SUSSKIND & DEAN
[2014] FamCA 500
•11 July 2014
FAMILY COURT OF AUSTRALIA
| SUSSKIND & DEAN | [2014] FamCA 500 |
| FAMILY LAW – CHILDREN – With whom a child lives – Abuse and family violence – Best interests of the child – Where both parties found to be violent in the right circumstances – Where competing proposals by parties – Where father having supervised time with the children at the time of trial – Whether father poses an unacceptable risk of sexual harm to the children – Where children have made disclosures of sexual abuse – Where no risk of harm substantiated by the Department and Queensland Police but rather only a substantiated risk of emotional harm was found by the Department against both parents for the exposure of the children to parental conflict – Where court assessed the level of risk – Where court not persuaded on the balance of probabilities that the father has sexually abused the children – Where the court found the father presents some risk of sexual harm to the children although such risk falls short of an unacceptable risk – Whether mother poses an unacceptable risk of emotional harm to the children – Where mother has an unshakable conviction that the father has sexually abused the children – Where mother has subjected children to several investigations regarding the sexual abuse allegations by the Department and Police – Where concern arising from the mother’s possible continued use of heroin and other drugs – Where mother found to be a risk of emotional harm to the children although not an unacceptable risk – Where mother found to present as some slight risk in relation to the return to drug use although such risk not found to be an unacceptable one – Where mother has been the children’s primary carer for most of the children’s lives – Where father’s capacity for primary residence is untested and children have not been in his care for protracted periods – Where court found it in the best interests of the children for them to remain in the primary care of the mother. FAMILY LAW – CHILDREN – With whom a child spends time – Where mother proposed time spent with the father should be supervised on the basis that he presents as an unacceptable risk of sexual harm to the children – Where court did not find the father to be an unacceptable risk of sexual abuse to the children and therefore there was no basis for requiring the father’s time be supervised – Where ICL submitted orders be made on an interim basis in order to gauge mother’s response to the father having unsupervised time with the children – Where court made orders on an interim basis to operate for 6 months with the father to have unsupervised time with the children. FAMILY LAW – CHILDREN – Presumption of equal shared parental responsibility – Where a long history of domestic violence between the parties – Where presumption rebutted – Where court determined parental responsibility to rest with the resident parent. FAMILY LAW – CHILDREN – Practice and procedure – Where standard of care in civil litigation is proof on the balance of probabilities – Where appropriate consideration of the gravity of the matter is required in determining whether or not the court is satisfied of its existence on the balance of probabilities – Where court noted requirement to give real and substantial consideration to the facts of the case. |
| Evidence Act (Cth) s140 Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 |
| APPLICANT: | Mr Susskind |
| RESPONDENT: | Ms Dean |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Grant |
| FILE NUMBER: | BRC | 1299 | of | 2011 |
| DATE DELIVERED: | 11 July 2014 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 6, 7, 8, 9, 10, 13 and 14 May 2013 and 27 June 2014 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Rosen |
| SOLICITORS FOR THE APPLICANT: | Rosen Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr O’Meara (6, 8 & 9 May only) |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Mr Westbrook |
| SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER | Grant & Associates |
Orders
IT IS ORDERED THAT UNTIL FURTHER ORDER:
The mother have sole parental responsibility for the children B born … 2003 and K born … 2008.
The children live with the mother.
Each party shall have the responsibility for the day-to-day care, welfare and development of the children whilst they are in their care.
The children spend time with the father
(a)each alternate weekend from immediately after school on Friday afternoon until 5:00pm on Sunday afternoon commencing on Friday 25 July 2014; and
(b)from immediately after school on Friday 19 September 2014 until 5:00pm on Sunday 28 September 2014.
Changeovers of the children between the mother and the father shall occur by the father (or his representative) collecting the children from their school, and returning them to the maternal grandmother’s residence.
The children shall communicate with the father by telephone each Tuesday and Thursday between 6:00pm and 7:00pm with the mother to initiate the call.
These Orders shall authorise any educational institution to which the children attends to provide to the Mother / Father, at the Mother’s / Father’s expense, all reasonable requests for information, including but not limited to, school reports, newsletters, and important school notices.
The mother shall notify the Father in writing within seven days the name and contact details of any health professional who attends upon the children.
These Orders shall authorise any health professional who attends to the children to provide to the Mother / Father, at the Mother’s / Father’s expense, all reasonable requests for information by the Mother / Father as to the children.
Each parent inform the other parent as soon as reasonably practical, of any serious illness or hospitalisation of the children.
Each party shall keep the other informed as to their current residential address, landline telephone number, mobile telephone number, email address (if any), and facsimile transmission number (if any). They shall notify any change in the same within forty-eight (48) hours of the change.
Neither party shall denigrate the other, nor permit any other person to do so, I the presence or hearing of the child / children.
Neither party shall discuss these proceedings with the children.
The mother be restrained from allowing or permitting the children to be interviewed, counselled or have any involvement with any counsellor, therapist or the like without the written consent of the Independent Children's Lawyer, or failing such consent, Order of the Court first obtained.
The Independent Children's Lawyer have liberty to re-list the matter for further consideration of the interim parenting orders as he may see fit, and in that event, where possible, the matter is to be listed before the Honourable Justice Tree.
All parties have liberty to re-list the matter for directions to ready the matter for further hearing.
The matter be listed for a case management conference before the Honourable Justice Tree at 2:15pm on Thursday 9 October 2014, with all parties having liberty to appear by telephone, for the purposes of readying the matter for further hearing.
The matter be listed for the resumption of the trial before the Honourable Justice Tree in Brisbane in the week commencing 24 November 2014, on a date and time to be advised to the parties by the Registry.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Susskind & Dean has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC1299 of 2011
| Mr Susskind |
Applicant
And
| Ms Dean |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
These are the reasons for judgment arising from the trial of competing parenting applications in relation to the parties’ two children, B (born in 2003 and presently 11 years of age) and K (born in 2008, and presently 5 years of age). Each of the parties seeks orders that they have sole parental responsibility for the children, who would reside with them and spend only supervised time with the other parent. Although the primary position of each of the parties was that there should be final orders, in an alternative position articulated during the course of addresses, the father sought that there be a six month period of interim orders in which the children would live with him and spend supervised time with the mother, at the conclusion of which the court would then re-assess the asserted risk which, on that scenario, the court would have been satisfied the mother poses to the children.
The Independent Children's Lawyer did not press for any particular set of orders: he identified that the factual findings would to a large extent dictate the appropriate orders.
THE ISSUES
By the time of the trial before me, the issues had largely resolved to firstly, whether the father presented an unacceptable risk of sexual harm to the children. If he did not present such a risk of harm, then the second issue was whether the mother’s unshakable conviction that he had sexually abused both girls meant that she was an unacceptable risk of emotional harm to them, such that her time with them needed to be, either temporarily or permanently, supervised. There was a further area of concern in relation to the mother, and that was whether she was at risk of relapsing into using heroin but no party suggested that consideration, if established, could outweigh the consequences of a finding that the father presented an unacceptable risk of sexual harm to the children.
It is appropriate to record that although the trial initially concluded before me in May 2013, in June 2014 the parties sought, and were given, leave to re-open their cases to tender some updated assessments of B, and also to adduce evidence as to asserted changes in availability of Contact Centre supervision of the father’s time with the children.
BACKGROUND FACTS
The father was born in 1979 and is presently 35 years of age. The mother was born in 1977, and is presently 37 years of age. Although the parties knew each other from school when they were children, they were reintroduced by the mother’s brother in 2002. The father had then only recently been released from prison after serving two and a half years of a four year sentence for stealing and drug related offences. He had been addicted to heroin since his mid-teens. The mother’s brother was also a heroin addict, and a criminal associate of the father.
By 2002, the mother already had the care of two children to her previous partner, a Mr I, the children being L and M.
The parties’ relationship was thereafter characterised by domestic violence, serious drug abuse, criminal activity and regular intervention of the Department of Communities Child Safety and Disability Services (“DOCS”). It was also punctuated by periods of separation and, at least on the mother’s part, homelessness from time to time.
Not long after they were reintroduced in 2002, the mother fell pregnant with B, who was born in 2003. By the time of her birth it appears as though the parties had already separated, although they later reconciled, seemingly when B was about nine months old.
B was born with significant feeding problems and health issues and was later diagnosed with Turner Syndrome. That is a chromosomal disorder causing significant developmental impairment, and other affects which I shall discuss later in the reasons.
The mother commenced using heroin herself in late 2004 or early 2005, but asserts that was only for about three months, and concluded a naltrexone implant was inserted in her body.
In late 2005 the parties separated again, and shortly thereafter DOCS took B into care. She remained in care until 2008 when she was returned to the mother.
Shortly before the Department took B into care, the mother voluntarily transferred the care of L and M to their father.
It appears as though some short period of time after all three children left her care, the mother had the naltrexone implant cut out and commenced using heroin again. To obtain funds to feed her addiction, she resorted to crime. Ultimately she was charged and convicted with armed robbery, and sentenced to three years jail, of which she served six months, being released in February 2007.
At this time, the father remained enmeshed in the drug and criminal culture, and he spent a month in prison in August 2005, and in March 2006 was sentenced to two years of probation.
The parties then reconciled in late 2007, and, shortly thereafter, the mother fell pregnant with K. Some months after their reconciliation, B was returned to their care, however the parties had separated again prior to K being born in 2008.
Although the parties did not reconcile, for the first two weeks of K’s life the father spent time with her, however thereafter he did not see her for two years. In that time he asserts that he attempted to obtain assistance to help him see the children, but it did not translate into him actually spending time with them.
Then in mid-2010 the parties reconciled again. At the time, the mother was living in what has been described as “poor environment with lots of drug addicts in the neighbourhood and needles lying around on the footpath”[1] and hence the parties agreed to move to Suburb N on the Brisbane bayside, which is some distance from where they had previously lived.
[1]First Family Report para 39.
Things did not work out, although the reasons for that are not agreed. The father says that things went well for a while, but then the mother started drinking heavily, which reached its crescendo at a party designed to celebrate the father’s birthday in 2011. Even the mother concedes that this episode concluded with the mother wielding a kitchen knife and slashing the father’s tyres on his car, but she denies the father’s allegation that she also attempted to attack the father and the paternal grandmother with the knife.
