THORNES & THORNES
[2016] FCCA 1877
•7 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| THORNES & THORNES | [2016] FCCA 1877 |
| Catchwords: FAMILY LAW – Parenting – where matter part heard – where serious concerns as to the ability of the mother to protect 7½ year old girl from harm – where there is extensive history of sexual and physical abuse allegations surrounding the mother and the other siblings and where the maternal grandfather is one of the alleged perpetrators – where the mother fails to recognise the full extent of abuse – where abuse allegations in respect to child have been raised against siblings and other family members – Held that pending the final hearing the child live with father and spend supervised time with mother. |
| Legislation: Family Law Act 1975, ss.60CC, 60CCA, Pt VII |
| Cases cited: Cowling & Cowling (1998) FLC 92-801 |
| Applicant: | MS THORNES |
| Respondent: | MR THORNES |
| File Number: | BRC 4211 of 2012 |
| Judgment of: | Judge L. Turner |
| Hearing date: | 26 May 2016 |
| Date of Last Submission: | 26 May 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 7 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Wright |
| Solicitors for the Applicant: | A P Hodgson & Associates |
| Counsel for the Respondent: | Mr Bunning |
| Solicitors for the Respondent: | Tubaro Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr Linklater-Steele |
| Solicitors for the Independent Children’s Lawyer: | Carroll Fairon Solicitors |
ORDERS UNTIL FURTHER ORDER
That all previous parenting Orders as to live with and spend time arrangements are hereby suspended.
That the child X born (omitted) 2008 live with the father.
That the father ensure the child remain at the same school and attend the same extra-curricular activities.
That the mother be permitted to attend the school activities that the mother currently attends to such as tuck shop and that the mother be permitted to attend all of the child’s extra-curricular activities.
That otherwise the mother spend supervised time with the child for two (2) hours a week each Saturday at (omitted) contact centre with the parties to forthwith take whatever steps are necessary to complete the intake with the costs of the centre to be borne equally between the parties.
That pending availability at the (omitted) contact centre the mother is to spend time with the child for two (2) hours each week on a Saturday with the to be supervised at (omitted) with the parties to share equally in the costs.
That the child is not to be brought into contact with the maternal grandmother MRS L or the maternal grandfather MR L.
That the father shall forthwith attend upon his general practitioner for the purpose of obtaining a referral to a counsellor for the child under a mental health plan.
That upon obtaining the name of the counsellor pursuant to Order 8 the father shall provide the name of the counsellor to the mother and the Independent Children’s Lawyer.
That the child shall attend the counsellor for the duration and frequency as recommended by the counsellor and in that regard:
(a)both parties participation shall be as directed by the counsellor;
(b)the Independent Children’s Lawyer shall provide a briefing to the counsellor and any documents she deems necessary the counsellor read and have leave to do so pursuant to section 121 of the Family Law Act 1975.
That the mother have telephone contact with the child each Tuesday, Thursday and Sunday at 6:00pm with the mother to instigate the call.
That the final hearing of this matter be adjourned part heard before Judge L. Turner to 10:00am on 4 October 2016 in the Federal Circuit Court of Australia at Brisbane.
That any further material to be relied upon by the parties must be filed and served no later than 4:00pm on 13 September 2016.
IT IS NOTED that publication of this judgment under the pseudonym Thornes & Thornes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 4211 of 2012
| MS THORNES |
Applicant
And
| MR THORNES |
Respondent
REASONS FOR JUDGMENT
Ex Tempore
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read
Introduction
The parties are in dispute as to the future live with and spend time with arrangements for their 7½ year old daughter X.
The matter is part heard.
The mother has yet to complete her evidence.
The father has not commenced presenting his evidence.
The matter has already had the benefit of a number of hearing days with the hearing to continue in October 2016.
Issue
In the meantime, the issue has arisen as to whether X, who has always lived with the mother, is at risk, if X was to remain in the primary care of the mother pending the completion of the final hearing.
This is the issue which the court must determine on an interim basis.
Evidence
In determining this issue, regard has been had to:-
a)The material as marked on the court file including Notices of Risk;
b)All expert reports;
c)The exhibits;
d)The transcripts of the evidence to date;
e)Part VII of Family Law Act 1975;
f)Full Court decision of Goode & Goode (2006) FLC 93-286, which sets out the pathway to follow at interim hearings and cautions about making findings on undisputed facts; and
g)All other relevant authorities.
All parties are legally represented.
The court has the benefit of an independent children’s lawyer (ICL).
Cross-examination did not occur at the interim hearing which took place on 27 May 2016.
Findings of fact are made on the balance of probabilities having regard to the evidence and in what follows statements of fact constitute findings of fact.
The law
Before considering the issue it is necessary to look to the law.
The principles governing the determination of competing parenting applications are set out in Part VII Family Law Act 1975.
In essence, when making a parenting order the court must consider what is in the best interests of the child pursuant to section 60CCA.
As discussed by the Full Court in Moose & Moose [2008] FamCAFC 108 at [66], the role of the judicial officer making orders which are in the best interests of the child is to determine the best interests having regard to:-
“the matters set out in section 60CC(2) and (3), guided in consideration of the provisions by the objects set out in section 60B(1) and the principles underpinning it contained in section 60B(2).”
As to the primary considerations in the leading authority of Mazorski & Albright (2008) 37 FamLR, Brown J refers to such considerations as the “twin pillars”, where:-
a)The first pillar is the importance of the child having a meaningful relationship with both parents, and
b)The second pillar is the need to protect children from physical and emotional harm.
In this matter, it is the second pillar that is contained in section 60CC(2)(b), namely, the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, which carries the greatest weight in accordance with section 60CC(2)(a).
But how to determine the risk at an interim hearing where facts are contested and evidence has yet to be tested is not an easy task, especially when the outcome may result in a change of live with arrangements for the child, which may only be effective on a temporary basis, depending on the outcome of the final hearing.
In Cowling & Cowling (1998) FLC 92-801 (which the Full Court in Deiter & Deiter (2011) FamCAFC 82 noted at [62] was “referred with some approval to” by the Full Court in Goode & Goode) the following statement was made at [18]:-
“The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter. Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily at interim hearings, the court should not be drawn to issues of fact or matters relating to the merits of the substantive cases of each of the parties.”
