TALLANT & KELSEY
[2017] FamCA 210
•7 April 2017
FAMILY COURT OF AUSTRALIA
| TALLANT & KELSEY | [2017] FamCA 210 |
| FAMILY LAW – CHILDREN – Best interests – Whether the proposed parenting orders are in the best interests of the children – Where the father did not file any affidavits and on occasions did not appear during the final hearing – Where the parenting matter was determined on an undefended basis – Where the mother and the Independent Children’s Lawyer agreed on proposed parenting orders – Factual disputes for determination – Whether the father sexually or physically abused the children – Whether the father poses an unacceptable risk of harm to the children – Whether the father is a perpetrator of family violence – Where the Department of Family and Community Services declined to intervene in the proceedings Where the reasons for the Department declining to intervene raise concerns – Where the mother and children are Aboriginal – Where there are concerns of risk of harm to the children in the care of both parents – Where the children have been exposed to family violence perpetrated by the father – Where the children will be better protected from harm in the mother’s care if they spend no time with the father – The mother have sole parental responsibility for the children – The children live with the mother – The children spend no time with the father. | |
| Evidence Act 1995 (Cth) s 140 | |
G & C [2006] FamCA 994
Goode & Goode (200) FLC 93-286
Jarrah & Fadel [2014] FamCAFC 14
Johnson & Page [2007] FamCA 1235
M v M (1988) 166 CLR 69; [1988] HCA 68
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
Orwell & Watson [2008] FamCAFC 62
Oscar & Delaware; Oscar & Austen [2014] FamCAFC 32
Ruth & Hutton [2011] FamCAFC 99
Secretary of the Department of Health and Human Services & Ray & Males & Ors [2010] FamCAFC 258
Tallant & Kelsey [2015] FamCA 1190
Tallant & Kelsey [2016] FamCA 538
Tallant & Kelsey (No.2) [2016] FamCA 560
| Tallant & Kelsey (No.3) [2016] FamCA 933 W & W (Abuse Allegations: Unacceptable Risk) (2005) FLC 93–235 |
| APPLICANT: | Ms Tallant |
| RESPONDENT: | Mr Kelsey |
INDEPENDENT CHILDREN’S LAWYER: | Mills Oakley Lawyers |
| FILE NUMBER: | PAC | 3364 | of | 2013 |
| DATE DELIVERED: | 7 April 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 6, 7, 8, 9,10 June 2016, 17 August 2016, and 5 & 7 December 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms McMahon |
| SOLICITOR FOR THE APPLICANT: | Women’s Legal Service NSW |
| SOLICITOR FOR THE RESPONDENT: | Self-represented |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Beck |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mills Oakley Lawyers |
Orders
That the Consent Orders made on 18 December 2013 are hereby discharged.
That the children of the relationship C born … 2002 and D born … 2011 (“the children”) shall live with the mother.
That the mother has sole parental responsibility of the children.
That the father shall have no contact with the children whether in person, by telephone, by mail or any method of electronic communication.
That the mother is restrained from using illicit drugs while the children are in her care.
That the mother is restrained from engaging the child D in counselling in relation to past allegations that the father sexually abused D.
The mother will do all things required to engage with a family support service and counselling within fourteen (14) days of the recommendation to the mother by the Independent Children’s Lawyer (“ICL”) of such services.
The mother shall do all things necessary to ensure that the children attend school each day and at the required time.
That leave be granted for the ICL to provide Mr R’s report to any treating counsellor in relation to the mother and/or the children.
That the Department of Family and Community Services legal department be provided with a copy of this judgment.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tallant & Kelsey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 3364 of 2013
| Ms Tallant |
Applicant
And
| Mr Kelsey |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern the long term parenting arrangements in respect of C aged 14 and D aged 5, the children of Ms Tallant (“the mother”) and Mr Kelsey (“the father”). The parents also had sought property orders but were able to reach agreement in relation to those matters.
The proceedings have had a long and protracted history in this Court. Four previous judgments have been delivered which assist in setting out the background.[1] The previous judgments form part of and are to be read with these Reasons.
[1] Tallant & Kelsey [2015] FamCA 1190, Tallant & Kelsey [2016] FamCA 538, Tallant & Kelsey (No.2) [2016] FamCA 560 and Tallant & Kelsey (No.3) [2016] FamCA 933.
The father engaged only intermittently in the final hearing. He did not file any affidavits and on occasions did not appear including on the final day of the parenting proceedings. The Independent Children’s Lawyer (“ICL”) on that occasion proposed orders that would see the mother hold parental responsibility for the children who would live with her and have no contact with their father. The mother consented to the orders proposed by the ICL.
On the last day of the final hearing which was concerned with property orders only, the father also indicated that he opposed the ICL’s proposed order that he spend have no contact with the children. He also said that he was no longer seeking any orders with respect to parenting himself.
This judgment concerns the ICL’s proposed parenting orders. The question to be determined is whether these orders are in the best interests of the children.
Background
The mother who is 42 and the father who is 41 commenced a relationship in around 1999.
The parties began living together in 2001 or 2002 and have two daughters. C, the older child, was born in 2002 and D, the younger child, was born in 2011.
The mother has a daughter from a previous relationship, Ms H, who was 24 at the time of final hearing.
Separation
The parents initially separated in July 2013 and final orders in relation to the future parenting of the children were made in the Federal Circuit Court in December 2013. Under those orders, the parents equally shared parental responsibility for the children who lived between the parents in a shared care arrangement.
Notwithstanding their separation, the parties continued a sexual relationship until October 2014.
On 24 October 2014 the mother alleges that D, who was three, made a complaint of sexual abuse by the father. The mother ceased facilitating the children spending time with the father since this date. The allegation of sexual abuse has at all times been denied by the father.