In consequence of the mother’s conduct, the father and the paternal grandmother took the children into their care. For the next few weeks they remained in their care without the mother’s consent, and without them spending any time with the mother or communicating with her
On 21 February 2011 the father commenced these proceedings. At an early Court event, the parties negotiated and agreed upon the children returning to the mother’s care, and spending unsupervised weekend and mid-week time with the father.
Shortly after the interviews for the first Family Report in June 2011, B began making disclosures, seemingly of sexual abuse of both children by the father. I will consider those allegations later in these reasons. In consequence, the mother withheld the children from spending further time with the father. Subsequently, consent orders were entered into varying the earlier orders, and providing for the father’s time with the children to be reduced to one day per week and supervised by the paternal grandmother. The last of those supervised visits took place in early October 2011, and were suspended again by the mother on the grounds that there were ongoing sexual abuse allegations being made by the children about events occurring during their spending supervised time with the father. I will detail those in due course.
The father denies any wrong doing whatsoever on his part.
The mother said she commenced seeking what might broadly be described as therapeutic assistance for the children in consequence of their disclosures. As will be seen in due course, in fact they had been receiving such counselling prior to any disclosures being made. In any event, the Independent Children's Lawyer objected to that counselling continuing, preferring for the children to attend a Mr E.
On 20 April 2012, Forrest J restrained the mother from permitting the children to be interviewed, counselled or have involvement with a counsellor, therapist or the like, without the Independent Children's Lawyer’s written consent or order of the court. He also ordered that the children spend time with the father supervised by O Contact Centre on weekends. Those were the orders which prevailed as at the time of trial before me.
As at the time of the trial before me, the father was residing with the paternal grandmother at Suburb P, a bayside suburb of Brisbane. He has been in stable employment with Company Q since 2008 and as at the time of trial was second in charge of an area of its warehouse called “[Section R]” which appears to be that part of the building which deals with picking and packing product, and loading and unloading trucks.
As at the time of trial, L and M had returned to live with the mother and the two children the subject of these proceedings. The mother resides either at Suburb S, or nearby. Suburb S is a suburb on the south side of Brisbane.
B’s Turner’s Syndrome has caused her to have short stature, for which she has been prescribed growth hormones. She also has an intellectual impairment and has had problems with her vision and hearing. She wears glasses and a hearing aid. Her cognitive skills are significantly delayed and her social skills and interests are not as developed as her peers. It appears as though this causes her difficulty in forming reciprocal relationships with children of her age. It is said that she sometimes gets angry and jealous because she does not have many or perhaps any friends at school, but nonetheless she is reported as being mostly happy.[2]
RELEVANT LEGAL PRINCIPLES
[2]This information is derived from a T Hospital psychology report of an assessment made 14 February 2014 which is annexure A to the affidavit of the mother filed 25 June 2014.
The statutory regime
A convenient starting point is section 61DA of the Family Law Act, which by sub-section (1), provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to section 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context is convenient to also advert to section 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC.
The standard of satisfaction required
S 140 provides as follows:
140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters 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;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.
In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
Plainly, sexual assault of a child is a grave criminal offence. However conduct intended to, or with a risk of, either emotionally or psychologically harming a child, or destroying or impairing a relationship between a child and a parent, is not, of itself and without more, necessarily criminal. Nonetheless an allegation of that kind is potentially a grave one, although whether it is so or not will depend upon the facts of individual cases. It is probably idle to seek to arrange conduct in some hierarchy of gravity; rather what s 140(2)(c) requires is that appropriate consideration is given to the gravity of the matter in question in determining whether or not the Court is satisfied of its existence on the balance of probabilities. In my view, the allegation made by the father that the mother presents a risk of emotional harm to the children is of some gravity.
Further, the consequences attaching to a finding of the kind sought by the father could potentially be grave. As is demonstrated by this case itself, based upon such a fact being established, a father could seek to use it to found an argument that the mother’s time with the child should either be supervised for some period of time, or even permanently. Whilst on one view such a consequence may not be as grave as the consequences that flow from the proof of criminal sexual abuse, it is nonetheless clear that the consequence of a finding that the mother presents as an unacceptable risk could be significant and have a grave aspect to it.
Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[3]
[3] See K v R (1997) 22 FAMLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].
The notion of unacceptable risk
It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
In Harridge & Harridge [2010] FamCA 445 Murphy J, having recited the above passage, proceeded to adopt the following list of inquiries in relation to risk assessment:[4]
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
[4] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
I gratefully also adopt that passage as helpful in cases such as these in analysing the asserted risk.
DOES THE SECTION 61DA (1) PRESUMPTIION APPLY, OR IS IT REBUTTED?
On any view there has been a long history of domestic violence between these parties during the course of their relationship. It matters not for the purposes of s 61DA who initiated it; both parties agree that there was extensive violence and both were active protagonists in it.
The s 61DA presumption does not apply.
CONSIDERATION OF S 60CC FACTORS.
S 60CC(1)(a): The benefit to the child of having a meaningful relationship with both of the child's parents
There seems little room for doubt, in the event that it is determined they do not present an unacceptable risk of harm to the children, that the children would benefit from having a meaningful relationship with their parents. The mother has been the primary carer of both children for most of their lives (leaving aside the time when B was in care, and the time when, immediately after the last separation, the father took both children into his care) and the children clearly have a strong attachment with her.
On the other hand it is plain that the children enjoy spending time with their father[5] and other members of the paternal family, and he has much to offer them, particularly given his history of stable and responsible employment in recent years.
[5]Although in 2011, both expressed opposition to seeing him, that appears to have abated.
Ms F, the Family Report writer, gave oral evidence as to the likely impact upon the children if they had no meaningful relationship with their father. She predicted that the full impact would be felt later in their lives, and likely include an inability to form lasting relationships, an inability to trust, and an inability to feel good about oneself. She explained that if the image which the children have of their father is that he is demonic, then they are likely to identify that a part of them is demonic as well. Such responses are likely to lead to socially marginal behaviour, for example criminality. Plainly that evidence would support there being real benefit in the children having a meaningful relationship with their father.
S 60CC(1)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Overview
This was the central matter of dispute between the parties in the trial before me. The mother asserts that the father presents an unacceptable of risk of sexual harm to the children if they are in his unsupervised care. On the other hand the father asserts that the mother’s conduct, consequent upon her intractable belief that he has sexually abused the children, means that (assuming that I find that he is not an unacceptable risk of harm to them), they are likely to grow up with a false perception that he is a risk to them, which would comprise emotional harm. He says that risk is unacceptable, in consequence of which the children should live with him and spend, at least initially, only supervised time with the mother.
There were also concerns arising from the mother’s possible continued use of heroin or other such drugs.
Is the father an unacceptable risk?
The children’s disclosures
On 14 June 2011, the interviews for the first Family Report were undertaken in Brisbane. In the course of those interviews, Ms F arranged a meeting between the mother and the paternal grandmother. The consequence according to Ms F was that “[the mother] lost personal control virtually from the outset. She talked over the top of everyone. She screamed and swore at [the paternal grandmother] at the top of her voice when she felt she was under attack or being criticised. She then included me in her angry denunciation, seemingly having little idea of how or when to stop.”
The Family Report is dated 19 June 2011, however the affidavit of Ms F pursuant to which the Family Report was introduced into evidence was not sworn until 29 June 2011, and not filed until 28 July. Therefore interestingly the first disclosure, which appears to have occurred on 22 June 2011, was in the period between the interviews for the Family Report, and its release to the parties.
On 22 June 2011, after the girls were returned to the mother’s care after a mid-week visit with the father, the mother says in her trial affidavit that she noticed something on B’s school clothing, and asked her what it was, to which B said “wee”. She says she thought nothing more of it at the time, until later that evening when she and the girls set out to walk to the local doctor’s surgery. The purpose of the visit was to get a specialists referral for her son L. At para 390 of that affidavit she described what then ensued as follows:
We walked a few houses down from mum’s and opposite [X] Pizza at the [U Street] shops near [Location V]. [B] was about arm’s length away from me and we were walking together. [B] began referring to “Daddy and a man and a car” and saying words to the effect of “Daddy was shaking his sausage” with actions using her hands she was saying “Daddy was shaking his sausage”, she was showing us with her hands in front of her on the side and fingers pointing out straight in up and down motion. Both of her hands were moving in an up and down motion. What she was doing looked as if she imitating a man masturbating.
In the following paragraphs, she recounted a further conversation with B in which, according to B, the event in question happened “tonight” and “at [X]” being the X Pizza Shop that the mother and the four children were then just passing. B then said words to the effect “daddy was licking the man’s sausage and drinking his wee.” She repeated this, and demonstrated it, but then gagged and said “Daddy vomited”. The mother then recalls B saying words to the effect of “Daddy got [K] to lick daddy’s sausage and drink wee.” She then said “[K] swallowed some of his hair” at the same time as rubbing the lower part of her body.
The mother then said that upon reaching the doctor’s surgery, B proceeded to tell two female nurses much the same disclosures as she had told the mother shortly beforehand. The mother then rang the police and reported to them what B had disclosed. Police attended. The police report of that attendance was in evidence.[6] That records that the mother stated that the children “have disclosed that at some stage … whilst on unsupervised contact, the [children] have been forced to indecently touch [the father].” It will be immediately appreciated that that is not entirely consistent with what the mother says was disclosed to her, which, to the extent that it involved either child, only was to the effect that K had touched her father’s “sausage.”
[6]2 TB 39.
Upon getting home, the mother says she went to change K’s nappy but realised she had no underwear or pull-ups on. She asserts this is how she had been returned to her from the father that evening. However that does not appear to be what she told either the police or DOCS officers subsequently. Rather on 29 June 2011 the DOCS records recite “when the family returned home from being out [M] took [K] to the toilet and [K] came back with her pants down…”[7]
[7]1 TB 197. See also the different version again referred to at para 72 of these Reasons.
The following day the mother took B to school and explained to her teacher, Ms W, that B may be tired and told her what B had said the previous night. She says the reason she told the teacher was “I didn’t want [B] saying similar things to the other children at school.”
Upon attending the school that afternoon, the mother had a further conversation with Ms W, who informed her that B had made disclosures to her and another teacher, and that reports were being prepared.
An affidavit of Ms W was amongst the material in evidence before me, and she attended to give oral evidence under cross-examination. She was an impressive witness. She has had a considerable association with the family, having taught not only B, but also M. She is plainly independent, and a caring teacher.