This was reiterated at [68] by the Full Court in Goode & Goode:-
“The procedure for making interim parenting orders will continue to be an abridged process, where the scope of the inquiry is ‘significantly curtailed’, where the court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case, where findings are not possible.
The court also looks to the less contentious matters, such as the agreed issues not in dispute, and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.”
But not every matter falls within the “ordinary” category.
As observed by the Full Court in Cowling & Cowling at [18], “in some cases it may also be necessary to consider child protection issues”.
The Full Court in Deiter & Deiter at [61] recognises that in matters where risk is a significant issue, that at times, a decision needs to be made to protect a child at an interim basis, even where all the evidence is not before the court.
At [61] the Full Court comments:-
“The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessments comprise two elements. The first requires prediction of the likelihood of the occurrence of harmful events and the second requires consideration of the severity of the impact caused by these events.
In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested and the last submission is made. We accept, however, that it is always a question of degree, depending on the evidence that is before the court.”
In George & George [2013] FamCAFC 182, where the trial judge at first instance did, on an interim basis, take into account the risk to the children in determining and changing arrangements for the children pending final hearing, the Full Court noted at [25] that an opportunity existed for a party to bring additional evidence to the court at the final hearing as to the impact of the interim orders on the child.
It is in the context of the law that I now turn to the issue in this matter.
Proposals
The father is concerned that if the child remains living primarily with the mother pending final determination, that X is at risk of physical, sexual and emotional harm and although that harm will not directly be at the hands of the mother it may be due to the mother’s inability to act protectively towards the child to protect her from such risk of harm.
The mother is of the view that the mother is capable of being protective towards X and therefore the long term arrangements where X live with the mother and spend significant time with the father needs to be reinstated (X was temporarily placed with the father pending interim judgment).
History of abuse surrounding the mother and her extended family
To understand the complexity of the issues before the court, it is necessary to capture, as clearly as possible, the concerns as to the abuse which surround the mother and her extended family.
This is not going to be a pleasant journey and at times contains some speculation, conjecture and allegations but it is only once this journey is completed that the issue of possible risk to X and whether there is the need to protect X from that risk whilst in the mother’s care can be assessed.
The most comprehensive way of approaching this complex journey is to look at each of the persons involved.
Mr L
Mr L is the child’s maternal grandfather, the mother’s adoptive father and the husband to Mrs L, the maternal grandmother.
Mr L is 65 years old, a self-made multi-millionaire through his investments and has long retired from his previous employment as a (occupation omitted).
Mr L suffers depression and relies heavily on his wife to shield and protect him from things that may “trigger” his depression.
Mr L has a history of attending strip clubs, watching pornography and cross-dressing.
Mr L has a history of heavy drinking.
His sexual practices and misuse of alcohol have resulted in many altercations with the police, whereby:-
a)Mr L was charged and convicted after being caught urinating after changing into women’s clothes in someone’s bathroom at a set of flats.
b)Mr L was charged and convicted of public nuisance when he was caught in a shopping centre taking photographs of females without their permission. This resulted in police attending Mr L’s house and seizing material from his computer.
c)Mr L was charged and convicted of driving offences after hitting a tree when coming off the (omitted) Bridge. Mr L had alcohol in his system at the time of the accident.
d)Mr L recently spent a night in the watch-house after abusing police after a visit to a strip club.
Mrs L has never attended court with Mr L on any of these incidents and has limited knowledge and understanding of the criminal nature of the charges against Mr L.
Both Mr and Mrs L in their evidence significantly downplayed Mr L’s involvement with strip clubs and his misuse of alcohol.
The evidence supports that Mr L is the head of the household, is responsible for monetary decisions and is prone to having a bad temper.
Mr L has been accused of physically and sexually abusing the mother, physically hitting the mother’s child, W, verbally abusing W, Y and Z and playing sexually inappropriate games with the child X.
Mr L continued for some years to facilitate a relationship with his old friend, Mr S, a convicted paedophile, who had sexually abused the mother and her sister Ms K and who had attempted to sexually abuse the mother’s child, Z when Z was living with the L’s.
Mr L’s level of support to his family, as illustrated by the evidence, is limited to providing for them materially, such as paying for his grandchildren’s education and providing housing for his children at reduced rent.
His support, however, does not extend to emotional or psychological support, where Mr L leaves such things as alleged sexual abuse towards his children or grandchildren to his wife to deal with, as it is “women’s business”.
Mr L explained in cross-examination that it was his role to make decisions and that is what Mrs L wants and denies that Mrs L is afraid of him.
Interim consent orders made prior to the final hearing provided that Mr L’s time with X be supervised, although the mother and Mrs L did not inform Mr L about this restriction, preferring instead just to keep an eye on X when around her grandfather and making sure that the child was never left alone with Mr L.
Mr L admitted in cross-examination that this was not effective 100% of the time and at times he was left alone with the X.
Mr L has been of little support to the mother during the court proceedings, which have been ongoing since 2012 and has not financially assisted the mother, notwithstanding that Mr L and his wife are worth $6 million; resulting in the mother being dependent on Legal Aid funding.
Mr L has not prepared an affidavit and only attended the court proceedings after the insistence of the court.
Mrs L
Mrs L is 64 years of age and is a housewife, although in her youth she worked in (employment omitted).
The mother is Mrs L’s biological daughter, born out of a failed relationship.
Mrs L met Mr L when the mother was a very young child and Mr L subsequently adopted the mother when Mr and Mrs L married in 1976.
Mr and Mrs L have three other children, Ms K aged 38, Mr I aged 36 and Ms C, aged 29.
Mr and Mrs L have 10 grandchildren, with another grandchild due in July.
The evidence supports that the role of Mrs L in the marriage has been a very traditional one, where Mrs L looked after the children, looks after the grandchildren, looks after the house and keeps the peace whilst Mr L looks after stock, shares and investments and controls the finances.
The evidence also supports that Mrs L is only told limited information by Mr L with Mrs L not being fully aware of the extent of Mr L and his financial wealth and Mrs L not being made fully aware of the extent of Mr L’s involvement in strip clubs or his brushes with the law.