The mother moved to a refuge at an undisclosed location with the children a few days later and an Apprehended Domestic Violence Order (“ADVO”) for the protection of the mother was sought by police shortly thereafter.
The mother alleges that the father has engaged in threatening behaviour towards her since the time of these events.
A Joint Investigation and Response Team[2] (“JIRT”) commenced an investigation into the younger child’s alleged disclosure of sexual abuse. The allegation was not substantiated and no further action was taken by police or the Department of Family and Community Services (“Community Services”).
[2] The Joint Investigation and Response Team, made up of officers from police and Community Services investigates allegations of serious child abuse.
The mother commenced these proceedings in November 2014, seeking sole parental responsibility for the children and orders that they live with her and spend no time with their father, as well as orders with respect to the parties’ property.
The proceedings were allocated into the Magellan Program in this Court. A Magellan Report[3] was ordered and Community Services were invited to intervene in the proceedings for the first time on 4 December 2014. On 19 January 2015 Community Services declined to intervene.
[3] The Magellan program is a fast–track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse. A Magellan report sets out the involvement of Community Services with the family.
The father filed a Response in February 2015 and an Amended Response in June 2015. He sought orders that the children live with him during the week and with the mother three days over the weekend during term time and that the parents equally share the children’s care in the holidays.
The First Family Report
On 16 March 2015, orders were made for the appointment of Mr R, a forensic psychologist (“the expert”), as the Court’s single expert to prepare a report in relation to the parties and the children.
In June 2015, the parties and children were assessed by the expert and a Family Report (“the first Family Report”) dated 29 June 2015, was prepared and released on 6 July 2015. Overall, the expert recommended that the father commence spending some limited supervised time with the children as a means of reintroducing them to him and expressed the view that this should occur at an approved children’s contact service “as a matter of urgency”. The expert was of the view that following reintroduction the father should resume unsupervised time with the children in a graduated arrangement progressing from unsupervised day contact to overnight time. These recommendations were predicated on the assumption that there is no identifiable unacceptable risk posed to the children in spending unsupervised time with the father. The expert had some concerns however about the father’s parenting capacity and recommended that he complete an approved parenting course. The expert also expressed some concerns about the possibility of the father misusing illicit drugs as alleged by the mother and held some concerns about the father’s psychological functioning.
Following release of the first Family Report the father then sought interim orders along the lines recommended by the expert to spend time with the children in a supervised setting. The mother opposed the father’s application and proposed that the father spend extremely limited supervised time with the children. Orders were subsequently made with the consent of the parties that the children live with the mother and spend time with the father supervised by a nominated private supervision agency or such other supervision service as the parties may agree upon.
Despite the mother’s consent to these orders she did not facilitate the children spending time with the father. The mother contends that she was “unable” to comply with the orders as she could not require C to attend unless the child wanted to and C had expressed in firm terms that she did not want to spend time with her father.
On 16 March 2016 the children spent time with the father at Child Dispute Services at the Court on one occasion which was observed by a senior family consultant.
Proceedings in June 2016
On 6 June 2016 the final hearing commenced although the father had not complied with any of the directions to prepare the matter for trial such as filing a consolidated affidavit of himself and any witness upon which he relied.
On the first day of trial the legal representative for the father sought to adjourn the proceedings on the basis that the father was said to have shown signs of some form of mental impairment and the legal representative said she was unable to obtain instructions. This application was to be considered the next day after the father obtained a report in relation to his mental condition and another preliminary matter was dealt with on the balance of the first day of the hearing. The father’s legal representative did have some limited instructions to deal with this issue, being the mother’s application to exclude the expert’s first report from the proceedings. Some evidence was taken from the expert on the voir dire in relation to this application. The expert’s report was admitted into evidence for reasons given at the time.[4]
[4] Tallant & Kelsey [2016] FamCA 538.
On the second day of the June 2016 hearing I dismissed the father’s application for an adjournment and the father’s legal representative withdrew. Thereafter the father represented himself.
The expert was then cross examined in the proceedings. In light of the further evidence concerning the presentation of the father including his attempts to have the proceedings adjourned on the basis of his mental condition the expert agreed that he had concerns about the father’s mental health. In general the expert found it difficult to comment otherwise upon the recommendations he had made in July 2015. This was especially so as the children had not spent time with the father in accordance with the interim orders. The expert was also unable to express an opinion whether the father’s drug use was a relevant issue in the proceedings.
In general the expert said that he was not comfortable with recommending any unsupervised contact between the father and children in the next 12 months. He could make no further recommendations until the supervised time began and after a time a further assessment was conducted. The expert reiterated that the father needed to address the areas of concern he had raised in his report.
On the third day of the proceedings the father made another application to vacate the hearing which was also dismissed for reasons given at the time. The mother’s case then commenced and she was cross examined.
Following the cross examination of the mother, on 10 June 2016 the proceedings were adjourned and interim orders were made. These included orders that the children live with the mother, and that the father obtain a report with respect to his mental health from his general practitioner, attend all such appointments as recommended, and abide by any treatment directions. It was also noted that the father would obtain a report in relation to his mental health and treatment for the purposes of the completion of the parenting proceedings.
It was also ordered that the father spend time with the children supervised by a private supervision agency as nominated by the ICL for a minimum of 3 hours per week and that the father have communication with the children. At the stage these orders were made the father had not spent any time with the children for 20 months other than the brief session facilitated at Child Dispute Services in March 2016.
The father was also required under the interim orders to submit to urinalysis at the request of the ICL to monitor his drug use and each of the parties were to enrol in a parenting program as directed by the ICL. The mother was also required to arrange therapeutic counselling for the children with a counsellor nominated by the ICL and was restrained from taking them to any other counsellor or therapist. Various other orders were made and the proceedings were listed at a future date for further directions. Reasons for judgment in relation to these interim orders were given on 10 June 2016.[5]
[5] Tallant & Kelsey (No.2) [2016] FamCA 560.