In her affidavit she described her recollection of the morning when B was dropped to school by the mother, and recalls the mother having said to her words to the effect that B had been upset the previous night, and was still upset. At lunchtime she checked to see if B was OK, as she had observed that for most of the morning in her class B had been upset, teary and grizzly. During the course of her conversation with B, her evidence is that B “almost straight away” said words to her to the effect “I don’t want to go to daddy’s anymore. [K] … had to lick daddy’s sausage. She didn’t like the taste because it had wee on it. Daddy makes [K] touch his sausage.”
She also gave evidence as to B’s ability to memorise and recall things. Her evidence was that B had difficulty in recalling different verses of songs other than a chorus, and on occasions could not remember words in a book that she had read a number of times. She also said that B had difficulty with equating time, and particularly would describe the timing of an event inaccurately and unreliably.
Mr Westbrook, who appeared as counsel for the Independent Children's Lawyer at the trial of this matter, correctly submitted that given Ms W’s independence, there can be no doubting that the disclosure was made, and that it had not been the product of recent prompting or coaching by the mother.
A large number of records of the DOCS were tendered into evidence. They record the various notifications made from time to time, including those of 22 and 23 June 2011. There is a little more detail contained in some of those records than in the several witnesses’ evidence based on recollection. For instance, in relation to what appears to the mandatory notification by Ms W, the following note is recorded.[8]:
Intake Officer asked if [B] appeared upset when she was making disclosure, notifier advised, “she seem (sic) upset but she is always upset and she has always being (sic) making allegations about dad, such as not caring for her, etc.”
[8]1 TB 173.
Also of interest is the note pertaining to 23 June 2011[9] that:
Notifier reported that children received counselling through the Child Counsellor at [D Church Youth Services] and this was described to be expressive therapy.
[9]1 TB 174.
Likewise of interest is the note[10] that “mother seeks teacher out all the time and provides negative information about father” and “mother tries to engage school and drop things about father.”
[10]1 TB 181.
Whilst B was at school on 23 June, K was at home with the mother. The mother says that during that day, K said to her words to the effect “daddy kisses [Ms Z’s] nuts.” (The evidence established that Ms Z was the father’s partner during one of the periods he was separated from the mother, but that he had not seen her for about 6 years at the time of trial). After she had picked up B from school, she recalls that on the way home, amongst other conversation, B said to her words to the effect “[K] is drinking daddy’s beer and smoking cigarettes, daddy gives them to her.” She also said “daddy has sex with me and [K] in the bed” and later identified that it was “in the motel” and “when we went camping in the motel.” She also said “[Ms Z] and daddy was nudie rudie” and “daddy touched me on the privates and kissed my lips and [Ms Z] did too.” She also says that B said words to the effect “daddy was licking [Ms Z’s] nuts at the motel with [K] in the bed.”
On Friday 24 June B undertook her first s 93A interview at the Suburb AA Child Protection Investigation Unit. She was interviewed by two male police officers. Interestingly, in a later conversation with a DOCS officer on 27 June, the mother is recorded as having said in relation to B’s interview on 24 June that “[B] only wanted to speak to female officers. Mother told [B] she’d get her McDonalds and the police officer said don’t you dare say that to her.”[11] The mother says that B was interviewed by herself, without anyone else being present, and that she was waiting outside the room and “I could hear [B] crying throughout the interview”.[12]
[11]1 TB 196
[12]Mother’s affidavit filed 29 April 2013 para 423.
The video recording of the s 93A was in evidence. Although the police asserted that no disclosures were made, the mother in her affidavit identified that on the recording she could hear some disclosures, including B responding to a question to the effect “did anyone tell you what to say” by answering in the following terms “I asked my mum, I asked my mum, [K] just drank the wee, poo and hair, that’s all I said to my mum, [K], is that little.” Similarly the mother says she can hear B later mentioning that K “was drinking the wee and the poo” and a little later in the interview the statement “[K] can’t all the time drink the wee because it was yucky.”
The relevant s 93A recordings were played to the mother in the course of her cross-examination. In those recordings, B did not appear to be or sound upset or distressed. She was cross-examined by the difference between her evidence on the one hand, and the observations which could be made of the s 93A interview on the other. Her response was to the effect that she accepted that there was no evidence of B being upset in the video, but that nonetheless B was crying when she was given back to her, and she could hear her crying through the door. She further said that the police told her that B had been too fragile to interview. That said, she accepted that there was no sign in the interview that B was too fragile, and appeared “OK”. She then said that she believed B preferred speaking with women, and particularly would disclose more to women.
On Saturday 25 June 2011 the mother says she saw K lunge towards the family dog in an effort to lick its penis. The mother said that K’s mouth was actually on the dog’s penis. On the same day K started nibbling at the mother’s neck with her lips and mouth which was playful but not aggressive and when asked to stop, K said “Daddy kisses me like that.”
The following day, the mother said that whilst K was in the bath she “saw [K] grab a naked Barbie doll and pull the legs apart and lick the doll between the legs.”
It will be recalled that, by the time of the first disclosure by B, the children had been seeing a D Church Youth Services counsellor, a Ms BB, for an unspecified period of time and for a purpose which is not easily discerned. In a statement which formed, in effect, her evidence-in-chief,[13] Ms BB said as follows:
On 27 June 2011 I witnessed [the mother] say to [B] and [K] “you have to hurry up, we have to go and meet daddy, you are going to daddy’s this afternoon.”
[K] screamed and protested against going to dad’s in a highly escalated manner using vocal tone and clenched fists and kicking feet. She said “no I won’t go to daddy’s no. I won’t go to daddy’s. I don’t want to go to daddy’s.”
She began crying and when she brushed the hair out of her face with the back of her hand I noted her pupils appeared dilated and she was sweating profusely around the hairline and on the back of her hands. She violently protested going to dad’s and said “I an (sic) very mad. I don’t want to go to daddy, not daddy’s don’t make me go.” Her vocal tone was loud and clear. Her high pitch became even higher and her vocal pace more frenzied as she spoke. Her body movements increased in speed with the vocal pace.
[The mother] made it clear she had to go by saying “I have to take you [K]. Its not up to me.” She was referring to a court order for visitation rights.
[K] then tried to run away. [The mother] grabbed her to put her in the stroller and [K] fell as a dead weight against [the mother] efforts then began screaming a long shrill tone with fevered pitch and large air capacity.
[The mother] looked at me with tears in her eyes and said “I go through this every time and I don’t like even telling them when they have to go their father’s.” As [Grace had quietened in the stroller I noticed [B’s] quiet voice say ‘I don’t want to go to daddy’s.” She was standing her mother so I could not see her.”
[13]Exhibit 6.
In her cross-examination, Ms BB explained that she has a Bachelor of Education, Masters in Counselling, and has done many counselling courses, particularly in relation to sexual abuse. When asked what type of counselling she engages in, she described it as “play therapy”. She said that play therapy helps a child disclose abuse, but “only if they are ready and want to”. Whilst she accepted that children can express loyalty by saying that they do not want to go with a particular parent, she said that the pupil dilation which she observed is not able to be feigned by a child.
This is an appropriate place to record that the mother is in the habit, if she does not obtain what she thinks is appropriate assistance from one particular officer of an organisation, or indeed an organisation generally, that she will approach either another officer within the organisation, or another organisation altogether. That is what she did here. She was not happy with the Suburb AA Police because “they weren’t helpful”.[14] Further, she was hopeful that the police might forensically test the shirt that B had been wearing when she returned from her time with the father on the Wednesday 22 June, with a view to, presumably, detecting semen.[15]
[14]1 TB 196.
[15]The test, when ultimately done, indicated no semen was present: see 1TB 352.
Accordingly, rather than return to the Suburb AA Police Station, on 27 June the mother approached the Suburb CC Police Station. At 1 TB 196 the following notes appear in relation to the mother’s contact with the Suburb CC CSSC:
…
·QPS want mother to confront father. [Male given name] at [Suburb AA]. QPS were rude.
·Mother unsure which [X Pizza Shop] it happened at – [B] said father has house near mother’s.
·[Ms Z] (father’s partner?) SChn brought up her name. Apparently [Ms Z] was kissing father’s nuts and they are always naked.
·Police spoke to SCN – [B] was trying to tell female officer and officer kept changing it.
·[B] told Dr [DD].
·[B] pooed and wet herself after speaking the QPS.
·[B] only wanted to speak to female officer. Mother told SC she would get her McDonalds and police officer said don’t you dare say that to her.
…
On 28 June 2011, the solicitors who were then acting for mother wrote to the father and the Independent Children's Lawyer setting out the mother’s allegations relating to the disclosures at that stage.[16] It contains a number of matters different to that which the mother has told other sources, including this court. Particularly it is said that:
·It was at the doctor’s surgery that the mother discovered that K was not wearing any underpants;
·It was when she arrived home after the doctor’s surgery that she noticed “that [B’s] skirt had a white substance all over it.”
[16]The letter is annexure 32 to the mother’s trial affidavit.
Two other inconsistencies, namely the night in question where B soiled herself and wet the bed, and the purported use by B of the word “penis” rather than “sausage” were addressed in the mother’s trial affidavit; the other inconsistencies were not explained.
On 29 June 2011, Child Safety Officers interviewed with the mother at the Suburb CC CSSC. Amongst the notes of that interview[17] are as follows:
[17]1 TB 197.
…
·When the family returned home from being out [on the Wednesday] [M] took [K] to the toilet and [K] came back with her pants down…
·[B] disclosed “[Ms Z] kisses daddy’s nuts. [Ms Z] is a lesbian”.
·Mother thinks that the SC are witnessing “orgies” between [Ms Z] and [Ms EE] ([Ms EE] is someone the mother is aware of due to her prior incarceration). “[Ms EE] is black” and [B] has disclosed that there was a “black girl” at the father’s house.
·[B] disclosed “[Ms Z] and daddy have sex in the shower and they leave the door open.” [B] also stated “dad licked the man’s face”.
·…
·[B] has disclosed to the mother that the father is still putting water in the cupboard (alleging marijuana use).
·…
·Mother responded “[The father’s] not a straight man” and stated they slept in separated beds.
·…
·Mother stated father used to kiss [B] inappropriately (with tongue) and mother would “go off”. This occurred from when [B] was a baby.
·Father would get [K] to wipe his bottom and then pushes her head down (mother motioned towards genital/bottom area) and the father would state “she likes it”.
·Mother stated that she has observed [K] “attack” adult males’ genitals.
·…
·Father has told mother he likes men and mother has told the father to stop his behaviours in the past. Father stopped kissing the children in front of the mother.