The following exchange in cross-examination illustrates this point:
Q: You don’t know what he does or where he goes?
A: Not when he goes to town. No.
Q: No?
A: Not much.
Q: Because he doesn’t tell you, because you’re not entitled to know. That’s his view, isn’t it? You’re not entitled to know?
A: Probably.
Q: And you don’t want to enter into any conflict with him, do you, which is why you refrain from asking any questions? You don’t want to have conflict with your husband?
A: No.
The evidence also supports that Mrs L has been selective in what she told Mr L and was very protective of him so as not to trigger his depression or anger.
Mr L, in cross-examination, spoke of not being informed of any detail as to the alleged abuses against the child by the paedophile Mr S and says with Mrs L “that I was sheltered” and how his wife was “just trying to protect me” as it “unduly affects me.”
Mr L confirmed that “the ups and downs in the stock market” do not affect him but that “family matters do depress me”.
Mr L explained in cross-examination that “my wife protects me, and she thinks because of my medical record, that I need protection. So there are things that happen, and then…I’m not told about it.”
When questioned why Mr L did not get involved when members of his family were being abused, Mr L responded, “I didn’t get involved because people didn’t want me involved. I think they might have thought I…would get aggressive or something”.
Mrs L then took it upon herself to deal with any allegations of abuse raised by her children, with Mr L accepting that this was solely her role.
It was a role, however, as supported by the evidence, which was not fully embraced by Mrs L.
Mrs L is not aware of the extent of or detail of the alleged abuses perpetrated against her children or her grandchildren.
Mrs L has not gone out of her way to discuss the issues with the victims or to find out any details.
When Mr S was charged with offences relating to other children and it emerged that the mother and her sibling, Ms K, had been subjected to sexual abuse, Mrs L left it to Mr S’s wife to organise police interviews.
Mrs L did not attend at the trial of Mr S.
Mrs L allowed Mr S back into the household after he was released from jail, despite having her daughter, Ms C at home and Z, her granddaughter, temporarily staying with her and Mr L.
In cross-examination Mrs L appeared to be disinterested and doubting of the sexual abuse allegations involving the children and grandchildren which were put to her.
Mrs L does not appear to have been protective of the mother during her years of abuse by Mr S or of Z during her numerous abuses by the next-door neighbour Mr P when Z, her siblings and the mother were living with the maternal grandparents.
Mrs L did not appreciate the potential upset that may have been caused to the mother by allowing Mr S to deliver a mattress to the mother’s home.
Mrs L’s general attitude to sexual abuse is best summed up in the following exchange in cross-examination:-
Q: Have you ever asked either V or Y whether any other person has touched them or interfered with them?
A: No…why would I ask that?
Q: Why not?
A: Because they were – would have said something.
Q: Why? Z didn’t. 12 times she was up there, potentially. Maybe even more. She never said anything?
A: Yes, but why would they tell me?
Q: Maybe because they hoped you might care and love them enough to do something about protecting them?
A: They would tell Ms Thornes.
Q: You were there?
A: But they – but it never happened, anyway.
Q: It never – how do you know it never happened if you never asked?
A: Well, I will ask them when I leave the courtroom.
Q: You will. Finally, after all these years?
A: But they would have said something.
Q: Why do you believe that?
A: Because that’s what they do.
Q: Z didn’t. She was subject to horrendous abuse. She never said anything?
A: Then why did she keep on going back?
Further, Mrs L has been accused of rough playing with the mother when the mother was a child but this is denied by Mrs L.
Mrs L denied that Mr L treated the mother badly.
Mrs L, although having attended almost all of the court events over the years with the mother, had little understanding of the issues and nature of the proceedings and has not provided any affidavit to support the mother in her case.
Mrs L gave evidence in court only after the request of the court to attend.
Mother
The mother is the biological child of Mrs L and the adopted daughter of Mr L.
The mother is in her early forties.
The mother has five children from different fathers:-
a)Z aged 24.
b)W aged 21.
c)Y aged 19.
d)V aged 11; and
e)X aged 7½ (the child who is the subject of these proceedings).
All five children have allegedly been either sexually or physically abused with allegations that that abuse has occurred between each other.
The mother has been the subject of two incidents of abuse, the first allegedly at the hands of Mr L and the second, at the hands of Mr L’s long-term friend and best man, Mr S.
In a form completed by the mother for counselling purposes in March 2011 (which the mother alleges she was forced to do by the father) the mother stated the following, which gives an insight into her childhood:-
a)“Mother, felt like she looked the other way a lot and stepfather always picked on with other children came along”.
b)In answer to the question, “Any special problems with your father?” the mother wrote “Lots - pushed aside, bullied, abused, all ways times three. My mother and her family have lots of family secrets. So does my father (step)”.
c)In answer to the question, “The most important values in my family were?” the mother wrote “No idea. For my parents, maybe money”.
d)The mother ticked the box that her father was strong and manipulative and wrote “He was cruel in all ways to me and did things no one should ever do”.
e)The mother ticked the boxes that her mother was “passive” and “manipulative”, (underlining and circling this word) and wrote “Never really helped me and standing up for me. I was the escape goat for my family”.
f)In answer to the question, “Was your father clearly the head of the home?” the mother answered “Yes”.
g)In answer to the question, “How did you father treat your mother?” the mother wrote, “Horrible.”
h)In answer to the question, “Was there ever an adulterous affair, to your knowledge with your parents or grandparents? Any incestuous relationships?” the mother wrote, “Yes.”
i)In answer to the question, “As a child, teenager or later in life did you ever suffer an injustice?” the mother wrote the following comments “Abuse, be touched….by stepfather, his best friend, ex-husband and husband and my first daughter’s father, stepfather and his best friend as a child. They touched me and rubbed themselves against me until they were hard, rubbing me in certain places, etc”.
The child protection history in regard to the mother notes a Substantiated Risk of Physical Harm by Mr L was recorded in 1988, where “concerns that Mr L punched Ms Thornes (15 at the time) in the arm and this sort of physical aggression occurs monthly. Also concerns that Mr L approaches Ms Thornes, fully clothed, and attempts to touch her intimately (no further information provided) Ms Thornes reported wanting the abuse to stop, but later appeared to change her story. The family reported verbal arguments and occasional physical altercations, with the most recent being that Mr L said that Ms Thornes and her mother “played roughly”. Assessing officers noted that it was likely physical harm and inappropriate sexual advances were occurring”.