Shortly after the June 2016 orders the parents took steps to facilitate the commencement of the father’s supervised time with the children. The father began spending time with the children in mid July 2016. It also appears that the parents began communicating with each other and even attempted to reach agreement about the future parenting of the children.
The father had a number of sessions with a psychologist from June to November 2016.
On 1 July 2016 the mother filed an appeal against the admission of the first Family Report into evidence at final hearing.
On 17 August 2016 orders were made for the expert to prepare an updated Family Report (“the updated Family Report”) and the proceedings were fixed to resume for completion in the first week of December 2016.
On 4 September 2016 there was an incident in the course of supervised contact. The contact report records that the supervisor had some concern about the father’s tone of voice when interacting with the children which is described as becoming aggressive and that the verbal interaction between the father and D became inappropriate and aggressive when the father took D with him when he walked the dog. The father is then described as swearing and becoming distressed and yelling at the dog. The father is recorded as becoming frustrated and angry with the dog and slapping the dog on the face with force and then hitting the dog on the face with a leash causing it to yelp. It is recorded that the father then grabbed the dog’s leg and swore at it, kicked the dog three times, grabbed it by the neck with his hands and held it in the air and started to shake it.
The supervisor describes herself and D as becoming distressed and that two members of the public spoke to the father about his conduct towards the dog. The father is recorded as responding aggressively and saying “stay the fuck out of my business”. These people apparently contacted police who subsequently attended.
On this contact occasion after D and the father returned home the father told C:
we got this girl here [the supervisor] you don’t want them here, I don’t want them here, I had enough of this, I have had enough of the courts saying that I am violent.
The father was subsequently charged with animal cruelty over the incident and as a result of the incident the supervision service terminated its services.
After the supervision service was terminated C began spending time with the father of her own volition generally by catching a bus from school to his home. C has since this time spent around 2 nights a week in the father’s home and the mother has not been able to prevent her from going. D has seen the father on at least two occasions since the supervised contact ceased. On one occasion the father attended D’s school when she was delivered by the mother in the morning and on another occasion the mother allowed D to spend about 20 minutes with her father on his birthday.
On 26 October 2016 the Full Court delivered judgment dismissing the mother’s appeal against the admission of the first Family Report into evidence at the first day of the final hearing in June 2016.
On 4 November 2016 the final hearing dates in December 2016 were confirmed. The Court noted on this occasion that the father had failed to comply with trial directions regarding the filing of affidavits and foreshadowed that the matter would be dealt with on an undefended basis in his absence at the resumed hearing. Orders were also made that the mother be restrained from allowing C to spend time with the father. Notwithstanding this order C continued to attend and stay overnight at the father’s house from time to time. On one occasion she spent at least ten days in the father’s care.
On 4 November 2016 I also invited the Secretary of Community Services to intervene in the proceedings and delivered a short judgment setting out the reasons for that request.[6] It suffices to say that in that judgment I set out the mother’s contentions concerning an unacceptable risk of harm to the children posed by the father. I also identified a number of concerns in relation to the mother’s care of the children including that C had a very poor attendance record at school when living in the mother’s household and had also begun regularly attending the father’s home and staying overnight with him. The mother at that stage maintained that although the father continues to perpetrate controlling and coercive violence against her she was unable to prevent C from “self-placing” with the father. She had not sought the assistance of police or Community Services to ensure that the child did not place herself with the father. In the 4 November 2016 judgment it was noted that when the proceedings were to resume on 5 December 2016 the Court may be asked to make a finding that there is an unacceptable risk of harm to the children in both of the parents’ households and on this basis the Secretary of the Department was invited to intervene in the proceedings.
[6] Tallant & Kelsey (No.3) [2016] FamCA 933.
On 23 November 2016 the Court was notified that the Secretary declined to intervene in the proceedings.
The Secretary’s reasons for declining to intervene in the proceedings will be dealt with later in these Reasons.
Resumed final hearing in December 2016
On 5 December 2016 the father failed to appear personally at the resumed final hearing and was not represented. The participating parties sought that the Court proceed to deal with the matter to finality in the absence of the father.
Having regard to the considerations in respect of adjourning parenting proceedings, which were considered by the Full Court in Jarrah & Fadel[7], and to the principles for the conduct of child-related proceedings[8], in my view, it was in the best interests of the children for the proceedings to be finalised and dealt with in the absence of the father.
[7] [2014] FamCAFC 14.
[8] Set out in s 69ZN of the Family Law Act 1975 (Cth).
No other witnesses were cross examined at the resumed hearing.
At the resumed hearing the ICL provided to the Court a proposed Minute of Orders regarding final parenting orders which were agreed to by the mother. The proposal includes the following:
·That the consent orders made on 18 December 2013 be discharged.
·That the children live with the mother.
·That the mother have sole parental responsibility for the children.
·That the mother is restrained from using illicit drugs while the children are in her care.
·That the mother is restrained from engaging the child D in counselling in relation to past allegations of sexual assault by the father.
·That the father have no contact with the children.
·That the mother engage with a family support service and counselling within 14 days of the recommendation by the ICL.
·That the mother ensure that the children attend school each day and at the required time.
·That leave be granted for the ICL to provide the expert’s report to any treating counsellor in relation to the mother and or the children.
The hearing as it related to parenting issues was finalised on that date and judgment was reserved. The matter was adjourned to 7 December 2016 for determination of the property issues.
On 7 December 2016 both parties appeared before the Court. The father was unrepresented.
The father was given an opportunity to make submissions with respect to the parenting issues after having viewed the final Minute of Order submitted by the ICL and agreed to by the mother on 5 December 2016.