·Christmas 2010 the mother told the father not to kiss [B].
·In January 2011 the mother woke in the middle of the night and found the father to be naked in [B’s] bed he had been drinking after work and the mother called him a “sicko”. He then left [B’s] room and went into his own bed.
·[Ms FF] ([B’s] foster mother) has observed [B] to be acting out and demonstrating sexualised behaviours.
·In February 2011 the mother got up from bed to go and turn the TV off and the father was on the couch watching “some sort of crap on Foxtel” (which mother assumed to be pornography). [B] was on the couch and the mother motioned with their hands and actioned the father was doing.
·CSO [Ms GG] asked if the mother was indicating the father was masturbating and the mother stated “yes”. The mother thought she may have dreamt it as the father told her she was talking in her sleep that night, however the mother believes what she saw was real.
·…
·Mother stated she can’t recall if she has put previous sexual harm concerns in her current Family Court affidavit.
·…
·Mother denied any drug or alcohol use.
·…
·Mother is receiving counselling through [Y] Church.
·…
It will be appreciated that these allegations are far broader, and cover a much greater period of time, than what the mother reported to police the week previously. Moreover, this appears to be the first time that the mother had raised many of the allegations which she made to police, which if true, would have been highly relevant matters to have included in her material then before the Court.
Also on 29 June 2011, a s 93A interview with B was conducted at the Suburb CC CSSC. B did not spontaneously disclose anything. The Departmental records note that one of the child safety officers prompted B about concerns that occurred at X Pizza Shop in relation to a sausage, to which B closed her eyes and said “oh I told mum that. Dad has another girl at his home.”
She then is reported as having told them that she wanted to live with her mother all the time and liked her mother better than her father, seemingly because “my dad gets angry at us.”
An attempt to conduct a 93A interview with K did not succeed, and the interview was terminated after a short period of time.
On 6 July 2011 a Child Safety Officer spoke with the mother on the telephone. In the relevant record in the Department’s file of that conversation[18] there is recorded:
[18]1 TB 199.
…
·Father’s “gayness” is out in the open and that he is a paedophile.
·…
·Mother scared father will set house on fire.
·…
·Mother scared about becoming one of the women on the news.
·…
·Mother stated she is willing to hide SCn in foster care to keep them safe
…
Again it will be appreciated that these matters are largely new, and have a highly dramatic character to them. They are consistent with the mother becoming increasingly desperate to have Departmental intervention, and attempting to encourage that intervention by not only repeating, but increasing the seriousness of, the allegations that she was making against the father.
There was a further telephone call between the Child Safety Officer and the mother on 22 July 2011.[19] In the note of that conversation (which appears to have occurred shortly after a court event):
[19]Ibid.
…
·Mother wants SCn put in foster care as she feels she can’t protect them due to court ordering contact with the father and SCn.
·…
·SC still discloses information to mother. Mother doubted SC at first.
·…
·Mother stated she doesn’t say anything to children, she is just doing what she can to her children. Mother stated she doesn’t know how she can emotionally harming the children.
·…
·Mother became upset when SCO [Ms GG] advised that substantiating concerns of both parents of emotional harm.
·…
·Mother stated that the father has told her things he wants to do with males that [K] has disclosed to the mother.
…
On 26 July Child Safety Officers interviewed the father and the paternal grandmother. In the course of that interview[20] the father denied any misconduct, denied that he had ever heard the children use the word “sausage” to describe a penis, or indeed any language of a sexual nature, and asserted that the mother has continuously made false allegations. Further, he indicated that B had told him the reason why she had been crying, was due to the mother telling B that “she would be crying up until the children return to her care after contact with the father as she would miss them.”
[20]Notes of which are at 1 TB 201-202.
At trial, the father continued to deny any sexual misconduct of any type towards the children. He was extensively cross-examined by reference to, amongst other things, an occasion when he did take the children on an overnight stay at a caravan park at Town HH. He conceded that he slept in the main bed with one of the children, and perhaps both, although he thought that one of the children slept in the top bunk. He conceded that he could have slept in the top bunk himself but did not. Further, his evidence was that whilst B did spend some time with Ms Z on occasions when he had her in his care many years ago, that was very limited and he had certainly never exposed B to any sexual behaviour between himself and Ms Z. Further, he said that he had not had any contact with Ms Z for over six years, and did not even have her telephone number.
Next, on 29 July 2011, Child Safety Officers spoke with the mother at Suburb CC CSSC. The mother said she was attending because there were new disclosures from the children. Apparently when the children were in the bath, B had become hysterical and said “please don’t make me go to [the father’s]. The mother nonetheless took them to the changeover location, where B was angry with the mother and the maternal grandmother. In a conversation (which it is difficult to put in context) seemingly after she returned from that contact, B disclosed that on the weekend just past, the father took her into her cousin JJ’s room and B and JJ had to “lick each other’s private parts while dad was playing with his sausage.” B stated this occurred during the evening. Further, the mother told police that the children were playing with their private parts in the bath. The mother further said that she did not feel that the event involving JJ had occurred in the weekend just gone, but may have happened previously. Again the mother was told that DOCS were currently substantiating emotional harm, with both parents named as the persons responsible, to which the mother became defensive and stated that she wanted peace.
It will be immediately appreciated that the new allegations are yet again far more dramatic than had previously been made, in that now the mother was asserting that the father was not himself directly sexually abusing the children, but rather requiring B to engage in sexual activity with a cousin for his sexual gratification.
In the mother’s trial affidavit, she referred to a disclosure by B said to have occurred in August 2011, which was preceded by B saying to her words to the effect “I’ve got something to tell you. You will get angry at me mum, you will be mad.” She has then said words to the effect “I was in [JJ’s] room. Daddy put me on [JJ’s] bed and [JJ] was kissing (or licking) my private parts.” She then went on to detail that the father was “behind [JJ] playing with his sausage” at the time and that she “had to kiss [JJ’s] privates.” The mother then says that she tried to calm the girl by telling her that “we’ve tried to help you and your sister but people aren’t listening. There’s nothing we can do to stop this from happening. You need to be brave and tell the people who can help you like the police. You just tell them the truth. You just tell them what happened and what you remember. If daddy is doing this, you need to tell your nanna [Ms KK].”
It would appear as though this is in fact the alleged disclosure that is said to have occurred in late July 2011, and which prompted her attendance on police on 29 July.
There was then an interview conducted by police with B on 29 July.[21] In that interview, B said that she did not want to go to her father’s, and had her hands over her eyes while saying this, and described his house as “scary, very scary”. She said that on the Sunday just gone, her cousin JJ and others were at the father’s home, but “[JJ] is not [B’s] friend or cousin anymore as she is mean.” B could not recall why she was saying JJ was mean. B said she didn’t like the paternal grandmother because she was “mean, fat, had glasses and curly hair.” Importantly, B stated “the father hasn’t done anything naughty.” When specifically asked if anyone had touched her in a way she didn’t like, B put her hands over her eyes and answered “I don’t know”. She further said that she has a “secret to mum” and the mother “doesn’t want her to tell stuff.” The Child Safety Officer advised B that she had heard some information about “daddy’s sausage” to which B covered her mouth and looked shocked. Then B began saying “[JJ] licked me” however was unable to advise when this occurred. She was then asked about the father and Ms Z, to which she said “I didn’t see [Ms Z]. I opened the door.”
[21]Notes of that appear at 1 TB 194-5.
There is then a record that B told the officers that the mother had told her to “please keep a secret to me” and B “promises every day and afternoon.” It is then recorded that B stated she and the mother made a “pinkie promise” and the mother said if she keeps the secret she can go to “Disney on Ice” which they went to today. B stated she “needs different ladies” (to talk to) however she couldn’t remember what she needed to talk about. It will be immediately appreciated that this aspect of the evidence is highly worrying. It is consistent with the mother’s attempting to exercise control over what B discloses to others.
It appears as though the interview then proceeded with some specific questions being asked by another Child Safety Officer. In the course of answering those questions, B denied having fun at her father’s house, but denied being scared of her father. She was asked “did mum tell you to keep a secret” to which she answered “yes”, and that she “can’t disclose the secret as she will get into trouble.” She denied that her father had ever hurt her, and denied that she had ever gone into JJ’s room with her father. She denied that anyone had touched her where they shouldn’t, and although initially denying that she had ever seen daddy’s “sausage” she then said “that this has happened”. She denied ever touching the sausage but then went on to say “I wasn’t there, I was at school.”
There is then recorded “when asked more about the “sausage” B stated that the father drew one and laughed and her father was being silly. That night she told the mother about the sausage. She then denied that K drank wee, but again followed that up by saying “I was at school.” She was asked whether K drank daddy’s wee, to which she said “[K] is naughty, she eats poo.” She was then asked whether her father had a boyfriend to which she answered in the affirmative but then said “[Ms Z]. She’s black. I wasn’t there, I was at school.” She was asked what colour was her father’s wee and she pointed to her arm and said that “its skin colour.”
The Child Safety Officers then had a further conversation with the mother, during which the mother stated that the father hits JJ, and she is aware of this, as it occurred when the parents were previously in a relationship. This appears to be the first occasion that this allegation had been made by the mother.
There was a further communication between the mother and a Child Safety Officer on 3 August 2011. The notes of that conversation[22] record the mother contending that B couldn’t be trained to say the sorts of things that she’s disclosing. It is also reported that the mother advised that she had said to K “you didn’t lick your dad’s sausage or drink his wee did you?” to which K said “yes I did”. In that conversation the mother is recorded as having said that she “gets upset and angry.. and needs to get a job so she is not thinking about this all the time.”
[22]1 TB 213-4.
On 5 August 2011 the mother again contacted the Department. In that conversation she is recorded as having said that she “can’t handle it” and feels that there is enough for Child Safety to intervene. She is then recorded as having said that the “SC (it is unclear which child is intended to be referred to) has said that her father is touching her vagina.”
On 16 August there was a further communication between a Child Safety Officer and the mother[23] in which, amongst other things there is recorded that the “mother believes father is doing sexual acts in front of SCn” and “mother doesn’t care about SCn being in father’s care, she is just concerned about sexual disclosures.”
[23]The note of which conversation is at 1 TB 215-6.