The mother was vague and inconsistent during cross-examination as to abuse suffered by her from Mr L.
Initially, the mother denied the abuse, stating, “my father hasn’t touched me” and that the mother had never spoken to the Department of Child Safety (DOCS).
However, as cross-examination progressed, the mother let her guard down and explained how she felt that her mother turned a blind eye to Mr L when he was disciplining the mother and how the mother felt like “I was the black sheep of the family” and how the mother felt that she “didn’t get treated…the same as the other children” because she “was adopted”.
The mother finally admitted Mr L punched her when she was young, as “I had taken some money out of his wallet for a school thing I wanted to go to,” and that was why DOCS became involved in 1988.
The mother also commented on how Mr L had bought bras for her when she was a young teenager and she thought “it was a bit weird, and as a 15 year old it made her feel very uncomfortable”.
The mother had been a bit more forthright about the abuse to the family report writer, where it was noted that “Ms Thornes reported she had a ‘stern’ upbringing from her stepfather, Mr L, stating that he was ‘harsh on us at times’. She recalled having contact with Department of Child Safety, Disabilities and Community Services when she was fifteen or sixteen regarding physical abuse, but reported that her stepfather had never hurt her or her siblings” ([45] 2015 family report).
The father deposes to the mother informing him that “she was sexually abused by her stepfather…over many years when she was a child” ([27] father’s trial affidavit).
In a text message sent by the mother to the father in February 2013 the mother wrote in respect to her parents “I don’t ever want to be like them EVER”.
Mr and Mrs L were equally vague about the alleged abuse and the involvement of DOCS in regard to the mother.
Mr L does not recall the involvement of DOCS and denies ever punching the mother, as “you don’t punch women” but does recall “disciplining her for money disappearing out of the wallet”.
Mr L explained that the discipline was “I pulled her up” and “I don’t think if… if you grab someone you call it punching”.
Mr L denies any allegation of sexual abuse of the mother.
Mrs L did her best to downplay the involvement of DOCS, as illustrated by the following exchange in the adduced evidence from Mrs L:
Q: Are you aware of any other person who may have abused the mother in these proceedings?
A: No.
Q: Has the Department of Child Safety, Department of Communities been involved in your families?
A: I think they came around once or so.
Q: And when was that?
A: I have no idea.
Q: And what was that regarding?
A: I think they said Mr L had hit Ms Thornes or something or other. And then they only came to visit, stayed two minutes and left.
Q: So they came to visit for two minutes and they left?
A: Yes. They just said – asked me you can protect your daughter, and I said yes, and they said – turned to Ms Thornes and said, “see, your mother’s going to protect you”, and left.
Q: How old was Ms Thornes at this time?
A: I think she was about 14, 15.
Q: And were you aware of the incident where the father had hit Ms Thornes?
A: No.
As to the physical abuse, Mrs L said it didn’t occur because, “Well, I didn’t see it” although later, in response to the question put to her of “How were you going to protect her (referring to the mother) if you didn’t ask what had happened?” Mrs L replied, “Well, I was going to make sure he wasn’t - never there with her.”
In response to the question “Never being left alone again with the child?” Mrs L responded, “Yes”.
In his trial affidavit, the father deposes that Mrs L “failed to protect the mother” and “ignored what was going on” ([27] father’s trial affidavit).
The second incident of abuse was the mother being sexually abused over a number of years by Mr S.
Mr S and Mr L attended university together and developed a strong friendship.
Mr S was the best man at Mr and Mrs L’s wedding and later was living in close proximity to Mr L, together with Mr S’s wife and his children.
During the early teenage years, as young as 11, the mother and Ms K babysat Mr S’s children.
Some years later, after Mr S was charged with sexually abusing other children, it emerged that Mr S had sexually abused the mother and Ms K.
The mother informed the family report-writer that Mr S had “sexually abused her throughout her childhood” and “she disclosed this abuse to her aunt when she was 18 years old, after her aunt had asked her if she had been abused by Mr S” ([47] 2015 family report).
In cross-examination the mother explained that the sexual abuse by Mr S had taken place over a “couple of years” and that she had not confided in her parents because Mr S told her “no one would believe me”.
Mrs L found out about the use not from her daughters but from Mrs S, Mr S’s wife, after he was charged, although Mrs L could not remember the date she was told.
As to what Mrs L did with this information was explored in cross-examination:
Q: And can you recall what she said to you?
A: She said that Mr S was interfering with your girls and there was other children too.
Q: And when she said “your girls”, who did you take that to be?
A: Ms Thornes and Ms K. Ms C said he didn’t go near her.
Q: So what did you do about it?
A: Well…we hadn’t seen him for a while, and they hadn’t been around his place for years, so it must have been earlier on.
Q: But what did you do with that piece of information you received?
A: We took it to the courts. It went to the courts, but they didn’t use it, I don’t think.
It later emerged that it was Mrs S who organised the police interviews and went with the mother and Ms K to the police station.
Mrs L did not attend the trial and found out from Mrs S that Mr S had been convicted and jailed for what Mrs L understood was the sexual abuse of a four year old child.
When Mrs L was asked whether she has spoken to the girls about it she replied “Yes. I did ask them. They just said he – well, Ms K didn’t talk about it at all, and Ms Thornes just said ‘he would just sort of push her up against the wall and rub – rubbed his body against her’ and that was all. And that was all that she said”.
As to whether Mrs L told Mr L about Mr S’s sexual interference with the mother and Ms K is unclear from her responses in cross-examination.
When asked whether Mrs L told her husband, she responded “I think. I’m not quite sure”
Mr L in cross-examination stated that Mr S “played around with some of the kids. Again, I was sheltered from this, again, so the family, even my daughters and the others didn’t tell me a great deal…. So the only thing I did is ban him from our property. I said, mate, you’re not coming here. So this went on for about 10 – or at least decade, anyway”.
Mr L admitted in cross-examination that he had never spoken to the mother or Ms K about the abuse suffered by them from Mr S, regarding the topic as being “taboo”.