While the father did not make submissions in relation to the orders generally, he expressed that he disagreed with the order proposed by the ICL that there be no contact between him and the children. He also indicated that he no longer sought the orders set out in his Amended Response of June 2015.
Following discussions between the parties outside Court the mother’s counsel and solicitors withdrew from further representing the mother.
Consent orders as to property were then proposed by the parties following the withdrawal of the mother’s legal representatives. Final property orders were made with the consent of the parties on that date.
As indicated, the mother consents to all of the orders proposed by the ICL and it was submitted on her behalf that these orders are in the best interests of the children. When given the opportunity to make submissions in relation to the proposed orders the father only said that he disagreed with the order proposed by the ICL that there be no contact between him and the children and that he was no longer seeking any orders. He can be taken in these circumstances to agree that all of the other proposed orders are in the best interests of the children.
The Areas of Dispute
Even though the father did not file any affidavits in either the June or December 2016 parts of the proceedings there remain factual matters which require determination as they are significant matters relating to the best interests of the children. The factual matters are:
·Whether the father sexually or physically abused the children or whether he poses an unacceptable risk of harm to the children on this basis
·Whether the father is a perpetrator of family violence
Is there an unacceptable risk posed by the father that he may sexually abuse the children?
At the commencement of the final hearing in June 2016 it was the mother’s case that there is an unacceptable risk to the children in the care of the father that he may sexually abuse them. It was contended on the mother’s behalf that this risk arises from the father’s alleged sexual abuse of D in October 2014. In final submissions in December 2016 when consenting to the orders proposed by the ICL the mother’s counsel conceded that there would be insufficient evidence to make a finding that the father poses an unacceptable risk of sexual harm to the children. The mother’s counsel informed the Court, however, that the mother continued to believe that the father did sexually abuse D. It was also submitted that there is sufficient evidence from other sources to found a finding that the father represents an unacceptable risk of harm to the children.
The ICL goes further and submits that the Court may find that the mother deliberately concocted the allegation of sexual abuse and that this raises significant issues about the mother’s credit and also her parenting capacity. For this reason the ICL seeks that the matter be determined.
In my view, as the mother’s allegation about sexual harm is such a significant event which founded these proceedings and gave rise to the events that followed, a finding concerning this allegation must be made.
The mother’s allegation
According to the mother’s affidavit the alleged incident of sexual abuse occurred on about 24 October 2014. She deposes that on that day she made arrangements for the father to collect D from pre-school and the parties agreed that she would later collect the child from the father’s house. The mother says that during the car trip from the father’s home the child was very quiet in the car which the mother found unusual as the child is normally very talkative. The mother says that some hours later when she was getting D ready for bed and picked her up the child complained and said “daddy hurt my arm”. The child showed the mother the inside of her right arm at the elbow which the mother says had “a finger mark bruise on it”. The mother said the following then occurred:
I asked [D] “what happened?” [D] said words to the effect of “I hurt myself at back Dad’s [sic] and my wee-wee is sore”. Wee-wee is the word [D] uses for her vagina. I said words to the effect of “why is wee wee sore? Can I have a look darling? You know no-ones allowed to ever touch you there. Baby, has anyone touched your wee-wee?”
I undressed [D] and looked at her vagina. It looked very red on the inside of the flaps of her vagina. I have never seen [D’s] vagina look red like that before. I said to [D] “you know you need to tell me everything baby. You must trust me always.” I said: “tell mummy everything you need to. I need to know to be able to protect my babies.”
[D] looked me straight into the eyes and clearly said “I didn’t hurt my wee wee at the back of Daddy.” I then said “ok, tell Mummy darling what happened and firstly are you hurt anywhere else?” Then I checked her body. She firstly stated to me words to the effect of “Daddy took my shorts and undies off in his bedroom and Daddy told me he was putting a bandaid on it”. I then asked [D] the following questions, “Has Daddy been touching your wee wee.” [D] then nodded her head straight up and down and replied softly “yes Mummy. I don’t like it.” I then asked [D] “can you show me how you have the sore arm”. [D] grabbed my elbow with fingers pushing inside my arm hard. Later that night at approximately 8:45 pm – 9 pm I wrote down what happened and what [D] said to me to the best of my recollection.
The mother further deposes:
I also remember that after [D] showed me how [the father] had grabbed her arm I asked her “where was your other arm?” [D] said words to the effect of “on his wee wee. I don’t like him and I don’t want to see him.”
The mother also claims that she had the following conversation with the child:
…I said “you know in the morning we have to take you to the Doctor and tell them what you said” and she said, “yes mummy but no Police”.
The mother deposes to taking the child to a general practitioner the following day who conducted an examination and attending the sexual assault unit at the Children’s Hospital that afternoon at the referral of the general practitioner. The mother says that at the hospital she was interviewed by two doctors and a social worker and that D was separately examined by another doctor.
The mother also says that she and the child had attended the hospital with her older daughter Ms H (who was then 22). She says that after leaving the hospital when in the car with D, Ms H told her that D had asked her “is daddy going to get me? He hurts my wee wee” and that D was nodding while Ms H said this to her.
As a result of a notification to Community Services JIRT took on an investigation of the complaint. On 26 October 2014 a detective from JIRT telephoned the mother and asked the mother to bring D to the JIRT office.
The mother then says the following:
Around the time I was taking [D] to the JIRT office, I asked [C] [who was then 12] whether she had seen [the father] do anything to [D]. [C] said something like “Well recently [D] and I have stopped having showers together and now dad locks the bedroom door and showers [D] in his ensuite”.
