportunity
·Conclusion re sexual abuse
A Summary of the Mother’s Account of the Child’s Disclosures and Behaviour
Until August 2004 the father was integrally involved in the child’s care. Everybody agrees that he was a close and loving father who shared a strong relationship with his son.
On 6 August 2004 the mother found the father masturbating while showering with the child. She said the child had an erection at the time. According to her, when confronted about it, the father said “I can’t help myself, I’ve got a problem and need help.” He agreed to undertake counselling. She immediately moved him out of her parents’ home and stopped him from seeing the child. When contact resumed it was supervised by the mother or her father.
As noted above, the mother initiated proceedings in the Federal Magistrates’ Court, which culminated in final consent orders on 13 October 2006. They provided for contact supervised by the mother or her nominee until 2008, when it was to be gradually phased in to unsupervised overnight contact.
The parties agree that leading up to the end of 2006 the father was seeing the child frequently in the presence of the mother (and by then her new partner Ms J with whom she started living in July 2006), and the supervised contact was going well.
On 7 December 2006 the mother and the father took the child to a concert performed by the Wiggles at Melbourne Park Tennis Centre. The mother allowed the father to take the child to the toilet unsupervised on three occasions. She said they were gone for about 15 minutes on the last occasion. He said it was significantly less. On the way home, the father took the child into his office, unsupervised, for a little over seven minutes.
The mother says that the child that night was quiet and clingy. Uncharacteristically, he wet his pants. She says that following some questioning (to which I will return), the child said that his penis hurt and that “Daddy hurt it.” Then he pulled back his foreskin, pointed to the tip of his penis, and said “Daddy touched it in there”. The mother became extremely distressed.
Since December 2006, the father has only seen the child in the course of the preparation of the Family Report. He has had telephone contact since June 2007, on each Wednesday and Sunday. The counsellor noted a very happy and comfortable exchange between them in his office. The child was clearly happy to see his father. I will return to that.
The mother reported a number of changes in the child’s behaviour since the Wiggles concert, including (in para 32 of her trial affidavit):
“(a)Wanting to rub Vaseline cream over his penis and testicles on a daily basis;
(b)Wetting his pants during the day and night and saying that “it was an accident”;
(c) Chewing on his clothes;
(d) Masturbating himself on a regular basis;
(e) Asking for his dummy during the day and night;
(f)Trying to kiss me on the lips and stick his tongue in my mouth when I have told him repeatedly that children should only kiss adults on the cheek;
(g) Sticking his fingers and some toys into his bottom;
(h) Playing with toys and placing them on his penis;
(i)Exposing his penis, masturbating and asking us to look at it, or kiss it, and it is okay to kiss it because his penis is clean.”
She also reported the various statements made by the child to her, her partner, or in the presence of her parents, as including (see para 33):
“(a)‘My doodah is sore’. [The child] means his penis;
(b)‘My doodah is sore because Dad hurt it’;
(c)‘My doodah is sore and I need cream’. When [the child] is given Vaseline, he rubs this over his penis and testicles;
(d)‘Dad touched me here’. [The child] points to his penis;
(e)‘Dad put his finger in my bottom hole. It tickled, but then hurt’;
(f)‘Kiss my doodah. Its [sic] okay, its [sic] clean’;
(g)‘Guess what? My Dad has got me Aeroplane Lego’. [The child] makes this statement on a regular basis;
(h)‘I need to tell you the truth, but I can’t’;
(i)‘I need to tell you something, but I’m not ready yet’;
(j)‘I’m sad’;
(k)‘I had a really bad dream’;
(l)Daddy touched in here’ referring to the inside of his penis;
(m)‘I saw daddy’s doodah sticking out of his pants’;
(n)‘Daddy’s doodah has hairs on it’;
(o)‘Daddy was hurting his doodah then milk came out’;
(p)‘Daddy told me to kiss his doodah which was salty and gross’; and
(q)‘Daddy kisses me on the lips’.
The mother’s partner, and her parents to a lesser degree, corroborate such statements and behaviours, and that they have been particularly intense after telephone contact, with the child masturbating, or trying to kiss his mother or Ms J on the lips. They also claim a significant escalation in the child’s sexualised behaviours after he saw his father at the Family Report writer’s office in July 2007. But so far as independent adults are concerned, the child has made no disclosures and displayed no sexualised behaviours (although I will deal shortly with what Ms P said she over-heard). In particular, the staff at the child’s child-care centre, although alerted by the mother and her partner to be vigilant, have reported no unusual behaviours.
The Father’s Response
Although the father flatly denies any allegations of abuse at the Wiggles concert, or during any brief periods in which he was out of the immediate sight of the mother during supervised contact, he does make concessions about the incident in the shower in August 2004.
At the start of his evidence he struck me as unduly coy in attempting to draw a distinction between “masturbation” and, as he put it, “fiddling” or “rubbing up and down across my penis a few times”. Ultimately he conceded he was masturbating. That was consistent with his concession from the time of the incident, to the mother, to her father, and to his counsellor, Dr D, just as he had always conceded that such behaviour was “inappropriate”. He has been consistent in his claim that he started to become aroused after the mother walked into the bathroom wearing only a pyjama top. He acted impulsively. It was an isolated incident, and he was sorry. His account has been more consistent than the mother’s, but I will return to that. It does mean though that I accept his account.
The mother relied upon the father’s admission that “I’ve got a problem and need help, as an admission that he was abusing the child in the shower. The father’s account was that when he admitted to a “problem,” he meant in relation to masturbation, not sexual abuse. Despite the obvious ambiguity, the mother steadfastly maintained an interpretation consistent only with abuse. I find the father’s version is the more probable.
His relationship with the mother was complex and confusing. He loved her dearly. Although his love was not returned, she remained very close to him, engaged him in her new sexuality (her first lesbian partner was introduced to her by him, and there was a reference to some sexual activity as a threesome), she confided in him about her sexuality and her sexual experiences, she occasionally had sex with him, and she accepted massages from him on an almost nightly basis. In short, there was enormous intimacy between them, but undoubtedly inconsistent and/or insufficient intimacy to meet his feelings and needs. The expert psychiatrist, Dr T, referred to the imbalance in the relationship. So did the father’s psychologist, Dr D.
The mother relied upon the father’s immediate agreement to undergo counselling as an admission of guilt for abusing their son. Again, the surrounding circumstances give rise to a far more probable reason for his ready agreement. First, the father’s unrequited love for the mother was such that he was likely to have agreed to whatever she said or wanted. I have no doubt that in August 2004, embarrassed by his inappropriate behaviour, he was willing to undergo counselling, and to submit to supervised contact, to comply with her demands. In fact, the issue that he has dealt with in his very many sessions with his own counsellor has largely related to his subservience to the mother (and others) and the need for him to better assert his own needs. In agreeing to counselling, he obviously recognised the necessity to start dealing with and addressing this one-sided and frustrating relationship.