In the mother’s trial affidavit she recited some more disclosures made in September 2011. On the particular occasion, she was in a car with a friend and both of the children. Her friend inquired why K was having so many accidents, meaning toileting accidents. During the course of the ensuing conversation, K said words to the effect of “my privates are hurting mummy” and then explained that was because “daddy hurt it” and said that it was “at [K’s] party” which the mother interpreted it as meaning her birthday party on or around about late August. K then said that the paternal grandmother, who was supposed to be supervising that visit, was not there as “she went shopping” and that only the father was looking after B and K.
The Department records have a note in relation to a telephone communication between a Child Safety Officer and the mother on 9 September 2011. The relevant entries record that the mother advised that “[B] has made more disclosures. The mother advised that [B] had stated that the father had punched [Ms Z] in the mouth and her teeth fell out so the tooth fairy had to come. The mother also told Child Safety that there was blood and [Ms Z’s] eye was bleeding and the father punched [Ms Z] in the stomach. The mother explained that [Ms Z] was the father’s ex-girlfriend from a long time ago and that she is a lesbian and that [B] talks about “sexual things with a black baby.” The mother also advised that [B] comes home from the father’s place angry because “she thinks I am doing nothing about.” She then went on to say “I want to dress them in pants as men can slip their hands up dresses.” There was also a report that “[B] attacked my mother’s rectum and mine. She put her fingers up there.” She also stated “[B] also attacked a girl on the breast.””
The evidence also contains a notification to the Department on 9 September 2011 in which, amongst other things, the following is recorded:
…
·Notifier stated that on Monday (5/09/2011) SC [B] told her mother that at her sister [K’s] birthday the maternal [perhaps in context, this should have been paternal] grandmother left the children home with the father and SC [K] said “hurting at privates on her birthday party”, unsure whether this means that the father has hurt her private or that the SC’s privates were hurting.
·Notifier stated that [B] has also told her mother that her father has sex with a girl and bashed her smashed her teeth and her eye was bleeding unknown when this occurred.
·Notifier stated that the father has been violent towards an ex-girlfriend in the past and bashed her.
·Notifier stated that the father is gay and has sex in front of the children and involves them. Notifier could not provide any further details in relation to this such as when this last occurred.
…
The mother’s affidavit then details further events on 17 September 2011, in which she says that at changeover, the paternal grandmother was unpleasant and intoxicated. In the aftermath, K is said to have told the mother “no he’s not daddy can’t hurt me anymore .. daddy’s coming here to hurt you mummy .. he’s going to stab you in eyes and your face and your belly and dig a hole and put you in it.” The mother then says that on the following day (ie 18 September), B told her “daddy and [Ms Z] had a blood test in the car.” The mother interpreted that to mean that there had been needle sharing between them.
A notification to like effect is recorded in the Department’s records for 19 September 2011.[24]
[24]1 TB 259-60
On 8 October, after the children were returned to the mother’s care from spending supervised time with the father, the mother noted that there were two bruises on one side of B’s neck, and one bruise on the other side of the neck. The mother thought the bruises were like “love bites”. When asked by the mother what happened, the mother asserted that B said “daddy did it”.[25]
[25]Mother’s trial affidavit para 514.
There was then a further 93A interview conducted with B on 10 October 2011.
A summary of that interview is contained at 1 TB 291 and relevantly provides as follows:
During the 93A the victim child stated “dad punched me on the neck with his knuckles and with his feet.” She further stated “dad tackled me.” The child indicated towards her knuckles and her feet. When ask (sic) why she thought her dad had done this, the victim child stated “he is not happy, he says I do not love him anymore.”
Without any prompting the victim stated that she was under the covers with dad and [JJ] and then daddy sex with me touched me in the privates, he said he wanted to kiss me on the lips and have sex with me and [K].
The victim child stated that dad tickled her and then indicated her own hand towards her vagina area. When ask (sic) what dad had touched her on the private parts with the victim child stated he touched her with his fingers. When ask (sic) if there was any one else there the victim child stated that there was no one else there at the time.
The victim child further stated [K] was eating dad’s pee, his poo and his hair and that dad had taken his clothes off. The victim further stated that [K] was drinking dad’s pee from his sausage. The victim child further stated there was a young man licking and sucking on dad’s sausage she states his name was [LL] and he had red hair. The victim child indicated with her mouth and tongue how [LL] was licking and sucking dad’s sausage.
The victim child was very chatty and had repeated a lot of what was reported to have happened in previous notifications. The victim child does not have a clear understanding of time. For example everything she speaks about happening she relates to it happening today. Everything is today even when it was a few weeks prior. The victim child has a hearing problem which requires her to wear a hearing aid which she does not wear all the time, it is unknown at this time if the victim child was wearing her hearing aid when interviewed previously by police or Department of Child Safety.
The relevant entry in the Magellan Report dealing with this reads as follows:
The outcome of this investigation and assessment was recorded as substantiated risk of emotional and physical harm as a result of failure to protect from neglect recorded in relation to [B] and [K], with both the mother and father identified as being responsible for the risk of harm to the children.
In respect of the sexual abuse allegations in relation to the father the following was noted:
It is assessed that the allegations of sexual abuse against the father are unable to be substantiated this time for the following reasons:
·While [B] made direct disclosures to police in relation to the allegations, police have significant concerns for [B’s] intellectual capacity and ability to make disclosures of this nature.
·The disclosures made to police were almost exactly the same wording as used during counselling sessions with the [Y] Church.
·Police have concerns that the counsellors have encouraged [B’s] disclosures and asked her direct and leading questions which make it difficult that [B’s] disclosures are genuine and unprompted.
There was extensive cross-examination both of the father and paternal grandmother about the extent of the paternal grandmother’s supervision of the father’s time, and the opportunity for him to have either sexually or physically abused the children during times that they were in his care. The upshot of that evidence was that on occasions when the paternal grandmother was preparing meals in the kitchen, there may have been some limited opportunity for the father and the children to be partially out of her sight in another room. However the father denied that he had in fact ever been out of his mother’s sight because he was conscious of the prospect of allegations being made by the mother. I accept that evidence.
Late on Friday 14 October the mother advised the paternal grandmother that the forthcoming time with the father under the present orders would be suspended. Subsequently the father has only spent supervised time with the children at a contact centre.
In evidence were video recordings of parts of three play therapy counselling sessions between B and Ms BB. The first of those was taken on 17 October 2011. Precisely why Ms BB commenced to video tape aspects of her counselling sessions was not satisfactorily explained. Her role, on her own admission, was wholly therapeutic. It is difficult to see what therapeutic benefit could be derived from the recordings.
A partial transcript of the sound of the video was in evidence.[26] In that, B is recorded as having said:
We were coming along walking, see that, hey daddy no more touching my privates. Dad sexed with me and I am trying to say no more sexing I don’t like it…Yea well ahh my mum told me to be brave and um tell her all about it. So I do that my mum you can come over be our … family with us… my mum and my sister [K] and [M] and you can help us maybe you can be proud of me, my mum said that last time she said that to me.
[26]Exhibit 7(a).
A little later in the session she is recorded as laying a male (anatomically correct) doll directly on top of a female (anatomically correct) doll and said as she took the female doll away “get off me”.
Later, again during doll play, she said “there is a blanket over me and dad kissed me and told me he wants to marry me and he said that all the time.” She was then asked what “marry” means and she demonstrated that by having the male doll lie directly on top of the female doll. There was then mention of K eating poo and the hair and the wee, and K is recorded as having said “he said he can – wants us to eat – this is his hair – this is his poo and yep and his poo and the hair, he was.” Later she said in answer to the question “and then what happened?” “That’s it yea. And at [X Pizza Shop], um I saw a guy out there and um from the yea yea um there’s a sucking on daddy’s sausage every time I saw his yea I did.” She was asked “who sucked on the sausage” and answers “a man and [Ms Z] and dad this me this is dad this is [Ms Z], this is me this nanna this is [Ms Z] this my daddy and this is [K] and me. This is me and [K] under the blanket. And um they are sexing me in their bed, me and um.”
There was then another session with Ms BB on 28 November 2011. The context of the relevant part of the video recording this was the counsellor prompting B to think about matters by reference to a book that she was reading, from which it appears there arises opportunity to discuss sexual abuse. At some stage there is reference to X Pizza Shop. In the course of that discussion B can be heard to say “daddy um told [K] to come over and um sex us maybe yea.” Later she referred to a man crossing the road and then said “daddy had no clothes on and yea and it goed in the bin.” She agrees with a question “daddy had no clothes cause they were in the bin is that what you were saying?” And then she says “I chucked the knickers in the bin yea.” And later “I vomited I was sick yea I was sick.” The up-shot of the interview at that point appears to be B asserting that the father was naked at X Pizza Shop and threw his underwear in the bin.
Much later in the interview the counsellor prompted B by saying “you said to me daddy makes us eat wee and poo and hair, show me how that happens” to which B can be observed to put the girl dolls face over the front pubic area of the boy doll, and whilst doing so, used the word “hair” and then said “like that poo” by moving the girl doll to face the rear anal area of the boy doll. She then said “and then [K] got there and make … mum, mum told me to bite the sausage because” but was interrupted by the counsellor who said “hang on mum told you to what?” to which B responded “to bite the sausage off”. She then again was asked “show me how you eat the wee and the poo and the hair show me about that” and she again simulated something which can be perceived as sexual activity with the dolls. There was then a somewhat worrying passage a little later in the interview as follows:
[B]: I told nanna [Ms KK], um, daddy make me sick and um and that I touched his w, I don’t know I can’t remember . r
Counsellor: You told nanna daddy makes you sick.
[B]: Yea I can’t I leave out a bit I forgot. I forgot leave out a bit.
Later there is recorded that B said “[Ms W] talking like this … I mean I am standing up, I’m standing up and I told her all about it, I tell her about daddy and I tell her all about the right things I did do it.”
The video recordings were played to the Court. To my mind one of the most telling features of them is the relatively sing-song way in which some of the disclosures are made. To my mind they have a distinct air of a recital rather than a disclosure. Moreover, it must be borne in mind that by October 2011, B had been making disclosures for about four months, and had been questioned a number of times in s 93A interviews. Perhaps it is therefore not surprising that there was an air of recital about some of her disclosures in the videos.
Interestingly, a similar observation was made by the investigating officer in relation to B’s disclosures during the course of her s 93A interview on 10 October 2011. In the Queensland Police Records it is noted:
..At this time it is very difficult to establish if [B] is relating information in relation to things she has experienced or things that have been brainwashed into her head. The child is very repetitive when she says the information and repeats the same thing over and over, when ask (sic) to explain a little more she states “I don’t remember.”…[27]
[27]1 TB 290.