The mother says that when she and D arrived at the JIRT office the child was taken into an interview room for about 5 minutes while the mother remained outside. The mother says that one of the investigators spoke to her alone and informed her that children are sometimes coached into making allegations and that she was then interviewed by the investigator. The mother said she felt that the investigators didn’t believe her and when leaving the office she said to the investigator “you call yourself child protectors you should change your name to JOKE.”
On 27 October 2014 the mother attended a police station to report alleged threats and harassment by the father in the previous few days and gave police “a full statement about [D’s] sexual assault disclosure.” The mother says police told her that they would work with the JIRT investigators but there was insufficient evidence for an application to be made for an ADVO.
The following day, 28 October 2014, the child was interviewed again by JIRT officers and in the mother’s absence while she waited outside. The mother says that she was unaware what D told the investigators.
On 29 October 2014 the father’s sister took C to stay with her at a friend’s house and the mother and D went to stay in a refuge. The mother says that she then made a complaint to a detective at the “child protection enforcement agency” about the inadequacy of the police response to the child’s allegations and failure to take out an ADVO for her own protection. Later that day two police officers attended at the refuge, took a formal statement from the mother and made an application for an ADVO. The application was based upon fears held by police that the father may harass the mother through constant text messages and may seek to locate the mother and do not relate to allegations of sexual harm of the child.
The mother was extensively cross examined about the exact words used by D to her when complaining about the sexual abuse. The mother conceded under cross examination that she did not remember what D had told her “word for word” and that the words attributed to D in her affidavit were possibly wrong. The mother agreed under cross examination that notes written later on the evening of the child’s disclosure formed part of a booklet that a women’s domestic violence service had given to her to write down incidents, while other notes were made in the following days on loose paper. The mother then said that the words recorded in the booklet (which are identical to those in her affidavit) were the exact words spoken by the child.
According to the Magellan Report, Community Services received a notification on 25 October 2014 that D had disclosed that her father had touched her “wee wee”, forced her to touch his “wee wee” and that this had happened on more than one occasion.
According to Community Services records when D attended the first JIRT interview on 26 October 2014 she shrugged her shoulders when asked her surname and when asked when her birthday is she said she did not remember. The child showed two fingers when asked how old she is (even though she was 3) and could not tell the difference between truth and lies. An example was put to her “did you come today by aeroplane” to which she responded “yes”. When asked if she was sure she said “yes”. D said that she remembered being at the hospital the previous day but did not know why and could not articulate who the members of her family were due to her limited verbal skills.
According to Community Services records when the child was re-interviewed two days later she was able to identify body parts on a body chart but could not name who was allowed to touch particular parts. Partially leading questions were then asked and the child shook her head when asked whether anyone had touched her there (the vaginal area). When asked “who touched you?” D said “daddy on my arm” and when asked whether daddy touched her on the vagina she said “yeah and on my arm”. The child was unable to provide any context at all (for the touching) and frequently said “don’t know” as her answer. When asked whether she has ever seen “daddy’s part he uses to go the toilet” she said “no”. The JIRT officers noted generally that during the two interviews that the child displayed very limited language skills and of significance the child did not name the penis or vagina as “wee wee”.
Under cross examination the mother maintained that the conversation and events surrounding the child’s disclosure were as set out in her affidavit. The mother maintained that she had not presumed that someone had touched the child when she complained of a “sore wee wee” but agreed that it was she who had introduced into the conversation the idea that someone had touched the child.
When cross examined about the conversation with Ms H in the presence of D (set out in paragraph 64) in which Ms H says that D made disclosures to her also, the mother conceded that she was not actually aware that D was nodding her head, (even though she asserts this is in her affidavit).
The mother produced a booklet which contained the original notes the mother deposed were written on 24 October. The mother did not produce the additional loose paper which also contained handwritten notes, even though the entire notes were called for.
The mother agreed that she had clearly made up her mind that the father had sexually abused D as soon as the child made her disclosures.
The mother was also cross examined about the details of D’s disclosure that she has given to other people including counsellors engaged to assist her and the child following the allegations of child sexual assault. She was asked about notes of a counsellor, Ms I, which contain many more details of the child’s disclosure than contained in her affidavit or handwritten notes. There were some matters recorded in Ms I’s notes that the mother denied telling Ms I and there were other matters which she agreed she had told Ms I that were not included in her affidavit.
Under cross examination the mother agreed that the child was assessed at preschool in relation to some speech difficulties. Records from D’s school indicate that when she was enrolled the mother disclosed that the child had speech difficulties and for this reason had completed a speech program from July to September 2015. A speech pathology assessment was carried out as a result and the report of the speech pathologist is also contained within the school records produced on subpoena. In this report dated 9 March 2016 D is described as presenting with a “severe speech sound disorder”. The report went onto say that when assessing the child’s ability to produce all the sounds in spoken language “D was observed to be difficult to understand during spontaneous speech” though her imitation of words was clearer. Under cross examination the mother said she did not agree with the speech pathologist’s assessment that D’s speech difficulties were this severe.
Although the father has not filed any affidavit in the proceedings it is well documented (in the expert’s report and documents produced on subpoena) that the father has adamantly denied all allegations of sexual abuse against him at all times and has been distressed and offended at the mother’s pursuit of this issue.
Discussion
In M v M[9] the High Court said when discussing allegations of sexual abuse at [23] – [25]:
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless….
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access….
In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
[9] (1988) 166 CLR 69; [1988] HCA 68.
The High Court also said at [18]:
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.
In Johnson & Page[10] the Full Court agreed that reference to the Evidence Act1995 (Cth) rather than Briginshaw is the appropriate standard, particularly having regard to s 140(2)(c) of that Act.
[10] [2007] FamCA1235 at [72].
I also have regard to the authorities concerning the inter-relationship between being satisfied that alleged harmful acts occurred, and a finding of unacceptable risk. One of the cases reviewed in Johnson & Page (supra) at [65] is W & W (Abuse Allegations: Unacceptable Risk)[11], where the Full Court noted at [111]:
We accept as a matter of practice, a trial judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists.