I accept that the father did apologise to the maternal grandfather several days after the event. Again though, I cannot find that such apology was an admission that he had sexually abused the child. I accept that he was apologising for behaviour that he readily and properly conceded was inappropriate.
The Expert Evidence
There were a number of experts involved in the case.
The Expert Evidence of Dr T
Psychiatrist Dr T interviewed the father at first in February 2006. He found no signs or symptoms of a psychiatric condition. He interviewed him again in November 2007. At that time he diagnosed an adjustment disorder with anxious mood, arising from the on-going issues, particularly those emanating from the allegations after the Wiggles concert. He said that condition of itself did not present a risk to the child.
In November 2007 Dr T interviewed the mother. He diagnosed an adjustment disorder with anxiety and some traumatisation (hyper-arousal, flash-backs and disturbed sleep), as a result of her perceptions and experiences in relation to the child’s abuse. He dealt with the possibility of confusion in the mother’s sexual orientation and its possible impact upon the relationship with the father, and confused messages to him. He did note the mother though as presenting as “an apparently caring, intelligent and loving mother of her son.” He noted her as continuing to harbour significant concerns about the father and his ability to father the child.
He noted the father as maintaining his innocence. He also noted the father’s lack of assertiveness in his unrequited love for the mother, that his emotional and sexual needs were clearly not met, and that it would suggest he would be at some risk of engaging possibly in sexually inappropriate behaviour but “whether he did so with [the child] is a matter for evidence”. He noted the father as remaining “angry” and “hurt”.
Dr T emphasised that it was “a most complex matter” in which the court needed to determine issues of fact. He underlined that he had not interviewed the child in the course of preparing his report.
The Expert Evidence of Dr D
Dr D (a clinical psychologist with 30 years’ experience, including extensive experience in cases of child sexual abuse), saw the father for counselling over about 42 appointments between August 2005 and September 2007. I have already referred to some of the issues discussed between them.
It was Dr D’s evidence that the father had at all times openly admitted that his behaviour in the shower included masturbation, that it was impulsive, that he did not believe that his son saw it, but that on any view it was “inappropriate”. Dr D described the father’s account in relation to the shower incident as consistent over the very many times that they discussed it.
Dr D did not agree with all aspects of the mother’s evidence as to what was said during the one interview she attended with him and the father. And he described her reaction to the shower incident as “over the top”. He referred to the “intensity” of her response, to her “lack of moderation,” and that she did not appear to be able to accept that it could have been a momentary impulse of masturbation. He thought there was a “quality of evangelism” about her concerns. It was late 2005 by the time that Dr D saw her and he was unable to make sense of her “over-reaction”. It sounded “alarm bells” to him. He noted her as saying that she “would never trust [the father] with [the child]”, and that the child would have to be over 16, for there to be unsupervised contact.
Dr D said that if such an incident occurred in a family with united parents, it is most likely that the mother would have said “Don’t be stupid. Don’t do it again.” She would have been unlikely to regard it as “sexual abuse”, given the child’s age (14 months) and that he was unlikely to be cognisant of it, at least on the father’s account - an account that was consistent and credible.
Dr D also gave evidence about other aspects of the child’s alleged disclosures, but I will return to that evidence as relevant later.
The Expert Evidence of Ms P
When the mother’s solicitor saw her within several days of the Wiggles concert, she was so distressed when relating her account of events that he immediately contacted a psychologist, Ms P, and referred the mother to see her. Ms P saw the mother and Ms J on 15 December 2006 and then many times throughout 2007. She also interviewed the child on several occasions and conducted an evening home visit.
The mother relied on an affidavit of Ms P, filed on 7 August 2007. At the start of the case, counsel for the father, Mr Sweeney, submitted that I should not allow Ms P’s affidavit into evidence. Counsel for the ICL and counsel for the mother argued that I should, but it would be a question of the weight that I could attach to her evidence. I agreed with them, ruled the affidavit in, and said that I would give reasons for the ruling as part of this judgment. It seems that events have overtaken the need for such reasons. In his final submissions, Mr Sweeney said that he was pleased that the evidence had been admitted. He specifically relied upon it, to show Ms P’s lack of professionalism, her harmful influence on the mother, and her contribution to the mother’s unwavering belief that the child had been sexually abused by his father.
I agree with the closing submissions of Mr Sweeney, and Mr Combes for the ICL, that Ms P’s evidence was indeed unimpressive. Not even Mr Hoult for the mother sought or was able to defend it in any meaningful sense.
First, there was confusion surrounding her role. The mother and Ms P tried to maintain that she was engaged to counsel the mother, but that did not ring true. And although she denied it, I am satisfied that Ms P clearly involved herself in a purported investigation of the sexual abuse allegations. Her conclusion - that it is “highly feasible to believe that [the child] has been exposed to sexual abuse by his father” - and her unequivocal recommendation that the child have no contact with him - goes well beyond what one would expect if she were simply counselling the mother. And, in the course of her engagement, she “interviewed” the child on several occasions, including at a time when there was a specific court order precluding such interview.
I do not accept any confusion on Ms P’s part (or the mother’s) about that court order – its existence or meaning. When Ms P was challenged about having ignored the restraint, she back-tracked as to what she had recorded as an “interview” with the child, and tried to describe it in different terms. It was extraordinary too that contrary to the court order, she then paid a home visit. She purported to attend just to help “the parents” with parenting issues. Of course it meant contact with the child. Her lack of professionalism in secreting herself, in order to overhear bed-time conversation, was surprising for its lack of transparency. She said she did not want “the parents” to know she was listening, but that was less consistent with a counselling role and more consistent with an investigative one.
I was concerned that Ms P was prepared to reach the conclusion she reached, and to make the recommendation she made, without seeming to acknowledge the draw-backs in, for example, not having interviewed the father, and not having observed the child with him. Both Dr D and Dr T were appropriately cautious and professional in that regard. Even Mr N, who saw all the adults, and observed the child with his father, stopped short of any unequivocal recommendations, instead highlighting the various concerns and complexities. Ms P’s approach was in stark contrast.
I was particularly troubled that throughout her evidence Ms P referred to the mother and the mother’s partner Ms J as the child’s “parents”. That showed a fundamental lack of sensitivity to the fact that the father is the child’s parent, and that at the time when the counselling started, Ms J had been living with the mother and the child for only five months.