The mother provided a different version, stating in cross-examination that Mr L “did apologise to me” about the abuse by Mr S and “from what I remember, dad had gone out and come back, and he had had a few drinks and he said he wanted to talk to me, and he had apologised for – he believes that maybe he was a little bit harder on me than the other children, and apologised to me for what Mr S – had done to me.”
However, after the 10 years in or around 2004, Mr S became reacquainted with Mr L.
Mr L explained that “one day I met him again. He was asking me about the stock market”.
After that, Mr S started to go to Mr L’s house.
The frequency of his visits is unclear.
Mr L said “it wasn’t like every week. It was sort of irregular. We just had sessions about stocks and shares, and we might have had a couple of whiskeys while we were talking about it.”
Mrs L said that Mr S attended at the house “a few dozen times”, during which time Ms C was living there and at times Z was staying there with the L’s.
Mr L was cross-examined at length as to why he would allow Mr S, a convicted paedophile and a sexual abuser of two of his children back into his life to which Mr L made the following comments:-
a)“Mate, I’m Christian, so I’m forgiving”
b)“You forgive them for everything”
c)“I think I was trying to be humane because this guy was suicidal, and I already knew that”
d)“So I said this guy needs help, so I tried to look after him”
Mrs L was not happy about Mr S coming around but was not proactive in preventing it from occurring, explaining that she had told Mr L that “I was not impressed” and “I said that I was upset that he was coming around, and I didn’t particularly want him there” but that she did not prevent Mr S’s visits, saying you have to be “polite”.
Mr L explained that Mr S would come over often when Mrs L was out.
Mr L chose not to tell Ms K or the mother about the renewing of his friendship with Mr S.
Neither Mr nor Mrs L appeared to acknowledge and understand the impact that their reignited acquaintance with Mr S might have had on the mother or Ms K or Mrs L.
Mr L explained in cross-examination that “So I thought, you know, Ms Thornes is not living in the house, there’s no influence for her - for me to try and help someone else, help them out with their life. So I thought I was being humane”.
However, subsequently arrangements were made by the L’s, although the evidence is vague as to how it came about, for Mr S to deliver a mattress to the mother at her residence.
Mrs L did not see this as anything to be concerned about, as the mother needed a mattress and she was out when it was delivered and didn’t have any direct contact with Mr S.
The mother, however, tells a different story.
The mother said that the first she knew about it was when her mother told her that Mr S was on his way over with the mattress.
The mother explained that this upset her and when Mr S arrived, she kept the four children inside and the father helped Mr S with the mattress.
One has to question why Mr L, a multi-millionaire, couldn’t afford to supply the mother with a mattress and instead allowed the mother’s sexual abuser to take his mattress to the mother when the mother was at home with the four young children.
Z
Z is the oldest of the mother’s four children.
Z as a child and has, as a teenager, whilst in the care of the mother and during times when in the care of the maternal grandparents, been subjected to four instances of abuse, three of which were sexual in nature.
The first concerns Mr L.
As noted in the child protection history in the DOCS notes “as a parent between 2001 to 2009, two (2) notifications are recorded in relation to Z, W and Y, with a substantiated emotional and physical harm outcome in 2001 due to excessive physical discipline by Mr L and the mother’s failure to protect”.
It was further noted there were “concerns that the children are often physically abused by the maternal grandfather who is resides in the home and is said to be violent in nature”.
The mother informed the family report writer that the father had “got crabby with W”, but further adding “I don’t remember regarding the details of the incident” ([46] 2015 family report).
Mr L denied that he had physically abused the grandchildren, explaining in cross-examination that “I don’t know if you would say physically. I’ve raised my voice and I’ve laid down the rules and say, oh well, you’re going to do this in this house”.
Mr L cannot recall DOCS involvement.
Mrs L denies that Mr L has ever been physically abusive towards the children.
The second incident of abuse is Z, when living with the mother and her siblings at the L’s, being sexually abused by Mr L’s neighbour and the mother’s former employer, Mr P.
DOCS child protection history contains the following notes:-
a)That Z “disclosed that a neighbour known as Mr P who lives down the road from the mother’s home put his finger inside her vagina when visiting Mr P’s house…. Mr P sometimes kisses her on the boobs and the mouth. Mr P, when putting his finger inside her vagina wriggles his fingers up and down several times and that her vagina hurts after Mr P did this”.
b)That Z “told the mother what Mr P did and the mother did nothing and continued to allow the children to visit Mr P”.
The mother denies that Z told her about being abused by Mr P, stating in cross-examination that the first the mother knew about it was “when DOCS came to…see me. I didn’t know about it previously” and “I don’t even remember Z coming and talking to me about it”.
Z reported 12 occasions of sexual abuse and the mother only became aware of the nature of the allegations and the extent of the abuse when details were read to her from subpoenaed documents during her cross-examination, stating “No. I didn’t know”.
The lack of the mother’s knowledge was clear from the information provided by her to the family report writer that “this was not ongoing abuse and that it occurred on one occasion, with Z telling her father’s girlfriend at the time” ([48] 2015 family report).
The mother admits to not having spoken to Z about the incidents since.
Mrs L was aware that abuse had taken place, having been told of it by the mother but knew “not much” about it, stating in cross-examination that “Mr P out the back was supposed to do it. The police were called, and that’s all I know” stating “I never had much to do with him”.
Mrs L said that Z only told her that Mr P had “interfered with her”.
Mrs L explained that there were no signs of abuse when Z returned after visiting Mr P, and “how she just came back and started doing…what she would usually do…sit and read a book”.
Mrs L takes no responsibility for what happened to Z, laying that responsibility solely with the mother.
Mr L said that he wasn’t aware of details of this abuse, apart from Z being “interfered” with although he could recall that people spoke about Mr P, stating that “these things were kept away from me… I wasn’t told because the…daughters – it was considered a woman’s thing”.
All Mr L could recall was “that this guy who was a (occupation omitted) was not to be trusted… been mischievous…I wasn’t given details”.
When Mr L was asked whether it was “significant” that Z had been digitally raped by the man who lived over the back, he replied “well - I try to go forwards in my life rather than backwards”.
Z did not receive any specific therapy or counselling for the sexual abuse incidents.