[11] (2005) FLC 93–235.
The only probative evidence that the father sexually abused the child is the child’s complaints about his conduct which is said to have been heard by the mother and the mother’s older daughter Ms H. The child made no disclosure of sexual abuse to JIRT when interviewed on either occasion and there is no other evidence such as from a medical practitioner that the sexual abuse occurred. For this reason an assessment of the accuracy and honesty of the mother’s evidence is critical.
In assessing the mother’s evidence I have a number of significant concerns. First, it is not clear whether the mother contends that the words set out in her affidavit as spoken by the child on the evening of 24 October 2014 is a verbatim account. The mother gave contradictory evidence as to this matter. She conceded under cross examination at one point that the words attributed to D in her affidavit were possibly wrong but when asked about her handwritten notes made later that night and which are identical to the words in her affidavit, she said that she wrote down the exact words spoken by the child. According to the notes of the counsellor Ms I the mother told Ms I that she wrote down the child’s account “word for word”. However, Ms I has recorded the mother reporting to her much more conversation than is recorded in the mother’s affidavit or her notes. The additional matters recorded by Ms I include the following:
[M] [the mother] asked “why? Were you a naughty girl?” (past D.V.)
[D] “daddy was holding my arm down in his bedroom”
[M] “where were you?”
[D] “on his bed” “daddy put a bandaid on his wee wee. Why would daddy do that?”
[M] “where was your other hand?”
[D] “on his wee wee”
[M] “a bandaid doesn’t go on a wee wee”
The second issue of significance is that real questions arise about the child’s capacity to have spoken the words attributed to her due to the well documented history about the child’s language capacity and speech difficulties.
Despite the mother’s disagreement with the speech pathologist’s assessment concerning the severity of the child’s language difficulties I accept the opinion of the speech pathologist contained in the assessment report in March 2016 (written almost one and a half years after the alleged disclosure) that the child then presented with a severe speech sound disorder. I also note that the assessment indicates that the mother at this stage told the speech pathologist that the child’s speech had improved as a result of the therapy she had received. I also note that the expert in his updated Family Report in December 2016 observed at that stage that the child displayed “some expressive language difficulty and at times her speech was not comprehensible”. The JIRT investigators also observed that the child had limited language skills and of particular significance the child did not demonstrate that “wee wee” was a word used by her to describe either male or female genitals.
In my view, some particular words which the mother attributes to D are also highly unlikely to have been said by the child. The mother was firm in her evidence that when she told the child on the evening of the disclosure that the following day they would need to attend a doctor the child said “yes mummy but no police”. The expert who is a forensic psychologist was not challenged about his opinion in the first family report that:
…it is improbable that a child of barely 3 years of age would have the intellectual grasp to conclude from what had been said that the mother may have been suggesting that the police should be involved in this discussion.
The expert went on to say:
Although it cannot be conclusively stated that [D] could not possibly make such a statement expressing reluctance to talk to police, it is my opinion that such a comment is highly implausible in the context of the reported discussion. The attributing of such a comment to [D] is in my opinion not consistent with the cognitive capacity of a 3 year old child whose ability to reason in relation to future events is very limited, particularly events that are novel and of which the child has no previous experience.
I accept the opinion of the expert as to this matter. It is also of significance, in my view, that these words are not contained in the notes which the mother says that she wrote later on the evening of 24 October. This conversation also does not appear to be recorded in the additional loose notes made by the mother, photocopies of which are attached to the mother’s affidavit, and in any event the mother says that these additional notes were made some days after.
I do not accept that the child said the words “yes mummy but no police” at all and infer that the mother included them in her affidavit in an attempt to suggest that the child’s failure to make any disclosure when interviewed by JIRT was due to a reluctance by the child to engage with police. I draw an adverse inference concerning the mother’s credit which affects the credibility of all of her evidence concerning the sexual abuse allegations. I similarly make an adverse credit finding against the mother in relation to her deposing that D nodded her head [to confirm agreement] when her sister Ms H reported to the mother that D had said to her “is daddy going to get me? He hurts my wee wee”. Under cross examination the mother conceded that she had not seen the child nod her head.
Another concerning feature of the mother’s account of her conversation with the child is that the mother asked leading questions. In particular, the mother herself introduced the idea that the reason the child’s genitals may be sore was because someone had touched her there and that the mother made this conclusion prior to inspecting the area. The mother also agreed that she had clearly made up her mind that the father had sexually abused the child as soon as the child made her disclosures. For the foregoing reasons I am not satisfied that D said the words attributed to her in conversation with the mother on 24 October 2014.
In my view, the hospital records also give some weight to the unreliability of the mother’s evidence concerning the circumstances of the child’s complaint. The mother says that the disclosure was initially prompted by her touching D on the inside of her right arm at the elbow which caused the child to complain that it had been hurt and that the mother observed a finger mark bruise in that location. The following day the child was examined at the Children’s Hospital. According to the assessment report from the Child Protection Unit when the child was asked whether she was sore anywhere she looked at her mother who was encouraging her to show the doctors. The child then pointed to the same region where the mother says she observed a bruise the previous day but no bruising was seen by the examining doctors in this region or on any of the child’s limbs.
The only other evidence which may support the allegation of sexual abuse comes from the affidavit of the mother’s elder daughter Ms H who was not cross examined. Ms H deposes to D saying in the lounge room at the mother’s home on 25 October 2014 “daddy hurt me. Daddy touched my wee wee”. The mother does not refer to this conversation in her affidavit and Ms H makes no reference to the conversation in the car when attending the hospital in which she informed the mother in D’s presence that the father “hurts my wee wee” as deposed to by the mother. Due to these inconsistencies and as Ms H’s evidence was not tested by cross-examination I attach little weight to it.