In addition, Ms P’s expertise in the area of child sexual abuse was brought into question. She was weak on research. She was unable to answer even basic questions about research she herself cited in order to underpin her professional opinions. She gave evidence that if a child chews on his clothes it could only mean sexual abuse. That struck me as an intemperate and narrow interpretation, and was contrary to the more measured evidence of Mr N and Dr D, who both saw that as a behaviour that could be consistent with other childhood anxiety. Similarly, Ms P believed “salty” was an age-appropriate word for a child who was just four years of age. Although Mr N accepted the possibility, his evidence suggested that it is not generally a word one would expect as the description of semen – or anything else – from a child of that age.
I agree with Mr Sweeney that Ms P’s evidence proceeded from a starting-position that sexual abuse had occurred. If her role was to counsel her client, that might not have been an unreasonable approach. However, the fact that Ms P purported to provide expert assistance to the court on the topic of whether or not abuse had occurred, and that she made a recommendation to the court that there should be no future contact between father and son, underlined Ms P’s confusion about her role. I was also concerned that she was pushing a particular position. An obviously non-responsive answer in cross-examination, containing gratuitous advocacy about sexual abuse and the “traumatisation” of women, had to be specifically curbed so she could be re-directed to properly address the actual questions she was being asked at the time.
I will return to Ms P’s evidence below as it related to several specific aspects of the mother’s case.
The Expert Evidence of Mr N
The Family Report writer, Mr N, has a background in child sexual abuse investigations. He appeared to understand his role very clearly, explaining that it was not to investigate the sexual abuse, but to explore the family relationships. In the course of that exploration, aspects of the sexual abuse allegations inevitably arose. He was measured, careful, and balanced in his assessments.
Mr N referred to a number of “very complex issues” in this dispute. He noted that the mother and her partner have apparently documented their detailed observations (he did not see the notes and nor did I, although they were called for in evidence, but I shall return to that). It was of some concern to him that the child’s child-care centre had not reported any worries consistent with the mother’s assertions about the child’s behaviour. He said that:
“…one would have expected such significant and apparently pervasive behaviours to have been observed in settings outside of his home.”
Mr N said in both his report and in court that although some of the child’s behaviours described by the mother (including sucking on his clothes) were indicative of anxiety in a young child, and not just sexual abuse, the behaviours and disclosures of a sexualised nature, if accurately reported, do raise a concern of sexual abuse. The child would be referring to matters that were beyond the experience of a child of his age, and the frequency and range of disclosures and behaviours, as reported by the mother, are usually suggestive of inappropriate sexual experience. If the mother and her partner’s reporting of significant levels of masturbation, including “masturbating like an adult”, trying to put his tongue in their mouths, and continually wanting cream on his penis were accurate, then in Mr N’s professional opinion, it would go beyond the normal bounds of a child playing with his genitalia and may suggest sexual trauma.
However, Mr N acknowledged that extreme care is needed when questioning a 3½-year-old child, given the power imbalance between a child of that age and an adult. A child wants to please and can be led into reinforcing whatever the interviewer is seeking. He agreed that if the interview process is “tainted” at the start, the child’s subsequent comments and behaviours must be viewed in that light.
In summary, it was apparent when Mr N gave evidence that, on the one hand, he was concerned that on the mother’s account the child had made such detailed comments. On the other hand, he was concerned that on the night of the Wiggles concert, she had possibly associated certain comments with sexual abuse because of the “lens” through which she was looking because of her response to the shower incident in 2004. Whilst in his report Mr N dealt with the dichotomy of the mother fabricating the allegations, or the allegations being true, in court he discussed a third possibility. That is, that the mother was pre-disposed towards thinking the worst, and therefore unwittingly seized upon what the child said, so that subsequent disclosures were tainted by the way he was questioned by her and her partner.
Mr N noted that the child’s presentation and comments during the assessment process did not corroborate any of the allegations or observations made by the mother. He did not make any comments suggesting sexual abuse or inappropriate sexual activity. While Mr N did not specifically explore the issue with him, there was nevertheless opportunity for the child to indicate any issues of concern with adults in his life, and in particular his father. At paragraph 60 Mr N reported:
“There was specifically no indicators of concern in either his behaviours or comments relating to his father.”
That said, Mr N referred to the difficulties in obtaining clear information from a child of this age. Sometimes multiple sessions are needed for the child to be willing to reveal disclosures. Extensive clarification of language and terminology is required because of the child’s limited cognitive and emotional capacity and limited verbal skills. It is therefore generally difficult to obtain definitive information from a child of this age and developmental stage in the course of a Family Report interview process.
Mr N found that the child did not appear to be displaying any significant or distressing distortion in his thinking about his father. His reaction to the prospect of seeing him was very positive. There was nothing to suggest the child was anxious or fearful. He “appeared completely comfortable in his father’s presence.” Mr N said that although a child can be ambivalent, that is not only negative, in his response to an abusive parent, in this case, given the mother’s description of the level of the child’s disclosures and behaviours, he would have expected some negative response between the child and his father. But there was none at all.
Reflecting the various complexities, Mr N who, unlike Ms P, Dr D, and Dr T, saw all the parties including the child with his father, could not reach a definitive conclusion. However, he raised the various issues in a helpful manner and was of the view that even if the sexual abuse allegations are not proven, or I find that there is not an unacceptable risk of abuse, I should still order a period of supervision. First, that would protect the father. Secondly, it would enable the mother to undertake her own counselling, for support during the period of re-introduction between the child and his father.
The Circumstances Surrounding the Child’s Disclosures and Behaviour
The mother’s Mindset Before the Wiggles Concert
The mother is an intelligent, articulate and well-spoken woman. In describing events that she observed, and the child’s behaviours and disclosures, she appeared to be in touch with reality, reasoned and reasonable. She was at pains to point out that, far from jumping to any conclusions about abuse, she was open-minded and indeed hoping against hope that the allegations were not true.
Mr N observed (at para 57) that the mother did not present to the writer as “a person whose sense of reality is seriously compromised.” He also noted that she did not present as having perpetrated a campaign of removing the father from the child’s life, given that she had been so open to his involvement in the earlier stages. He noted that if the allegations are found to be true, then the mother’s concerns about the child’s safety have been appropriate. In evidence, he was clear that the mother appeared genuine and unshakeable in her view that the father had sexually abused their son. Dr T also made overall favourable observations of her.