The mother told the family report writer that “At the time Z did not want counselling and she was making threats to kill herself” ([48] 2015 family report).
The third incident of sexual abuse concerns Mr M who (from the limited evidence on this issue) appears to be the biological father of W and Y, two of the mother’s children and Z’s siblings.
The DOCS notes record that “In 2005 a CCR recorded Z’s disclosures that her stepfather, Mr M, had ‘pashed’ her by putting his tongue in her mouth, and rubbed his thighs against her vagina”.
Again, the mother was not fully aware of the abuse, stating that to her knowledge Mr M “had tried to kiss her and touch her, or something”.
When the mother was informed from the subpoena records of the full detail, the mother responded “I didn’t know it was to that extent”.
The mother had taken Z to the police station, although it appears as though nothing has eventuated.
Despite this incident, the mother has remained in a friendship with Mr M, having him over to her home when the children have been there and as recently as a few weeks prior to the trial commencing.
Mrs L’s knowledge of this incident was also limited, stating that all she knew was “only that he tried to kiss her”.
The last incident was when Mr S, the paedophile who had sexually abused the mother, tried to engage Z in sexual activity.
At or around the age of 16, Z was temporarily living with the L’s and round this time, Mr S was frequenting the house.
Z deposes that “When I was girl, Mr S, a then acquaintance of my grandparents, attempted to start a sexual relationship with me. When my grandfather found out, he was angry with Mr S and he started a big fight with him” ([9] Z’s 2014 affidavit).
Initially, the first the mother said that she knew about it was during the cross-examination at the hearing, despite the contents of Z’s affidavit which was filed by the mother in mid-2014; an affidavit which obviously wasn’t discussed in detail with the mother by her legal representatives or an affidavit that was read by the mother until just before the final hearing.
The mother then recalled that there may have been some conversation about it with Z, although the content could not be recalled, or the date.
Then the mother made the comment “She didn’t want to talk to me about it because of what he had done to me, and I understand that.”
The mother said that it was Mrs L who told her about the argument between Mr L and Mr S but did not do so until after Mr S had committed suicide.
Mrs L’s evidence on this incident was confusing, as illustrated by the following exchange in cross-examination.
Q: Has your husband ever told you of any period when Mr S has been present, Z has been present?
A: No.
Q: Has Z ever discussed with you –
A: Z said once that Mr S said something to her and my husband flew off the handle at him.
Q: Flew off the handle at him.
A: Mmm.
Q: What was it that he was supposed to have said?
A: I have no idea.
Q: You didn’t ask.
A: Yes, I was told, but I can’t remember.
Q: Think and please tell me.
A: I cannot.
Q: Take as long as you need.
A: Well, we will be sitting here a long time because I can’t remember.
When Mrs L was read out the contents of Z’s affidavit, she responded “Well, she never told me that”.
When Mrs L was asked “what responsibility do you take for that potential for your granddaughter to be sexually abused by a paedophile?” Mrs L responded “She wasn’t sexually abused. She was a – he – he made advances to her.”
Mr L denied knowing anything at all about the incident and said “Well, if it’s true, I don’t remember.”
When Mr L was asked “Are you minimising what your daughter says here? Are you minimising that your daughter is telling the Court that this man tried to start a relationship with her? Are you going to minimise that to the Court by saying, well, maybe it was just a hug?” He replied “Well, I – yes, I – I – I got to say yes, I guess.”
When Mr L was asked “If what Z says is correct and Mr S tried to commence a sexual relationship with her when she was a girl, you would have to – you would have to take full responsibility for any risk she was at as a result of that. Do you agree with that?” Mr L responded “No. I say, because I don’t remember the event, if I – it couldn’t have been – it couldn’t have been too big and maybe it was insignificant”.
Later in his evidence, Mr L conceded that he may have seen Mr S put his arm around Z but that “I think I told him off”.
As to getting into a fight with Mr S, Mr L denied getting into a physical fight, saying “We might have had a few – had a verbal fight – I think a big verbal fight. We never got into a fistfight”.
When asked whether he could have handled it differently and not had seen Mr S, Mr L responded “Well, I guess I should have been a little bit quicker on the ball” but denied feeling ashamed about the situation.
When Mr L was asked whether he offered Z any counselling after this incident, Mr L responded “I don’t think she was that severely affected”.
But the evidence supports that, after these several incidents of abuse, Z has been severely affected.
Z has attempted suicide and has struggled in her own relationships.
Z and her brother W have been involved in a series of disputes which have resulted in physical altercations and the exchange of serious threats and the taking out of DVOs against each other.
The mother knew little about these disputes between Z and W.
Mrs L downplayed the dispute, blaming it on Z’s ex-boyfriend and in answer to the question “but that’s conflict, isn’t it?” responded “Well, I suppose so”.
Further Z herself has been a victim of domestic violence in her own relationships.
W
W is the mother’s second eldest child.
W has also been involved in several incidents of abuse.
The first is the physical abuse allegedly perpetrated against Z, W and Y by Mr L when they were young children living with the mother at the L’s house.
The DOCS records note that, in 2004, there was a substantiated notification of risk of harm for Y and W in respect of Mr L.
The second incident is that it is alleged that Mr P, the man who lived down the back, not only sexually abused Z but W and Y as well.
Z informed DOCS that Mr P had touched W and Y on their willies.
The mother has no recollection of anything being said to her about the abuse of W and Y, stating in cross-examination that “I have no knowledge of that at all”.
Mrs L, when asked “Do you understand that these – that there were also an allegation at the time that W and Y were also subjected to abuse from this man?” responded “I have never heard of that one”.
The third incident occurred when W was at high school.
DOCS records note that “there were two general inquiries in 2008 regarding W allegedly being in a homosexual relationship with a student four years older than him”.
The mother, during cross-examination, advised the Court that she had not been made aware of this until sometime later when Z had told her “that there was a rumour going around the school that the person had gotten W into the toilet and had tried something with him”.
The mother cannot recall when the incident took place.
The mother said that she spoke to W that “he denied it. He denied it for a while” and “then he said that something had happened, but he didn’t want me to take it any further” and “he wanted me to leave it alone”.