Ms BB in her evidence also referred to a further disclosure made to her by B on 28 November 2011. In Exhibit 6 she said as follows:
On 28th November 2011 after [B’s] session, [the mother] and [K] and [M] came in. [K] sat beside me on my right on one lounge and [the mother] sat beside [M] on the other lounge facing the one I was on ([D Church Youth Services] Child Therapy Room). [B] was playing on the swing. [The mother] was chatting to me debriefing a little then got distracted by [B] to be pushed on the swing. [The mother] was trying to convince [M] to push [B] so she and I could chat. While they were discussing that I was trying to engage [K] in conversation about her tea set she had just been brought by mum. Instead of playing with the tea set she picked up the pink toy mobile phone as if to talk to me, then put it down and stood in front of me at eye level. She made direct eye contact with me and said “my daddy touched me in the privates.”
I looked directly back at her and said “oh where are the privates can you show me what you mean?”
[K] wriggled onto the seat beside me and lifted her skirt (she had bike pants on underneath) then realised she couldn’t show me well enough so lifted her left leg and touched in the area where the vaginal opening would be situated and pocked it four times with the finger tip of her index finger on her right hand. She then rolled to her right and pulled her skirt up and pushed her finger onto her pants where the anal orifice area was and pocked it three times and replied “privates”.
When I asked her to tell me more she shut her lips tightly and walked away to the swing and began to demand [B] get off it was her turn.
In about January 2012, the mother spoke with a Child Safety Officer who inquired whether she knew who “[LL]” was. The mother said she didn’t but inquired of B who said “yea, that’s daddy’s boyfriend”. The mother asked “is he nice” to which B replied “no. He has black skin.” She then later said that his hair was red. The mother then spoke with her brother, who was in prison, and he told her that there were two people called LL involved in the drugs scene, one of whom was in prison with him. He also said that one of the LLs was black, and one was white.
Finally in the context of the children’s disclosures, in evidence before me[28] there are notes of the observations of the father’s supervised with the children on 5 January 2013. They include the following:
During the visit [B] went to CCS support worker and asked “can I tell you something?” Support worker responded with “yes”. [B] stated “I’m a bit nervous. I have to be very brave to tell you this.” Support worker stated “that’s ok [B] you can tell me.” [B] then stated “my mummy told me my daddy touched me in my private parts.” Support worker said “ok” whilst nodding and [B] continued play.
After the girls had been collected by [the mother] another CCS client approached supervisor CCS and explained that [the mother] had approached her a week ago questioning if she felt her children were safe at the centre. CCS client advised further that [the mother] said that the centre sides with the father and she does not believe her children are safe at the centre.
[28]At 2 TB E22.
That matter was in due course reported to DOCS by the centre. In the Magellan Report of 28 February 2013, in discussing the response of DOCS to that notification, in part there appears:
..There have been a number of notifications recorded in relation to allegations that [the father] has sexually abused [B] however none of these notifications or criminal investigations have substantiated that sexual abuse has occurred. It is suggested in the history that [the mother] may be coaching [B] to disclose sexual abuse for Family Law Court purposes however it does not appear that these allegations have been substantiated either. It is known that [B] is highly vulnerable as she has an intellectual impairment and increased medical needs…The current concerns allege that [B] disclosed that her mother told her that her father touched her privates. This does suggest that [B] may have been coached however there is not enough information to know for sure and there is no indication at this time to suggest that this has caused detrimental emotional harm to [B]…
Responses to the disclosures, by relevant authorities
Notwithstanding the numerous involvements of both the Department and Queensland Police, there has never been any risk of sexual harm substantiated against the father, but rather, only ever a substantiated risk of emotional harm as against both parents for the exposure of the children to their parental conflict.
On the other hand, Mr BB was adamant that she believes based upon her involvement with the children, that both B and K have been sexually assaulted, although in fairness, she did concede that therapeutically “knowing the truth is not significant” because she still nonetheless has to work with the emotional presentation before her. I must say I have real reservations about Ms BB’s involvement with the children. It plainly pre-dated their disclosures, and was for a purpose which is hard to identify. She is plainly associated with the mother, and it appears as though they may be involved in the same church. Moreover, as has been seen, the way in which Ms BB conducted some of her counselling with a view to, it seems, eliciting disclosures, involved leading questions and to an extent, repetition. Her approach was intended, it seems, to be therapeutic, and to that extent, it may be justifiable. However from a forensic point of view, it was quite unsatisfactory.
Further, Ms W was of the view that B was an innocent child and fundamentally truthful. The criticisms which I have made in relation to Ms BB do not apply to Ms W, however I think it is important to note that she also identifies a long history on the part of the mother of making negative comments in relation to the father with a view to, seemingly, getting the school on her “side” in this dispute.
Analysis of the risk
Plainly the children’s disclosures are wholly devoid of sufficient specificity as to even permit the commencement of criminal proceedings to be considered. Moreover, there are the issues surrounding the delayed development of B, the tender years of K, and the unfortunate – even if well meaning – intervention of Ms BB, which would loom large in any such prosecutorial discretion as well. That said however, on occasions seemingly un-coached disclosures have been made, which do have a consistent theme to them, which could be, on one view, indicative of some event or events occurring on some occasion or occasions. It therefore is useful, as a first step in assessing the level of risk, to determine the likelihood that some event of the kind contained within the disclosures has occurred.
The following matters support a conclusion that some event of the kind described by the children occurred:
·The children identify some quite specific concepts eg “sausage” and the ability to simulate what appears to be male masturbation. Further, they are able to identify their private parts and using anatomical dolls, B has been able to simulate with some accuracy, sexual positions;
·B’s medical issues makes it unlikely that she is able to learn extensive lines (however that said, she does on occasions during interviews appear to express some disappointment that she has “forgotten” things and does have an aspect of sing-song recital in some disclosures).
On the other hand, I identify the following points as suggesting the unlikelihood of any event of the kind described occurring:
·The disclosures, or at least many of them, involve an ex-girlfriend of the father, who on the unchallenged evidence, he has not seen for six years and does not even know how to contact;
·On at least one of the occasions seemingly described in the disclosures, the event would involve sexual conduct between as many as four adults, and perhaps even involving the paternal grandmother as well;
·One of the disclosures would involve, if taken at its face value, the father being naked at an X Pizza Shop in suburban Brisbane, and there performing sexual acts with an unknown male, and involving the children whilst doing so;
·Many of the conversations surrounding the disclosures appear to have an element of fantasy to them;
·There is a reasonable basis to suspect that on occasions the mother has coached the children, or at least B.
Further, it seems to me that there are a number of facts closely associated with the disclosures, or the events allegedly being described therein, which tell against the disclosures likely being of actual events. I identify those as being:
·The mother has long said that the father is gay, a paedophile, and has a lesbian girlfriend who (it seems) engages in orgiastic sex with another gay man and lesbian woman. This, on its face, seems somewhat unlikely;
·The mother on the children’s evidence, has been coaxing them with rewards to speak to police. There are at least two instances of that: the first is at the Suburb AA Police Station, when she was told by the police not to get McDonalds to the child if she spoke to them, and secondly, B’s references to promises to keep secrets with the mother, including a “pinkie swear” and being rewarded by being taken to Disney on Ice;
·The mother seems to have, in 2011, progressively escalated the number and type of disclosures being reported, with a clear view to have the Department intervene, and if needs be, take the children from her and put them into foster care, so as to take them away from the father;
·The mother plainly was, and probably remains, in a highly anxious condition;
·The mother seems to habitually interpret any ambiguous disclosure by a child in the worst possible light. For instance the mother believed that when K said she vomited, it must have been semen, however the testing negatived that. Another example is that because her son L asked for a sexual assault brochure at about the time when B and K first disclosed, she formed the view that the father may have sexually abused him;[29]
·The mother unquestioningly accepts what the children say against the father, however wants to pick and choose which disclosures of the children about her are true. For instance, on 16 December 2012, DOCS was advised that B had disclosed her mother “took drugs” and described her being the under the influence.[30] The mother wholly denies this, and in doing so, must be conceding that there be a degree of unreliability to B’s stories;
·It seems almost too much of a coincidence that the first disclosures were made only days after the first Family Report interviews. Moreover, they appear to have, to an extent, clustered around significant court events. There is certainly adequate material from which one could infer that there is at least some forensic advantage to the mother in having the allegations live before the court.
[29]1 TB 301.
[30]At 1TB 345.
The police have not prosecuted the father. The Department have not intervened other than to substantiate emotional harm against both parents. Of course the police and Departmental standards for intervention, do not necessarily, entirely or even substantially coincide with the relevant test of unacceptable risk in this Court. I therefore place little weight upon either of those facts.
Ultimately I conclude that the likelihood that the father has sexually abused either child is low, and certainly the evidence falls far short of persuading me, on the balance of probabilities (bearing in mind the gravity of the allegation) that the father has sexually abused the children. However that is not the end of the matter. Even though I think it unlikely that he has in fact done so, it would have to be conceded on the basis of relatively consistent disclosures over a relatively extended period of time, to a variety of people and in a variety of circumstances, that there is a reasonable basis to think that the father presents some risk of sexual harm to the children. In gauging the magnitude of that risk, I identify that the harmful outcome here is psychological injury to a child consequent upon abuse. In the event that abuse were to occur in the future, I would assess the probability of there being a psychological impact as high. However I do not assess the risk of the father sexually abusing either of the children in the short medium and long term to be substantial. The risks of him doing so can in any event be somewhat managed on a practical level, given that he lives, and intends to continue to live, with his mother, and the children are inevitably growing older and hence better able to protect themselves from harm.
Weighing those matter in the balance, whilst I accept that there is some risk associated with the father, I do not presently assess that risk as an unacceptable one.
In this context I should note that in her written submissions, the mother said “I suggest that any doubt regarding the sexual safety or the physical safety of the children is an unacceptable risk when O Contact Centre provides a safe alternative.” I reject that argument. In many cases in this Court, however regrettable it may be, there are doubts regarding sexual or physical safety of children, however the question for determination is the degree of acceptability or unacceptability of that risk.
Does the mother present an unacceptable risk?
As has been discussed already, the mother, at least in 2011, waged a virtually unremitting campaign to have the father’s time with the children restricted to professionally supervised time, at best. This campaign involved, when a “satisfactory” outcome could not be achieved when she first consulted the Suburb AA Police, her then shortly thereafter attending the Suburb CC CSSC, and later in the face of “unsatisfactory” appeals to DOCS, she proceeded to continue to make repeated contact with them, which contact appears to have substantially abated after the Court ordered supervised time only between the children and the father.