I had the benefit of watching and listening to several days of expert cross-examination of the mother. That cross-examination raised a number of significant concerns with the version given by her in relation to the sexual abuse allegations. I emphasise that it did not raise a concern that she had deliberately or consciously set out to alienate the father from the child’s life. But it seriously undermined her claim that she had been open-minded about what might have occurred, and that she had approached things from the point of view that hopefully there was no abuse. The import is as to whether the child’s disclosures and behaviours in December 2006 (when he was 3½), and since, have been truly spontaneous, free from any unwitting suggestion, leading, or reinforcement by her, and/or her new partner Ms J.
The evidence leads me to conclude that contrary to the mother’s claim, in early December 2006, she was hyper-sensitive to the prospect of abuse. I cannot say whether the fact that she herself was abused as a 12-year-old child may or may not have been relevant. I base my finding on a number of other aspects of the evidence.
First, the mother’s evidence was that when she awoke on the morning of 6 August 2004 and heard the shower running and “rhythmic knocking noises”, she immediately assumed that the father was masturbating. That is what prompted her to rush into the bathroom. Although it is completely understandable that what she saw in the shower dismayed her, and that she found the father’s conduct completely unacceptable, she made no allowance for the possibility of a foolish mis-judgment on his part. She clearly assumed only the worst: that he was wilfully abusing their 14-month-old son. It was particularly presumptuous on her part, especially in light of her evidence – and his admission – that throughout their relationship he sometimes masturbated in the shower. In fact, it is something she had asked him to stop once their sexual relationship was over, as they continued to share a bathroom.
The mother’s story in relation to precisely what was seen and what was said on that day has changed over time. It has developed into a version that paints a graver picture than she first reported.
In her original police statement, within several days of the incident, the mother described the child as “standing up to the right side of [the father].” In her trial affidavit she described the father as “masturbating in front of [the child’s] face.” In her evidence from time to time she referred to the father as masturbating “right in [the child’s] face”. The original version leaves open the possibility that he was masturbating and was reckless as to the possible effect on his infant son. The latter version does not.
Shortly after the event the mother told police that the child’s penis was erect. By the time she gave evidence she described it as “a huge erection”. The father said he thought the child “had a wee” and “90% of the time he had an erection when he’s had a wee”. The mother would not entertain any explanation inconsistent with sexual abuse. I emphasise that it would have been part of a scene that was likely to alarm the mother, and the father’s behaviour was not appropriate or acceptable, but I am left with the concern that she has from the start thought only the worst. That is the lens through which she has made her observations, and her observations have become more exaggerated with time.
The father agrees that when the mother walked into the bathroom he was embarrassed and tried to tuck his penis between his legs. The mother has sworn that when she first confronted the father about why he had been masturbating in the shower he said “I don’t know why, it just felt good.” She said that later he made a full admission to her saying “I can’t help myself, I’ve got a problem and need help”. The mother’s father said the father made a similar admission to him. The mother quoted that to indicate that he had a problem in relation to masturbating in front of the child. As noted above, in the course of the evidence it became clear that the more reasonable inference, in line with his version, was that he was conceding he had a problem with masturbation itself. I have noted the ambiguity in the parties’ relationship, and the father’s resulting confusion and frustration.
The mother’s response was immediately to assume sexual abuse and she was distressed. She described herself as “stunned” and “in absolute shock”. She was upset and crying. She went straight to her sister’s house to discuss her distress and seek advice. Then she drove to be with her parents in regional Victoria. Within the next few days, she packed all the father’s belongings and ordered him out of the home. She took the child to be examined by a doctor, and she reported the incident to the police. She obtained an interim intervention order on the child’s behalf against his father, she immediately insisted on fully supervised contact, and she started family law proceedings. I have already noted the intensity of her views, as observed by Dr D.
The mother maintained that between the incident in August 2004 and when she and the father took the child to a Wiggles concert on 7 December 2006, she was well on the way to rebuilding her trust in him. She said she was allowing him to spend small periods of time with the child outside her immediate view. The evidence however belies her claim of such trust at that time.
In October 2006 she had agreed to orders re-introducing unsupervised contact between father and child. However, that was still not to start until 2008, 15 months’ off, and what would have been some 3½ years’ after the shower incident. Moreover, a number of times in her evidence she referred to agreeing to those orders “on legal advice”, giving the distinct impression that it was not because of any genuine confidence on her part. And, the freedom that she said she had started to give to the father appeared to be scant indeed. On her account there were only very short periods where she allowed the child out of her immediate sight, and always close by, for example in another room or part of the open-plan house.
The mother’s Mindset on the Day of the Wiggles Concert
By the day of the Wiggles concert, according to the mother, she trusted the father enough to allow him to take the child to the toilet. But in fact she obviously remained extremely suspicious of him. She worried that he asked the child several times if he needed to go to the toilet. She timed how long he took on the third and last occasion when he did take the child to the toilet, and again how long he took when he called into his office with the child on the way home. She timed that visit at seven-odd minutes. It is clear that in the evening when Ms J came home from work, the mother related that level of detail to her, and her discomfort about it.
That evening, soon after Ms J had put the child in bed with a book, and returned downstairs to the mother, the child appeared at the top of the stairs, having wet his pyjamas. The mother said that Ms J asked him why he had not gone to the toilet. He did not answer. The mother then went to the top of the stairs and asked the child why he had wet his pants. He said it was “an accident”.
In her affidavit, the mother said that she next asked the child if it hurt, because she thought he might have a urinary tract infection, even though she had to concede that he had not suffered urinary tract infections in the past. He had in fact suffered a red and sore penis over an extended period but the mother had not been forthcoming about that in her evidence, and she never maintained that such redness or soreness led to her questioning the child in this instance. In any event, she said that he replied “Yes it stings a bit”, and that when she then asked him to show where it hurt, he pulled his foreskin back and said “In there” and pointed inside his penis. She asked “Why does it hurt?” and according to her and Ms J, the child replied “Daddy hurt it.”
The mother’s evidence in the witness box unfolded differently, and the difference was significant. She conceded that what she in fact said to the child after he described his wet pyjamas as an “accident” was, “It is really important you tell mummy the truth.” That is consistent with her state of mind and suspicion. Her evidence was that he then said, “Daddy hurt it”. With that she hugged him tightly, kissed him, thanked him for telling her the truth, and quickly left the room in “an absolute state”. She described everything as “surreal” and she was in floods of tears. She collected herself and went back into the child’s bedroom after her partner had given him a bath. She asked him to show her what happened and she said that the child pulled his foreskin right back and pointed towards the tip of his penis and said “Daddy touched it in there.”