The mother stated that she did not report the matter to the police and says that she spoke to the school but never followed it up with the school.
As to counselling, the mother thinks that W may have attended the chaplain at the school.
Mrs L had no knowledge of this incident.
In his adulthood, W was punched by Mr L whilst attending a buck’s night with Mr L.
In May 2013, the mother sent the father a text message, which read “Dad snapped and took it out on W in front of A’s friends. W didn’t do anything. A stripper turned dad down. Dad started calling W names and dirty punches from behind”.
The mother said she did not raise this with Mr L, but did speak to Mrs L about it.
Mrs L, in cross-examination, said that W had told her that “granddad hit him... He hit him in the back, while punched, hit him”.
Mr L presented a more watered down series of events, firstly denying that he hit W, then admitting that it was a “clout….. give someone a nudge or something and say ‘look, stop doing this’”.
Mr L explained that it occurred at his son-in-law’s buck’s party, which Mr L had helped pay for and where they were having private dances and that he was “bringing” W “into line”, as he had had his turn and was being greedy.
Mr L said that he just gave him “a nudge, I gave him a nudge with my hand”.
Mr L denies that he was angry at W but admitted that he may have raised his voice.
W is also a child who has problems.
The mother informed the family report writer that W “had done some counselling for 10 years, saying that he was ‘a hard child’ and suggested he presented with behavioural concerns” …and that “he has had five or six diagnoses, including Attention Deficit Hyperactivity Disorder” ([56] 2015 family report).
As well as being a victim there are allegations that W is an abuser with the victims being all of his siblings.
W and Z have physically fought and been threatening to each other, which has resulted in mutual DVOs.
W and Y engage in fights which have been violent, that have occurred in front of X.
The father deposes that “the child tells me that Y and W constantly scream and yell at each other in arguments almost every night, and they have physical fights with each other”. ([6] father’s trial affidavit)
From [37] to [39] the father outlines an incident in 2011 when the mother told the father about a fight between W and Y which resulted in W grabbing a knife from the kitchen and holding them at knifepoint and that X witnessed this incident and was so upset that she wet herself.
Extracts from the father’s affidavit were read to the mother in cross-examination.
The mother minimised the incident, saying that the child was in another room away from the fight when she wet herself and that the knife was only a butter knife that W held to his side.
The mother said “you don’t know W. Nobody was at risk. I’m letting you know nobody was at risk”.
The mother did not call the police regarding the incident.
Currently, W is the subject of a DVO taken out against him by his partner and has breached the DVO and has been implicated in violent activity.
Y
Y is the mother’s middle child.
The allegation that Mr L was abusive to the child when they were young extends to Y as well.
The DOCS records note that there was a general inquiry in 2009 regarding Y having learning difficulties, behavioural issues and attention disorder.
It is alleged that Y has been subjected to abuse by Mr M.
It is alleged that Y had been subjected to abuse by W.
The mother admits that W did “sack whack” his brothers which involves running up to the younger brothers and smacking their genitalia.
The mother stated that she had “reprimanded W for it” and that it had stopped, although “it took me a couple of times but, yes, he did stop”.
This behaviour by W occurred in front of the paternal grandmother, who also put a stop to it.
The mother explained “K had gotten to it before I did, but, yes, I did speak to them about it”.
As an adult, Y has been involved in significant conflict with W.
V
The second youngest child is V.
There are allegations that V has been abused and is also an abuser of X.
The first allegation of inappropriate sexual touching of V was by B, who is the son of the mother’s brother, Mr I.
The details are sketchy but it appears that B inappropriately touched V with the mother’s knowledge being that “B had touched him or something. I’m not exactly sure what it was, but then later said that V was touched on the penis by B”.
At the time, both children were aged around five or six and the mother spoke to her brother about it, who said that “it’s something that they do at that age”.
Police and welfare departments were not involved in the incident.
The second incident of abuse is that V has been “sack whacked” by W, who also sack whacked Y.
It is noted in the DOCS records that “W pulled V’s pants down and pummelled his private parts”.
In the family report interview, the mother informed the family report writer “it had only been a tapping game between them” ([54] 2015 family report).
The third incident of abuse for V is from a boy called C.
The father deposes that “C, a boy of approximately the same age as V, had been touching him in the downstairs toilets area repeatedly, over several weeks”.
The mother, in cross-examination, said “I do remember V saying something about C” but “we have no contact with them, and we haven’t for an extreme amount of time, and still don’t”.
V is also having problems with the mother informing the family report writer that V is seeing a counsellor “because he feels rejection”.
X
That then brings us to the youngest child, X, the biological daughter of the father and the child who is the subject of these proceedings.
Unlike some of the other incidents of abuse towards the mother and the other children, it is necessary to point out that all suspected incidents of abuse towards X are allegations only.
DOCS have been involved in respect to X since 2013, although no harm or risk has been assessed.
The mother denies that any abuse of X has ever taken place.
Mrs L’s response in cross-examination was interesting “X has never been abused. I’m – well, not no one has told me – and we – Mr L hasn’t, and I don’t spend much time with her. So if – if we – with X, there’s always Ms Thornes there or V or W or Y. So we’re – no one not left alone – she’s not left alone with us”.
The allegations of sexual abuse towards X are firstly that Mr L has been sexually inappropriately touching X.
This is denied by Mr L, Mrs L and the mother.
Mr L has for some time, albeit without his knowledge, been subject to a supervision order in respect to his time with X.
The mother says that she has consented to these orders only because the father was insisting on the orders being made.
The mother and Mrs L have worked together to ensure that X is never left alone with Mr L, although the evidence suggests that this has not been 100% effective.
Mr L admits to playing a chasey game with X which is called the “zombie game”. This involves chasing X around the yard and if the child is caught then she is grabbed by the legs and this sometimes occurs when X is lying on the trampoline.
The second allegation is that V has been sexually inappropriate towards X, including V “pashing” X with an open mouth and touching her on the vagina.
There is also an implication that perhaps this has been encouraged by the child W.
The mother denies these allegations, although in the transcripts of the taped conversation between the mother and the father in December 2013 the mother admits to it having happened “on one occasion”.
X told the family report writer that “V goes into her room and lays on the bed and closes his eyes…he doesn’t even ask. Mum tells him to get out of my room”. ([77] 2015 family report).