The mother refused to concede even the possibility that the father had not sexually abused B. She also appeared in cross-examination by counsel for the Independent Children’s Lawyer to have a similar conviction in relation to sexual assault of K as well. She did not concede that the recollection of the children was not necessarily reliable, and agreed that she was unable to accept that there was an innocent explanation for their disclosures. She justified that on the basis that the children didn’t just tell her, but showed her actions consistent with the events they were describing. She said that she strongly believed the children. Moreover, she was markedly critical of both the Queensland Police and DOCS, describing them as “both having dropped the bat”. She said that the Queensland Police only couldn’t take the matter further “because [B] wasn’t strong enough.” She was at pains both in her evidence, and in her cross-examination of one of the Police Officers, Sergeant C, to point out that the investigation remained open, and would be open forever, and could be re-enlivened if “[B] had more memory.” All of this would, if taken at face value, tend to suggest that her belief is so deep-seated, and her rejection of any alternative so denying of any possible exception, that she would continue to carry the matter forward on an indefinite basis, until such time as what she perceives to be a satisfactory outcome is achieved from the authorities.
Whilst in the context of sexual abuse allegations which are untrue, such an approach is undoubtedly unhelpful and can comprise emotional abuse of a child in itself, in other contexts, such determination can be positively in the children’s best interests. Indeed the mother’s approach to B’s health is a case in point. B for some period of her earlier life was plainly not developing appropriately, but her medical practitioners were unable to diagnose what the issue was. It did not appear to be in any dispute that ultimately it was the mother’s relentless pursuit of the relevant doctors that saw B properly diagnosed. However the fact that she behaved that way in relation to B’s medical issues, and appears at least on one view to behave that way in relation to the sexual abuse allegations, does suggest that this is part of the way in which she functions, and particularly, part of the way she deals with the stress associated with adverse events involving her children.
Ms F was asked about the mother’s personality and behaviour. She identified that to her observation the mother was fiery and determined, and likened her to a lioness protecting her cubs. She agreed with the suggestion that the way in which the mother acts protectively in relation to her children is to not leave any stone unturned.
The mother was questioned about how she might react in the event that the father was able to commence spending unsupervised time with the children again. Her answer in cross-examination was to the effect that she would hope the children were kept safe until they have therapy to find out why they are saying what has occurred. When asked what she proposed in the event that some therapist could not get to the bottom of it, she indicated that she regarded safety as the number one priority. When she was later cross-examined again in relation to whether she would have misgivings in the event that there was no supervision of the father’s time with the children, her answer was to the effect that she did not believe she would have misgivings after a court case, because it wouldn’t be her who had made the decision in relation to the children spending unsupervised time. That said, she did indicate that it was her desire nonetheless to ultimately get to the bottom of the reason why the children were making allegations.
There is plainly therefore a risk that in the event that the children were either to live with the father, or spend unsupervised time with him, that the mother would be so anxious about the prospect of them being abused in his care, that the same sort of escalation that occurred in the second half of 2011 would re-occur, with the children being the subject of investigations by DOCS, Queensland Police, medical or psychological professionals and the like.
Ms F gave some evidence in relation to the prospect of the mother being able to accommodate the father having unsupervised time with the children pursuant to Court Order. She conceded that it was “possible” that a Court decision permitting that may moderate the mother’s attitude to the father spending unsupervised time with the children, and expressed some confidence that the mother would try to comply with Court Orders to that effect.
Plainly the mother does present a risk of emotional harm to the children in this respect. However at this point in time, there remains, at least on the evidence, a real prospect that, it there were to be a decision permitting unsupervised time with the children, she would feel absolved from all responsibility for it, and hence be prepared to comply with the orders and not subject the children to the battery of investigations to which they were exposed in 2011.
DOCS officers have identified on occasions that likely at the heart of the mother’s behaviours is her anxiety, perhaps in part because she herself was the subject of sexual abuse as a child. It may be, if that be the case, then ultimately she will be unable to not obsessively focus on her fears of abuse, but at the moment the evidence would not permit me to so conclude. I therefore do not assess the risk which the mother poses in this respect as an unacceptable one at this point in time.
There was a subsidiary issue which was put, but not with any force, in relation to the mother, and that is that she may from time to time have relapsed back into heroin use. She was cross-examined by reference to that, and denied doing so. The evidence does not persuade me, on the balance of probabilities, that she indeed has. Moreover, in her evidence she said that she was aware of the temptation to relapse, but she had a safety plan to cover the eventuality that it occurred, and otherwise appeared to have a mature and sensible approach to her past addiction to heroin. She remains on methadone, and appears, at least as at the time of trial, to be compliant with her doctor’s recommendations in relation to that.
Again, whilst the mother presents some risk in relation to a return to drug abuse, I do not presently assess that as unacceptable.
S 60CC(3)(a): Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
B is now 11 years of age, however it is said that she has a developmental age of about 5 or 6. K is only 5 years of age. In those circumstances, the weight I would give to any of their expressed wishes would be very slight. To the extent that it is relevant, B appears to have, on occasions, expressed desires to live with the mother and not spend time with the father, although during the Family Consultant’s observations of time between her and the father, she was warm and affectionate to both him and the paternal grandmother. The various reports from the father’s visits at O Contact Centre support the conclusion that B’s relationship with the father is a warm one.
As to K, in 2011 she plainly expressed a strong aversion to spending time with the father, however that appears to have abated, and the most recent supervisor’s reports from the Contact Centre would suggest that she now enjoys a good relationship with him, although I do not have any recent intimation of any wish as to her living arrangements.
S.60CC(3)(b): The nature of the relationship of the child with:
each of the child's parents; and
other persons (including any grandparent or other relative of the child)
As I have just indicated, both children in the past have expressed either resistance or ambivalence to spending time with the father, and have expressed a dislike, fear, or both, of him. That said, during the course of supervised time, it appears as though both children have reignited a good relationship with their father. They also appear to have had at all times a good relationship with their paternal grandmother, although as I have indicated earlier, there were occasions when she was subject to some criticism by them. It also appears as though they have had a good relationship with their paternal aunts, uncles and cousins on the father’s side of their family.
Plainly the children’s primary bond is with the mother. They do not seem to have ever expressed the view that any aspect of their experience of their relationship with her is difficult or adverse.
As at the time of trial, both of the mother’s older two children were living with her. Ms F did not think that the sibling bonds between the children the subject of proceedings and the mother’s two older children were particularly significant, in part because the reunification of the family was only relatively recent, and their experience of the children prior to then was not substantial.
Finally the maternal grandmother’s relationship with the children appears to be a warm and affectionate one, although in some of the material there is a suggestion that her husband is an alcoholic.
S 60CC(3)(c): The extent to which each of the child's parents has taken, or failed to take, the opportunity:
to participate in making decisions about major long-term issues in relation to the child; and
to spend time with the child; and
to communicate with the child
This is a matter of some, albeit not determinative, consequence in this case. For the period of time that B was in foster care, the father does not appear to have had substantial contact with her, although he did have some. For reasons which plainly would relate to his drug abuse and criminal history, he did not appear to have been considered as a possible alternative carer to the mother.
Further, in relation to K, it is plain that in the first two years of her life, the father had little to do with her at all. It may be, in part, that was because of domestic violence orders that were made against him, but whatever be the reason, plainly he was very much in the background of her very early years.
Further, some criticism can be made of the father in relation to some slight delay in taking up the opportunity of spending supervised time with the children in 2012.
In essence the point that is made about the father is that he could have, over the years, demonstrated considerably more enthusiasm to spend time with the children and communicate with them, than he in fact did. I think there is some merit in that criticism.
On the other hand, plainly the mother has been a most enthusiastic parent in relation to both children, and has always agitated to be involved in decisions in relation to them, to have them live with her, and to spend time with them when they were not in her care. Further, she has cultivated good relationships with the previous foster parents of B, and appears to involve them still within the family circle.
Ms W plainly had a very favourable view of the mother insofar as she involved herself considerably with the children’s school life. The father has not done so in any substantial way.
S 60CC(3)(ca): The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
It appears as though the mother has not sought to have child support assessed against the father, nor has the father volunteered to make payments towards the costs of raising the children. Other than that the mother did not wish to obtain child support because it would interfere with her government pension entitlements, no explanation why the father had made no attempt to contribute to the inevitable costs of raising the children was given by him.
The mother has fulfilled her obligation to maintain the children. At times she has lived in somewhat chaotic conditions, with poor budgeting and the like, however with the assistance of D Church, that appears to have been turned around and she is now able to adequately manage her funds. She described on occasions going without some luxuries for her – eg cigarettes – so as to properly provide for the children.
S 60CC(3)(d): The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
either of his or her parents; or
any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
For some considerable time now, both children have lived with the mother. They plainly have a strong bond with her. No doubt their primary attachment is with her. If that were to change in any substantial way, no doubt they would be likely to experience both short term and perhaps medium term stress and anxiety. In the case of B, no doubt her mother is very important to her, particularly given her seeming lack of friends at school. If she were not have substantial time with the mother, in B’s case it is highly likely that the effect would be considerable.
Ms F gave compelling evidence as to the likely result of the children being separated from their mother. She described them as likely to suffer an “enormous amount of grief” and identified K as particularly likely to so suffer. She said that K has only ever known her mother as a carer and to remove her from her mother would affect her inner sense of strength and stability, because she obtains her primary sense of security and trust from her. She described the likely impact on K as “profound”. Further, if there were permanent damage to either child, she would expect it to impact upon their feelings of self-esteem and self-worth as they move into adulthood. They might perceive that they lost that parent because of what they did and blame themselves for the loss of that relationship. In the long term, it could lead to an inability to assert oneself properly, which could express itself in poor friendship and relationship choices, fuelled by a deep need for acceptance that might outweigh prudence.
She was less adamant in her views in relation to B, in part because she has already been separated from her mother for long periods in the past.
S 60CC(3)(e): The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
This does not appear to be a relevant consideration in this case.