The mother’s claimed open-mindedness about what might have occurred cannot be sustained on the evidence. She was suspicious leading up to 7 December 2006. She was suspicious that day, and suspicious when talking to her partner that evening. Her immediate reaction to the child’s wet pyjamas was clearly one of suspicion. Her concern about a urinary tract infection simply did not ring true given the child’s medical history. And, it is hard to imagine why the child was cautioned that “It is really important to tell mummy the truth” if it were about a potential urinary tract infection. It was far more likely to have been prompted by a concern of abuse, than any medical concern.
Although the child at the time had been toilet-trained for some time, he still wore a nappy at night. The mother refused to entertain the prospect that having gone to bed late, after a very big outing, he had simply fallen asleep while reading and wet his pyjamas (he did not have his night nappy on at the time). Similarly, her response to “daddy having hurt it” was one of being absolutely distraught, without contemplating that it might have occurred in the course of toileting, or for example when the child was riding on his father’s shoulders, as he was for parts of the day. Simply put, no innocent explanation occurred to her. And despite claiming on-going open-mindedness, in cross-examination she revealed that she found it “devastating” later when the child made no disclosures to the SOCA Unit police. She was obviously not comforted when Dr H at the medical centre no physical signs of abuse. And when she saw her solicitor within a few days she was so distressed he needed to immediately arrange counselling for her.
On the evening of the Wiggles concert, the mother and Ms J sought the counsel of various family members, and took the child to hospital where he was examined by a doctor on duty. The next day they took him to the medical centre, had him examined by a specialist paediatrician there. They contacted the Footscray SOCA (Sexual Offences and Child Abuse) Unit. Importantly, in the course of all that, it is hard to be clear about what conversations took place in front of the child. For example at the hospital, there were conversations around his bed, and some lack of clarity as to whether he was fully asleep or, as was likely in the circumstances, awake or partly awake at the time.
The Role of Ms J
Ms J is clearly very committed to the mother and the child. My concern is with her level of involvement in this case. Far from offering any objective perspective, she seemed to become immediately immersed in the belief that the child was seriously abused by his father. Although in December 2006 she was still very new in the mother’s and the child’s life, she participated fully with the mother in virtually every aspect of this litigation, much of the counselling, and in the collection of evidence. She is an intelligent woman. She is sufficiently clever to know the answers that she thought would be most favourable to her partner’s case and seemed to struggle with answers that were potentially at odds with that. In particular, she was at first evasive relation to whether or not she believed the child had been abused.
Ms J’s support of the mother is understandable given their relationship, but I am troubled by a blurring of lines in her role in the child’s parenting, particularly in such a new relationship. I shall return to that.
The mother’s and Ms J’s Note-taking
Ms P told the women it was important to record evidence of the child’s disclosures and behaviours. They said that they made detailed notes as directed, recording the range of behaviours and disclosures set out in the affidavit material. There are several concerning aspects of the mother’s and Ms J’s reporting of events.
First, although in some instances the mother’s parents have observed comments or behaviours that the mother reports, the child has not made disclosures to any expert or independent person. His behaviour at the child-care centre has raised no concerns according to the workers there, although the mother and her partner took careful steps to ensure that every staff member received written notice to watch for and note particular behaviours. It was clear that the women were active and forceful in their dealings with the centre and their efforts to have staff observe the child’s behaviours. They drafted and re-drafted not only a notice to staff, but minutes of a meeting between them and the staff and director.
Secondly, during a period when they claim that the child’s disclosures and sexualised behaviours were intense, the women purportedly stopped taking notes. They claimed they “needed a break”. That claim did not sit logically with the way they otherwise approached this case. Moreover, despite repeated requests, neither they, nor Ms P, to whom they said they gave copies of notes, were able to produce any notes. Nor were the notes produced by their solicitor when called for, although that may have been a likely source, given their claim that their many notes were used to prepare their affidavits.
There were also other unsatisfactory aspects of the mother’s and Ms J’s evidence.
The Child’s Bleeding Bottom
In opening the mother’s case, Mr Hoult referred to the issue of the child suffering bouts of a “bleeding bottom”. It was clearly raised in relation to the issue of sexual abuse, although he conceded that there was “no evidence of a medical nature”.
In an affidavit in April 2007 the mother swore that she noticed the child’s bleeding bottom in the period leading up to the Wiggles concert in December 2006. She swore that it stopped as soon as contact stopped, the clear implication being that it was caused by the father’s interference. However she never raised it as a concern when the child was examined by Dr H at the medical Centre on the day after the Wiggles. She said that was because at that point the child had not disclosed that his father had interfered with his anus. That explanation did not ring true from an intelligent, hyper-vigilant mother, if it had genuinely been a matter of concern.
It seems it was opportunistic for the women to refer to the child’s bleeding bottom as an issue in this case. It emerged that when they had sought medical advice about it between September and December 2006, they had been assured by the child’s doctor that it was probably caused because of his constipation. That was consistent with the evidence of the maternal grand-mother, and Ms J, that at times the child would hold their hands and strain during bowel movements. That, and the Medical Centre doctor’s finding of nothing untoward upon his examination of the child’s anus (a fact omitted from the mother’s affidavit), were apparently insufficient to make this issue go away so that – unfairly in my view – it “hovered” in the case as a support for a finding of abuse.
The Child’s Red and Sore Penis
In her affidavit, the motehr swore (at para 16) that when she took the child to the doctor after the shower incident, the doctor’s opinion was “that [the child’s] foreskin had been pulled back and this was unlikely to occur in children of [the child’s] age.” Again, the clear implication was of abuse. In fact, in the report the doctor also noted “no evidence of physical abuse”. Most significantly though, until she was specifically cross-examined about it, the mother omitted evidence about the child having suffered on-going problems with his penis, including fungal infections, and complaints by the child that it hurt when he urinated.
The mother’s evidence was that after August 2004 (once contact was supervised), the child’s penis was no longer red – again implying previous abuse that had stopped once the father’s time was strictly supervised. However, when confronted with a medical referral form (Exhibit F2), the mother had to concede that the child’s doctor referred him for circumcision as late as 31 January 2006 (well after the shower incident and well before the Wiggles incident, and during carefully supervised contact) as the child felt “uncomfortable and gets fungal infection”.
Other Aspects of the Mother’s Evidence
The mother gave Mr N a misleading impression, compared to her version in court. Her evidence was that leading up to 7 December 2006, she trusted the father so that she allowed him to briefly take the child to other parts of the open-plan house. But her account to Mr N suggested substantial on-going abuse of the child before the day of the Wiggles concert. She told Mr N that the child “feared” certain rooms in her home, a “fear” she believed was associated with the alleged abuse by the father. She explained that the child’s toy room and bedroom were the rooms where the child informed her that his father would “touch his doodah”. Such an account is extraordinary. On her version to me, there was simply no opportunity for such abuse, unless she was suggesting that the father was bold enough to quickly abuse the child with her and often Ms J, and/or one or both of the grand-parents, close by in an open-plan home. I will return to the issue of opportunity, below.