I also attach no weight to the mother’s evidence that when she was taking D to the JIRT office C reported to her that the father now locks the bedroom door and showers D in his ensuite. The mother on her own evidence at this stage was convinced that the father had sexually assaulted D and was confrontational with the JIRT officers when the child did not make a disclosure. It is, in my view, likely that C who was only 12 at the time may have said something concerning about the father on the expectation that her mother wished to hear it. Alternatively the words attributed to C may not have been said at all and are also an attempt by the mother to bolster her allegation. In my view, the words if spoken are highly unreliable as evidence of the matters alleged.
Having regard to all of the foregoing I am not satisfied that the father sexually abused D in about October 2014 as alleged by the mother.
Although I am not satisfied that the sexual abuse did occur that is not the end of the matter as the question is whether there is an unacceptable risk of such abuse occurring in the future if the father spends time with the children. It is beyond dispute that the nature of sexual abuse of a child is such that the magnitude of harm would be great if such acts were to occur. However, in the absence of any evidence other than the mother’s account of the child’s disclosure which, for the reasons I have given, is highly unreliable and in circumstances where the mother’s credit is so adversely affected, I am of the view, that there is not an unacceptable risk of sexual abuse posed by the father.
Is the father a perpetrator of family violence?
In setting out a history of the relationship in her affidavit the mother makes a broad allegation that throughout “almost all” of the relationship the father was physically and verbally abusive to her. She also makes a particular allegation that the father physically assaulted C on one occasion. Although the father, as I understand it, takes issue with these allegations he did not contradict them by adducing evidence of his account of the relationship or particular incidents of violence alleged by the mother. As the father’s alleged violent conduct towards the mother to which the children were and continued to be exposed and the alleged physical assault of C form the basis of the mother’s contention that the father poses an unacceptable risk of harm to the children, this issue must be resolved.
The principles encapsulating “unacceptable risk” and the standard of proof in M v M[12] and Johnson & Page[13] referred to earlier, have been extended to other forms of abuse[14] and will be applied when determining the allegations of physical abuse in this matter.
[12] (1988) 166 CLR 69; [1988] HCA 68.
[13] [2007] FamCA 1235 at [72].
[14] See e.g. Orwell & Watson [2008] FamCAFC 62 (psychological abuse); Ruth & Hutton [2011] FamCAFC 99 (emotional abuse); Oscar & Delaware; Oscar & Austen [2014] FamCAFC 32 (physical and sexual abuse).
The first specific incidence of physical violence deposed to in the mother’s affidavit allegedly occurred in July 2012. The mother says on this occasion that the father dragged her by the arm out of the car, then dragged her across the driveway and pushed her to the ground. Police attended and records indicate that they observed that the mother had bleeding from her nose and mouth and scratches to her foot. The father was charged with assault and a provisional ADVO was obtained by police for the protection of the mother and children which later was made in similar terms by a Local Court on an interim basis. Court records indicate that no evidence was offered when this charge was listed for hearing some months later.
Shortly after the ADVO was made the mother says that the father came to the house and smashed her mobile phone and coffee machine and as she believed this was a breach of the ADVO the mother contacted police. Police and court records indicate that this complaint by the mother against the father was made on 12 September 2012.
The mother said that soon after the incident on 29 July 2012 she and the father “got back together”. She says she felt responsible for what had happened and at the suggestion of the father wrote to police informing them that she made a false allegation against the father.
Police records indicate that on 8 October 2012 police received a letter from the mother stating that the allegations made on 12 September were false. She said that she started the argument on that occasion and assaulted the father by punching him in the eye and that she broke her own mobile phone when she threw it at the father as he left.
The mother alleges that in about October 2012 the father “tried to” choke her. She said that the father verbally abused her including calling her a “fucking black cunt”, came towards her, pulled her hair causing her to fall to the ground and put his hands around her neck and squeezed. The mother said she could not breathe and thought the father was going to kill her and kicked him in the groin which caused him to let go. The mother said her nose was bleeding as a result and she also had bruising under both eyes. The mother did not report this incident to police and does not say that she sought medical attention.
The mother alleges in her affidavit that on numerous occasions the father threw her out of the car on the way to work or to C’s school and would often rip her hair or slap her in the head. She said that on one occasion, the date of which is not specified, the father verbally abused her at the school and was asked by the principal to leave.
The mother also outlines an incident in early 2013 when she alleges the father hit her in the face with her handbag. She says that as there was a bottle of perfume in the bag which hit her across the left cheekbone causing a large bruise under her eye and a lump on the side of her face. The mother does not say that she reported this complaint to the police and there is no record of it in the documents produced on subpoena.
The mother alleges that in July 2013 the father locked her out of the house which she says he did on numerous occasions as a form of punishment. On the occasion in July 2013 the mother says the father woke her at 3 am, dragged her out the back door by pulling her hair and locked her outside. The mother also says that the father assaulted her “on numerous other occasions during this time” and that they separated “around this time”. There is no record of the mother complaining to police about this incident or any other alleged assaults at about this time. However, a record of a medical practitioner indicates that the mother did attend upon a doctor on 1 August 2013 with the reason for visit specified as “domestic violence victim” and said her most recent head injury was on 29 July 2013.
Under cross examination the mother agreed that all of these allegations of physical violence occurred prior to the first parenting proceedings which resulted in the parties consenting to a shared care arrangement for the children. She said under cross examination that she made those consent orders willingly and that the father had proved he was a good father. She also agreed that the family violence which she alleges was perpetrated by the father against herself was not sufficient to seek an order that the father spend no time with the children and that her change in position and belief that the father posed an unacceptable risk of harm to the children was based upon the allegations of sexual abuse.