S 60CC(3)(f): The capacity of:
each of the child's parents; and
any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
The mother
Save for the already discussed concern in relation to her comprising a risk of emotional harm to the children from her lack of insight into the effect on them of her persistence with attempting to get authorities to investigate their disclosures of sexual abuse, there is no recent criticism to be levelled of the mother in relation to her capacity to provide for the children. That is not to say that there are some aspects of her behaviour in relation to them that may not be unusual; for instance, plainly she is strongly assertive, can become extremely angry around them, and may not stop people around B from suggesting that she is in some way shape or form less capable than other children, but really in the context of this case, those criticisms are not of much moment.
In the past, there have clearly been serious question marks surrounding the mother’s capacity to properly care for the children. The evidence is replete with examples as late as 2011 of the mother being intoxicated when having the care of the children, and when she has, on occasion, taken the children with her walking at night, seemingly for long distances for purposes which are not clear on the evidence. However it appears as though the mother has, perhaps in part because of the intervention of workers associated with D Church, stopped so behaving. Nonetheless it is a matter which is of some concern, given the possibility that her behaviour may regress.
The father
The father is largely an untested carer for the children. Save for the several weeks after February 2011 when they were in his sole care and not seeing the mother at all, he does not seem to have ever had the children in his care for any protracted period. The longest appears to have been on occasions when he and other family members had them over weekends, and on occasion took them camping.
The father does not appear to have, in recent times, been involved with the children’s medical issues, or their educational issues, in any great way. That is not to say that he may not have the capacity, but at the moment it is something of an unknown quantity.
It must be reiterated that the father’s history of domestic violence, albeit admittedly mostly associated with excessive drug or alcohol use, is a concern, in that it demonstrates a lack of insight as to the likely effect of such behaviour upon the children.
The paternal grandmother
It is relevant to consider the paternal grandmother’s capacity to provide for the children, because the father proposes that if the children live with him, or indeed spend unsupervised time with him, it will be at the paternal grandmother’s house, or at least based there.
Again there is little direct evidence as to her capacity in this respect, although there is evidence of her preparing meals for the children during occasions when they were spending supervised time with the father, and there appears to be a clear interest on her part in involving the children with their cousins and aunts and uncles, which no doubt would be an important way of emotionally aiding them.
S 60CC(3)(g): The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
This does not appear to be a relevant consideration beyond the discussion in relation to risk and capacity already undertaken.
S 60CC(3)(h): If the child is an Aboriginal child or a Torres Strait Islander child:
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
the likely impact any proposed parenting order under this Part will have on that right
This factor is not relevant here.
S 60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
This matter has been sufficiently discussed in the preceding paragraphs of this judgment.
S 60CC(3)(j) Any family violence involving the child or a member of the child’s family
Plainly family violence has been a major player in the parties’ domestic life, and indeed the children’s early lives. It is not to the point who instigated it: it is apparent that whoever instigated it, on several occasions, both the mother and father were active – to the point of enthusiastic – combatants. It was said by one witness that the mother and father should never have entered into a relationship because they were bad for each other. That appears to be an accurate judgment of the situation. They appear to have a capacity to irritate the other to the point of violence. They have a toxic dynamic.
S 60CC(3)(k): If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
the nature of the order;
the circumstances in which the order was made;
any evidence admitted in proceedings for the order;
any findings made by the court in, or in proceedings for, the order;
any other relevant matter
Many family violence orders have applied to both the children and the mother. I do not discern that there is any relevant inference that can be drawn from them beyond that which I have discussed in the preceding paragraph. Both the mother and the father are violent people in the right circumstances.
S 60CC(3)(l) Whether it be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Plainly in this case it would be desirable, if at all possible, to make final orders, so as to preclude further litigation between the parties. However that is but one factor to be weighed in determination of the children’s best interests.
S 60CC(3)(m) Any other fact or circumstance that the Court thinks relevant
I cannot identify any other fact or circumstance that is relevant.
PARENTAL RESPONSIBILITY
Plainly the s 61DA presumption does not apply here given the extensive history of family violence. There is no prospect whatsoever that the mother and father could exercise joint parental responsibility, it would simply descend into chaos. That cannot be in the children’s best interests.
In my view, the parental responsibility should rest with the resident parent. In my view such an order is necessarily in the best interests of the children.
WITH WHOM SHOULD THE CHILDREN LIVE?
This is a vexed question. The mother contends that the father is an unacceptable risk of sexual harm to the children, and hence says, in effect, that mandates that the children should live with her. However I have already found that I am not satisfied that the father is an unacceptable risk of harm.
On the other hand the father says that the children should live with him full time, because the mother presents an unacceptable risk of emotional or psychological harm to the children. However as I have previously indicated, I do not find that the mother, at least at the moment, is such an unacceptable risk.
The father lives at Suburb P (a bayside suburb of Brisbane) and works at Suburb NN (in the eastern suburbs of Brisbane). The mother lives in the inner southern suburbs of Brisbane, and the children go to school at nearby Suburb CC State School. Even if the parties could communicate civilly – which they plainly cannot – there is no practical prospect of equal shared time, or even substantial time with the non-resident parent; the question therefore is who should the children primarily reside with. I identify the following factors as telling in favour of the children residing primarily with their mother:
·They have, save for periods when B was in foster care, always resided with her, and enjoy a good relationship with her;
·She provides a good home for the children, with good facilities, amenities and food;
·She has the support of her mother, who lives not far from her, in caring for the children;
·She has been excellent at arranging the children’s health needs, and involving herself in their education;
·The impact on the children – especially K – of not living with the mother is likely to be profound.
I identify the following points as telling against the mother having the primary care of the children:
·She presents a risk, albeit presently not an unacceptable risk of emotional harm to the children, by virtue of her obsession with the father’s alleged sexual abuse of them;
·There is some risk she might relapse into drug abuse;
·She may not be able to promote the children having a relationship with their father.
The following factors tell in favour of the children residing with the father:
·It would maximise their opportunity to obtain the benefits of having a meaningful relationship with him;
·It would maximise their chance of re-establishing bonds with their aunts, uncles, and cousins, and maintaining their relationship with the paternal grandmother;
·B would have the opportunity to attend Suburb N State School with a dedicated Special Needs Unit.
On the other hand I identify the following points against the father having the primary residence of the children:
·His capacity to care for them is largely untested;
·The extent to which he would facilitate the children maintaining a meaningful relationship with the mother is unclear. The only real indication of his likely behaviour is the weeks after February 2011 when the children were in his care, during which time the children had no contact with their mother whatsoever;
·He presents as a risk of sexual abuse of the children, albeit not presently an unacceptable risk.
Weighing those factors, I find that it is presently in the children’s best interests to remain in the primary care of their mother. Particularly I am troubled by the risk of long term emotional damage to K if she is removed from her mother’s primary care.
I am conscious that my conclusion in this regard is at odds with the latest recommendation of Ms F. In the first Family Report she had recommended that the children remain living with their mother, largely because of the father’s past violence, his lack of insight or understanding of the children’s needs, and the close attachment with their mother. However by the time of her second Report, in view of the mother’s zealous pursuit of the sexual abuse allegations, her opinion changed, and she was of the view that there should be a change in care of the children from the mother to the father, with the mother’s time with the children being supervised for the initial six months. She anticipated that there would be a further reassessment of the situation undertaken then.
Whilst I do give her views some weight, as has been seen, I do not presently assess the mother as an unacceptable risk of emotional harm to the children, which really lay at the foundation of Ms F’s opinion. As has been seen, the level of risk which I acknowledge is associated with the mother does not in my view outweigh the competing considerations, namely the potential for profound impact on K and the fact that the father is a largely untested carer of the children.
WHAT TIME SHOULD THE CHILDREN SPEND WITH THE FATHER?
The mother does not say that the children should not spend time with the father. Rather what she says is that any time he spends with them should be supervised. She says that on the basis that he presents an unacceptable risk of sexual abuse to them, but I have rejected that. The level of risk of sexual harm which he poses to the children is not such as to require supervision. It follows that there is no basis for requiring the father’s time with the children to be supervised.
One of the matters which the Independent Children’s Lawyer raised with me in submissions was the prospect that there be an interim three month period in which the father would spend unsupervised time with the children, in order that the mother’s response to that, and more particularly, the extent to which she might seek to again raise issues of sexual abuse for investigation by the relevant authorities, can be gauged. I am persuaded that such a regime of orders is in the best interests of the children. Part of the reason for the three month period was to obviate any prospect of there being protracted periods of time in the father’s care during school holidays. On balance, I am not persuaded that there should not be school holiday time in the interim period of orders. I think it will be more tellingly indicative of the mother’s likely response to the father spending unsupervised time with the children if there be such holiday time. I therefore propose to make orders to last until after the September/October school holidays, but not up until the Christmas holidays (which commence 12 December 2014). The matter will need to come back for further hearing prior to December.
That then only leaves for determination the amount of time which the children should be spending with the father. There appeared to be a degree of consensus amongst the parties as to that (in the event that it fell for my consideration), and particularly that the previous midweek time that the father spent with the children had not been easy to accommodate. I accept that. In my view it is appropriate that the time that the father spends with the children be each alternate weekend, together with one half of school holidays. It is, in my view, appropriate that it be the first half of the September holidays.
There are of course risks in making interim orders which will last for about five months, particularly if the mother again embarks upon the investigation of any suspicions she has in relation to the father abusing the children. However that can be accommodated in two ways. Firstly, there can be liberty to apply afforded to the Independent Children's Lawyer to bring the matter back on to revisit any interim regime of orders in that event (or indeed if there be other sufficient cause). The second is to continue in force the order made by Forrest J preventing the mother from taking the children to counsellors and the like without the Independent Children's Lawyer’s consent or Court Order.
Finally I should acknowledge that the course of orders which I propose to make will not conclude this litigation, which has now been on foot for in excess of three years. That is regrettable. However finality is but one of the factors to be weighed, and I do not give it great weight in this instance.
COMMUNICATION
In my view the orders proposed by the father for mid-week telephone communication between himself and the children are appropriate and in their best interests, and I will make them.
OTHER ORDERS
It is appropriate that there be a mechanism whereby the matter can be readied for the resumed hearing of the trial towards the end of the year. It is therefore appropriate to fix a directions hearing, together with giving the parties liberty to apply for directions in order to ready the matter for trial. Particularly I have in mind the prospect that there will likely need to be a further updated Family Report.
CONCLUSION
For these reasons there will be orders as set out at the commencement of this judgment.
I certify that the preceding one hundred and ninety two (192) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 11 July 2014.
Associate:
Date: 11 July 2014
Key Legal Topics
Areas of Law
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Family Law
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Evidence
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Statutory Interpretation
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