Ms A from the Department of Human Services noted that the mother reported the child as “happy and settled” and that “his behaviour had returned to normal” in the period leading up to her interview on 30 May 2007. That was completely inconsistent with the mother’s claims of the child’s on-going abnormal sexualised behaviour during that period. The mother said that Ms A incorrectly noted their conversation. Ms A was not called to give evidence. Accordingly, I cannot find Ms A’s notes to be correct. But I can observe that it is peculiar that it was during the very period when the mother and Ms J claim that the child’s sexualised behaviours and disclosures were so pervasive, that they did NOT take notes. It raises the suspicion that the child’s behaviour and disclosures were not as the mother and Ms J now recall.
Questioning a Young Child
I accept the expert evidence that comments suggestive of sexual abuse, when made by a young child, particularly about matters beyond their appropriate childhood experience, must be taken and considered seriously. But I also note and accept the expert evidence that when dealing with a 3½-year-old child, the manner in which he is questioned is integral to the reliability of his disclosures.
In this case the alleged disclosures commenced at a time when the child was very much on the back foot. The usual power imbalance between adult and child was pronounced. He had wet his pants. His mother was clearly upset about it. Her anxiety and suspicions about his father played out with pressure on the child: that he must “tell her the truth”. I cannot be satisfied that what the child is alleged to have said was indeed “spontaneous”, or that his mother and her partner are entirely reliable in their recollection as to how the disclosures unfolded. I am not confident that he was or has been free of questioning by them, and cannot be confident that he has not responded to their questioning and reinforcement, given their shared level of concern and anxiety.
The expert evidence also persuades me that context and surrounding circumstances are of vital importance in assessing a child’s disclosures. In this case, the most graphic illustration of the importance of context relates to the observation by the mother and Ms J that the child has wanted “to rub Vaseline cream over his penis and testicles, on a daily basis” since the Wiggles concert. That was an important part of the child’s purported sexualised behaviour, relied upon by them as suggesting sexual abuse by the father. So was their evidence that the child made disclosures “most nights”, and that since 7 December 2006 they had “massive problems” settling the child at bed-time.
It emerged in cross-examination that when the child needed soothing at night, giving him cream to apply to his genitals was their “fairly typical response”. The mother said “It comforted him. It was the only way I knew how to get him to sleep.” Around mid-2007 she and her partner were trying to break the child of the habit. The mother ultimately had to concede that the child “probably” knew that by saying “Daddy hurt his doodah”, he would get the soothing cream. She also had to concede that the child had probably asked for the cream on the night Ms P was secreted near his bedroom just before she heard him whimpering, and recorded him as saying “I have a sore doodah. I need cream on my doodah. My doodah hurts. Daddy hurt my doodah.”
Ms P had placed great import on those disclosures, relying upon them in part as the basis for her recommendation that the child should not have any contact with his father. In cross-examination she was forced to concede that the mother’s supplying of cream to the child could be a “re-inforcer” in the child’s mind, and that the disclosures in her presence did not necessarily verify the mother and her partner’s account, as she had previously thought. She had to agree it raised a question about “contamination” of the child’s disclosures.
Dr D was - as he described it - “more than somewhat concerned” about that evidence. In his professional opinion it gave rise to a “reasonable hypothesis” that the Vaseline ritual could make the child make disclosures.
Again, by reference to context, I must consider one of the most serious allegations of the child purportedly describing “milk” coming out of his father’s penis (with the import of the father allegedly ejaculating in the child’s mouth). What emerged in cross-examination was a diary note made by the mother on 1 January 2007 (when the child was still 3½) as follows:
“• 9.30am [the child] came into our bedroom and got into bed. [Ms J] got him milk and he lay down with us. A few minutes later he said ‘Uh oh, the bed’s all wet.’ I said, ‘That’s okay, how did that happen?’ ‘He replied the wee came out.’ [Ms J] said ‘Oh okay, are you sure it’s not milk?’ He said ‘No it’s wee.’”
Mr N was questioned about that. He agreed that there was the possibility of a word-association for the child between “milk” and “wee”. If the child had made previous clear statements about “wee and milk” this would not be so concerning. If he had not – and it is not clear in this case that he had– then it confounds the interpretation of what the child allegedly said.
Opportunity
It is important to consider the question of opportunity when considering the gross sexual abuse that allegedly occurred in the course of the Wiggles concert at Melbourne Park. It allegedly included the father’s own masturbation, his masturbation of the child, his digital anal penetration of his son, and his ejaculation into his son’s mouth.
The father’s evidence was that there were at all times people around at the concert and parents and young children wandering in and out of the toilets. He said he took the child to the urinal, not to a cubicle, and that it was absurd to suggest that these events could have occurred in that setting.
The mother says that the child’s description was that he went to the “big man’s toilet” and that he described his father holding him up to a toilet. She said he would have referred to a “wee wall” – his term for a urinal – if that is where he had been. His description led to her unshakeable view that he was in a cubicle with his father.
Although I cannot be definitive about it, I can observe that even in a cubicle (but the more so if at a urinal) it is at least an unlikely setting for abuse on the scale alleged by the mother. Moreover, although the mother placed a sinister connotation on the number of times the child went to the toilet in a concert she alleged took no longer than 60 to 90 minutes, it became clear in the course of cross-examination that the outing at the Tennis Centre in fact took place over the course of some hours. Given that, it is not unreasonable that the father asked the 3½-year-old child several times if he needed to go to the toilet, and that the child wanted to go. The mother placed a sinister connotation on that.
The mother was then critical of the time they were away at the toilet, particularly on the third and last occasion, when she says it was for 15 minutes. The father disagrees and said that it was more like 6 or 7 minutes. He said that in that time they went up stairs, along a walk-way, and then up another set of stairs, to find a toilet. On the way back to their seats, he lifted the child onto his shoulders to stop and watch the concert for a bit from where they were standing.
The mother described a very significant change in the child’s behaviour upon returning from the toilet. Her description was inconsistent with what appear to be happy and relaxed photographs of the child in the car on the way home. It was also inconsistent with the fact that on the way home, the child readily joined his father while briefly calling into the office, leaving his mother in the car, apparently without complaint or concern on the part of the child.