When cross examined about the specific incidents the mother agreed that she was hurt “pretty badly” in the incident when the father choked her but did not see a doctor. She maintained that when she was hit on the face with her handbag she was concerned that she had a fractured cheekbone but did not visit a doctor. Neither of these incidents were reported to police.
When cross examined generally about verbal arguments, which at times descended into physical altercations, the mother agreed that she probably did instigate those arguments but maintained she was never the first person to hit the other. She agreed that she did also hit out at him though she maintained on all occasions this was in self-defence. She agreed that on one occasion she caused a bruise to the father.
It is the mother’s case that the father continued to act in a violent and controlling manner towards her after the parties separated and also that he physically abused C on one occasion in particular.
The mother contends that for a few weeks after separation in July 2013 the father continued to play a role in caring for D three days a week and collecting C from school and that the children spent some overnight time in his care. She says the arrangements came to an end on about 25 July 2013 following a violent incident. According to the mother the father retained the children in his care for about four days at this time. She says that when she visited the children at the father’s home while she was hugging the children the father threw a glass at her which hit her in the forehead and then landed on the grass without breaking. The mother said she put D down and told C to take her inside the father’s home as she was “scared and worried that things would escalate” when she left the father’s home. The mother says she received a bruise on her forehead but did not seek medical attention.
The mother subsequently contacted police who obtained a provisional ADVO for the protection of her and the children. The father was charged with assault as a result of this incident. The mother says that although the charges were dismissed a final ADVO was made on 16 October 2013 for a period of 12 months. The father’s criminal history reveals that a charge of common assault was withdrawn and there is no evidence of the terms of any final ADVO that may have been made.
The father initiated parenting proceedings in the Federal Circuit Court in August 2013 and from 4 September 2013 the parties entered into a shared care arrangement, firstly on an interim basis and from 18 December 2013 on a final basis. The mother says that from December 2013 with the ADVO and Family Law orders in place there was initially a significant improvement in the father’s behaviour. She also reiterates in her affidavit that the father had not been directly physically abusive towards either of the children to her knowledge up until this time.
The mother says that she and the father remained living in separate houses but began a sexual relationship again from about the beginning of 2014.
The mother deposes that the next incident of concern occurred on 1 June 2014 when throughout the afternoon and evening the father sent threatening and abusive text messages to her. The mother annexes copies of some of the messages which she says caused her to feel “scared for her safety”. The mother says she received further messages the following day that suggest the father was alleging that the mother’s actions may cause him to take his own life.
The mother says she contacted police on the morning of 2 June 2014 and the text messages continued to be sent while the police officers attended. The mother says that she suggested to police that the messages may be in breach of the ADVO “but the police did not seem concerned about that” and the main concern of police appears to be that the father was threatening suicide. Police records indicate that on this date the father was in a mental health facility which he had voluntarily attended and is described as a “patient” by police. There is no reference to a current AVO or suggestion of a breach of AVO in the relevant police record.
Under cross examination the mother was unable to explain why some of the abusive text messages she says she received in June 2014 are not included in the annexure to her affidavit. She agreed that she made a screenshot of some messages and not others and sent them to her lawyer. She also said that she deleted messages after making a screenshot and sending them to her lawyer.
The mother says that at the end of July or beginning of August 2014 the father withheld D and she went to his home in an effort to have D returned. The mother said that when she and the father were in the driveway the father came towards her, smacked her cigarette out of her hand, grabbed her hair and “tried to drag her up the driveway”. She says she left the father’s home as he refused to return D.
On 1 August 2014 the mother’s solicitor wrote to the father’s solicitor alleging that the father was withholding D in breach of the parenting orders. Although the mother’s solicitor raises a number of concerns about the father’s behaviour, the altercation in the driveway is not set out in that letter. The mother says that when the child was returned to her later on 1 August 2014 the father threatened to break her legs in the presence of the child.
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
In Goode & Goode[21] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[21] (2006) FLC 93-286.
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, 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. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
In this case I have found that the father has engaged in family violence so the presumption does not apply. There is no evidence to suggest that the parties have any capacity to make decisions jointly in relation to any issues relating to the children. The father can also be taken to agree to the ICL’s proposal that the mother have sole parental responsibility for the children to which the mother has agreed. In these circumstances I propose making such an order as it is the least detrimental order for these children.
Given that I have decided that the mother is to have sole parental responsibility for the children, I need not turn to s 65DAA of the Act.
Conclusion
Having regard to all of the factors in relation to the best interests of the children I make orders as proposed by the ICL. As discussed the father has only minimally engaged in the proceedings and did not ultimately propose any orders with respect to future parenting but only opposed the order that there be no contact between him and the children.
In determining appropriate orders, I place particular weight on the need to protect the children from emotional harm associated with exposure to intense and toxic parental conflict. For the reasons given I am of the view that there is no benefit to the children having a meaningful relationship with their father and it is not in the children’s interest to foster such a relationship.
I express particular concern as did the expert that C will continue to seek out her father and spend time with him and this may even be facilitated by the mother. For this reason and as there are concerns as identified about the mother’s capacity to meet the needs of the children I invited the Department of Family and Community Services to intervene in the proceedings. The only orders under consideration involve the children living with the mother. Unfortunately, the Department declined to intervene in the proceedings.
In these circumstances I must consider the only proposal before me on the basis of “least detriment” rather than “best interests”. I am satisfied for the reasons given that will be less detrimental for the orders to provide that there be no contact between the father and the children than for the orders to be silent as to the matter. It is hoped, though it is by no means certain that the orders will be complied with.
For these reasons I make the orders set out at the forefront of this judgment.
I certify that the preceding two hundred and eighty eight (288) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 7 April 2017.
Associate:
Date: 7 April 2017
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