The mother’s account, of such brazen and varied abuse in such a short time and in a public setting, is not inherently probable. The father’s account, that parents and children were wandering around, particularly in and out of the toilet, is inherently probable in the setting of a pre-schooler’s concert. I can take judicial notice of short concentration, restlessness, and the likely need for toilet breaks amongst that population.
Conclusion re Sexual Abuse
In the course of his distress and frustration about the allegations, before this hearing, the father had suggested that the mother and Ms J were “man-hating lesbians”. He backed down on that line in the course of his evidence. It was appropriate to back down, because the evidence did not support that. What it did support was that the mother, and through her, her partner, was suspicious and anxious about the father’s behaviour with the child by the time of the Wiggles concert on 7 December 2006. That is understandable in the light of the shower incident several years earlier. My concern is that she and her partner were not forthcoming about their level of suspicion, it seemed to have remained unduly high, and Ms J was so readily and fully enlisted into the cause.
The child’s reported behaviours and disclosures raise the spectre of sexual abuse. However, viewed in the context of the mother’s suspicion, subsequently verified, underpinned, and promoted by Ms P’s unprofessional approach, I cannot be satisfied that the child’s disclosures and behaviours were not tainted, suggested, led and/or reinforced. To the contrary, there is a very real likelihood that they were, from the very first moment when, on the back foot for wetting his pants, he was questioned by his mother.
The evidence in relation to the application of cream to his genitals is the starkest example of how dysfunctional the parenting had become in relation to this issue after the Wiggles concert. I am concerned that in their minds, the mother and Ms J have under-emphasised anything that did not support a claim of abuse, and over-emphasised anything that could do so. I cannot rely on their claims that the child’s disclosures have been truly spontaneous, or his behaviours not reflective of general anxiety and/or unwitting suggestion or re-inforcement by them.
I am not satisfied on the balance of probabilities that the child has been sexually abused by his father or that he faces an unacceptable risk of such abuse.
I must now consider the additional considerations.
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The child is too little to express a meaningful view. But as already noted, his comments, disclosures, and behaviours are important. So too is his comfortable and happy response upon seeing his father. Necessarily, these things must be weighed in the balance with all the complex evidence.
(b)the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
The child is a greatly loved little boy, by his mother, her partner, and the mother’s extended family with whom he lives.
Clearly in the past the child also shared a close and loving relationship with his father and his family The bonds appear to have survived a long period of separation, given the child’s spontaneous description of being “happy” when Mr N said he would see his father, and given their positive inter-action.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The mother’s willingness to facilitate and encourage the close relationship between father and child was evident in the early parts of the child’s life. There can be no argument about that. There can be no argument either that some vigilance on her part after the shower incident was understandable, but I accept Dr D’s account of her being “over the top” by only entertaining the deliberate abuse of her son and rejecting any explanation consistent with the father’s mis-judgment.
I am concerned by a shift in her attitude to the father’s future continuing relationship with the child since late 2006. Obviously a belief that her child had been sexually abused would make her unamenable to the concept of on-going contact. But in my view her relationship with Ms J has also impacted.
Ms P’s approach to the mother and Ms J as the child’s “parents” was apparently not corrected by them. Further, I observed the mother on several occasions in the course of her evidence refer to “our son” in a context that was clearly referring to her and Ms J, not her and the father. Ms J’s very prominent role in the child’s life and in this case, given that her relationship with the mother was still very new in December 2006, raises the spectre that since the mother has found what she described as her “soul-mate” or “life partner” she is rather content with a neat new family unit uncluttered by the baggage of her previous life.
I do not suggest that the mother has deliberately coloured the child’s attitude against his father. She has not. It is more a subtle shift in dynamics, since the time when the mother and father were friends and the mother saw them as parenting the child together. I am concerned that there has been a change in her mindset to a new family unit. Ms J has not been a moderating influence in any apparent way. She has viewed everything through her partner’s lens, without any filter. She has quickly formed a very strong alliance with the mother and a strong bond with the child. That would not be a cause for negative comment, save for the risk that the father can thus be unwittingly marginalised.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
It will be a significant change for the child to again see his father. He showed his happiness and comfort to Mr N, but it will be a major change in his routine. Ms J has become an important adult in his life, but it is imperative that the child also be able to enjoy the relationship with, and the role-modelling and influence of his father.
There is no doubt that the mother would benefit from setting in place supports so that she is then better able to support the child through changes.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
This aspect would only be relevant if I were to put in place orders as sought by the mother, for fully paid supervision for many years. Otherwise there is no practical difficulty in the child spending time with his father, even with a period of supervision to start.
(f)the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs:
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Apart from the vexing issues that I have had to consider, I am left in no doubt that the mother is a loving mother and that she and her new partner are capable of caring well for the child’s daily needs. Similarly, the father, despite his inappropriate behaviour in the shower in 2004, has shown himself as a capable parent.
I hope that this case will have an educative effect on them all. I trust the father recognises that his behaviour in the shower must not be repeated. I hope that the mother will, in the light of this detailed airing of evidence, be able to move in her views of the father, and that Ms J will support her in that. I hope too that they will not overlook the importance of the child’s father in his upbringing, and that they will appreciate the child’s need for his care and affection as well as theirs.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
The child is still very young. He has lost significant bonding time with his father. Although he is being raised in a close and loving household, with the affection and care of his mother and her partner, as well as extended family, he has been told by his mother that his father is “away at work”. It is important that he be able to assimilate his father into his life and that he be given a proper understanding and perspective as to his parentage.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not relevant.
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
Beyond considering the issue of sexual abuse, as I have done in detail above, these considerations are not relevant.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It is my hope that the child will be given the opportunity by his parents to move forward without being the subject of further litigation. I hope that the orders I will make will be most likely to promote that opportunity.
CONCLUSION
Given my findings on the issue of sexual abuse, I am satisfied that the presumption of equal shared parental responsibility applies and has not been rebutted in this case. It is in the child’s best interests for both parents to participate in the major on-going decisions about his life. As I have noted, it is particularly important for the child to be able to understand that in addition to the mother and her partner, he has the benefit of his father’s involvement.
I am satisfied too, for the reasons I have given, that it will be in the child’s best interests to be able to spend regular time with his father. I agree with the ICL that to protect the father, and to support the mother while the relationship is being re-established, there should be a period of supervision. It is not because of any perceived need to ensure safety for the child, other than the emotional safety of calmness and clarity around the time he spends with his father.
The mother’s proposal for very short periods of time with his father, fully supervised for another seven years, would not allow the full re-introduction of the father into the child’s life, and would not promote the child’s best interests.
The ICL proposed a six-month period of supervised time on Wednesday evenings for dinner, as well as gradually increasing time at week-ends, arriving at alternate week-ends from Friday to Sunday, each Wednesday for dinner, school holiday, and special occasion time, without supervision.
The father proposed a gradual increase in time on a supervised basis over about 14 weeks, and thereafter unsupervised time, on alternate weekends from Friday to Monday in one week and Monday to Tuesday in the other week, with school holidays building to half once the child starts school.
Given the length of this case, the inevitable depth of emotion the issues have raised, and the impact on the child, in my view the ICL’s gently timed re-introduction is appropriate.
The ICL and the father proposed the father’s parents or either of them to act as the supervisors. Although there was an issue as to how much they understood of the allegations in this case - and it was clear they supported their son - this is not a situation where I am ordering supervision to prevent the risk of sexual abuse. Accordingly, their understanding or views on that topic are not front and centre. I am satisfied that they are loving and caring grand-parents who in the past have had a good relationship with the child. Their participation can serve the dual purpose of protecting the father from fresh allegations, and offering at least some comfort to the mother that loving grand-parents will be present. Overall, they would be a better option than a professional supervisor, taking into account the likely expense, time constraints, and false formality, of a professional arrangement.
I note that the question of the paternal grand-parents’ supervision was not directly explored with them in evidence. I need to be satisfied that they understand the role of supervision, and that they are willing to fulfil that role before any supervised time commences. I will hear submissions about that.
Otherwise, I agree with the father that his alternate week-ends should ultimately start at the end of school Friday and conclude at the start of school Monday (or Tuesday after a public holiday or curriculum day) so that his role in the child’s schooling and life can be increased, and the chance for conflict between parents decreased. However, that should start when the child starts school. Until then, on balance, week-ends should start at 5.00pm Friday and finish at 6.00pm Sunday, to take into account the child’s age and stage.
I agree with the ICL that Wednesday evening dinners provide an excellent opportunity for such a young child to remain in touch with the parent he otherwise does not see for some time in a two-week cycle. However, it should be until 7.00pm, not 8.00pm, to take account of his age and bed-time. It should increase to over-night from after school on a Wednesday to the start of school Thursday once the child starts his prep year. Again, that ensures the benefit to the child of his father’s involvement in his day to day life, but only commencing when he has had the chance to re-adjust to spending increasing time with his father.
The father has suggested telephone contact. I am not going to order that. The child’s behaviour around it has been the point of much conjecture. For now, it is fraught. And the orders will in any event ensure frequent time together. I hope for the child’s sake in the future that his parents will re-introduce telephone contact.
I agree with the need for special occasion time between father and son. Subject to any submissions about the detail, I have incorporated that into the orders.
The father seeks an order that the mother attend counselling. The ICL does not, but the evidence clearly supports the concept as good for her, and thus good for the child. I fear it would be counter-productive to order that she seeks such help. There is no doubt she cares deeply for the child. With that thought to the fore, I hope she will seek the help and guidance of an experienced and objective counsellor. I cannot stop her from seeing Ms P although I hope she might go elsewhere. I can stop her from allowing the child to be brought into contact with Ms P. The father seeks such an order. Based on the evidence, it is entirely reasonable. I shall make that order.
THE ORDERS
Subject to submissions about the paternal grand-parents’ understanding and acceptance of the role of supervisors, and subject to any other submissions as to the form of all the orders, I propose orders as follows:
1.That all previous orders shall be discharged.
2.That the mother and father shall retain equal shared parental responsibility for the long term decisions affecting the child born in June 2003.
3.That the child shall live with the mother.
4.That the child shall spend time with the father supervised by either of the father’s parents as follows:
(a) From 10.00am to 2.00pm each alternate Sunday, on two occasions commencing on Sunday 3 February 2008, and thereafter;
(b) From 10.00am to 5.00pm each alternate Sunday for two occasions, and thereafter;
(c) From 10.00am to 6.00pm each alternate Sunday for two occasions, and thereafter;
(d) Each alternate week-end from 10.00am to 6.00pm Saturday and 10.00am to 6.00pm Sunday on six occasions;
(e) Each Wednesday from 5.00pm to 7.00pm.
5.That the child shall spend time with the father on an unsupervised basis as follows:
(a) Each alternate week-end from 10.00am to 6.00pm Saturday and 10.00am to 6.00pm Sunday on three occasions and thereafter;
(b) Each alternate week-end from 10.00am Saturday to 6.00pm Sunday on two occasions, and thereafter;
(c) Each alternate week-end from 5.00pm Friday to 6.00pm Sunday until the child starts school when the time shall commence from the end of school Friday and conclude at the start of school Monday or Tuesday after a public holiday or curriculum day;
(d) From 5.00pm to 7.00pm each Wednesday until the child starts school when the time shall commence at the end of school Wednesday and conclude at the start of school Thursday;
(e) The regime set out in paragraphs 4, and 5(a) to (d) of these orders shall continue through all school term holidays in 2008 until the 2008/2009 Christmas school holidays when the child shall spend time with the father for one week as agreed, and failing agreement, commencing 1 January 2009;
(f) From the first term school holidays in 2009, for half of all school holidays as agreed, and failing agreement, the first half;
(g) From 6.00pm Christmas Eve to 11.00am Christmas Day in alternate years commencing in 2008;
(h) From 11.00am on Christmas Day to 4.00pm on Boxing Day in alternate years commencing in 2009;
(i) From 11.00am to 6.00pm on the Saturday immediately preceding the child’s birthday in 2008, if not already a contact period pursuant to these orders, supervised by either of the father’s parents;
(j) On the child’s birthday commencing in 2009 from 6.00pm to 8.00pm on a school day and for four hours as agreed if on a week-end;
(k) Commencing in 2009 from 6.00pm on the Saturday immediately preceding Father's Day until the start of school the next day.
6.Commencing in 2009, the child shall spend time with the mother as follows:
(a) If the child is spending time with the father on Mother's Day, he shall instead return to the mother at 6.00pm on the Saturday immediately preceding Mother's Day;
(b) On the child’s birthday, if it falls on a Wednesday when he is staying over-night with the father, he shall be with the mother from 6.00pm to 8.00pm; and
(c) On the child’s birthday, if it falls during the father’s week-end, for four hours as agreed.
7.That the mother shall by herself, her servants or agents be restrained from bringing the child into contact or allowing the child to be brought into contact with Ms P.
8.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
9.That the appointment of the Independent Children's Lawyer shall be discharged.
10.That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.
I certify that the preceding one hundred and fifty-nine (159) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau
Associate:
Date: 30 January 2008
Key Legal Topics
Areas of Law
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Family Law
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