The DOCS records state that “V admitted to touching X, to Ms Thornes and Mr Thornes in 2012” and that X had said that V touched her on the bottom on the private parts.
The mother claims that the father badgered V into making the statement.
The third incident of abuse is that X has been fondled by B and his father, Mr I (who is the mother’s brother).
The next allegation of abuse is that W has been sexually inappropriate towards X.
It is alleged that W has encouraged V to pash X.
The mother said that she spoke to W about this and he denied this.
It is also alleged that W gets up in the middle of the night and climbs into bed with X. The mother states this doesn’t happen and that “I’m a pretty light sleeper”.
The mother denies that W poses a risk to the child, stating in cross-examination that “X always was with me anyway. W doesn’t live at home, and whenever the child – the children are around, then my other two are around anyway”.
The last allegation is that the father has in the past sexually abused X, although during cross-examination, the mother spoke of her only being the emotional abuse by the father towards the child regarding what the father might say to the child about the mother.
What interim parenting arrangements should be made for X?
For an interim ex tempore judgment, this has been a long and time-consuming analysis of the evidence to date but it has been necessary for so many reasons:-
a)The first is that the mother is completely oblivious as to why the history of her abuse and the allegations surrounding her family and her children are so important in determining the future parenting arrangements for X as illustrated by the following:-
i)The father, in his affidavit sworn 19 April 2016 and filed 20 April 2016, set out in detail his concerns as to the safety of the child in the mother’s household, considering the numerous allegations, the history of the abuse and the dynamics in the mother’s house.
ii)The mother’s very short trial affidavit which was sworn and filed a couple of days after that of the father’s makes not one mention of the history of abuse, except to deny contents of the counselling form and does not address the father’s concerns, except in [38] where the mother makes the sweeping statement that “my past doesn’t affect my parenting”.
iii)The mother chose not to file any affidavits by her immediate family including Mr and Mrs L, the maternal grandparents.
iv)Repeatedly during cross-examination, the mother questioned why certain things were being put to her or asked of her, with the mother making the following comments:-
- When asked about the abuse of Z and why that wasn’t put in her affidavit, the mother responded, “There’s nothing there because it has nothing to do with X and I don’t see what this has to do with her.”
- When questioned about the dispute between Z and W, the mother responded, “That was a while ago, yes. They did do that against each other, but what does it have to do with X?”.
- When questioned about the incident between Z and Mr M, the mother commented, “But what this is about is it’s about X and how I am raising X”.
- When questioned about the incident at school between W and the schoolboy, the mother said, “I don’t understand what this has to do with X?”.
v)The mother continues to question why certain things were being asked and asked and towards the end of the evidence, the following exchange occurred.
Her Honour: I’m just going to ask you on that, witness. You can’t understand why this question is being asked of you? You seriously say this is in court?
Mother: Yes.
Her Honour: With your history of sexual abuse, with your children’s history of sexual abuse, with your father’s history of being involved with people who are sexual abusers, with concerns constantly raised by the father about concerns about you being able to protect a child in your care. With all of this history – which, by the way, is emerging not from any of your evidence, but from the hard work put in by everyone at the table sitting there, sifting through reams and reams of documents to try and pinpoint all of these things. Where more and more is emerging, you still don’t understand? Are you serious when you say that to me?
Mother: Yes.
b)The second reason is that the evidence supports that the mother has been in denial about the issues and has minimised not only what has happened to her but what may have happened to the children.
c)This is not meant to be a criticism of the mother. I suspect that the mother has done the best she can in the circumstances but the mother needs to get some professional assistance to guide her through her complex history.
d)The mother has not had an easy life with a materially obsessive father, a non-protective mother and a family dynamic where everything difficult was swept under the carpet so as to avoid conflict or upsetting the father and an overall attitude of “Well, it’s not my fault” and poor decisions as to who the mother and her children were brought into contact with, it is not surprising that the mother who considers herself to be the black sheep of the family has found it difficult to navigate through life.
e)Despite this the mother remains defensive of her parents.
f)The third reason is that mother has made poor choices and is likely to continue to make poor choices if professional help does not occur.
g)The mother, in the past, has been dismissive of counselling and did not ensure that the children obtained appropriate counselling or therapy after their numerous incidents.
h)This is reflected in her trial affidavit, where the mother deposes that “I do not need to go to counselling” and “My past does not affect my ability to care for my children.”
i)Even when the mother admitted in cross-examination that counselling may assist, the mother referred to it only in the context of her relationship with the father and the difficulties in that relationship and not in respect to her childhood, the sexual abuse or the abuse of her children.
j)The difficulty for the mother is that her past reactions and views on abuse have resulted in
i)the children not confiding in the mother about their concerns,
ii)the mother failing to recognise the impact on the children of the various incidents,
iii)the mother failing to recognise that the children may have been sexually abused,
iv)and the mother failing to obtain the appropriate help for the children once sexual abuse has emerged.
k)The mother has never sought advice about sexual abuse and the impact on families and the signs to look out for.
l)The mother has subsequently enquired about counselling and has enrolled in counselling with (omitted) and has her grandparents and children been informed of this counselling.
m)This is a positive step by the mother but it is only one step in what may be a long journey for the mother.
n)The third reason is to illustrate to the mother how she was not protected by her parents from abuse and potential abuse and how the mother herself is repeating history in not protecting her children from abuse and potential abuse.
o)To put it simply, her parents have failed the mother:-
i)Initially, the L’s failed the mother by not providing a safe, open and approachable household where the mother could make disclosures about being ignored or free from repercussions.
ii)The L’s then failed her by not protecting their grandchildren when living under their roof.
iii)Then, when disclosures emerged by the mother and her children Mr L failed the mother by not providing support but hiding it from her father and then doubting the truthfulness of any of the disclosures.
iv)The L’s failed the mother by reintroducing a convicted paedophile into the household where children lived and not having regard to the impact on the mother and going so far as to sending the paedophile around to the mother’s household where she was caring for her children.
v)Lastly, the L’s have failed her by being perpetrators of abuse to the mother and to the grandchildren.
p)It is of no wonder, with that upbringing, that the mother has similarly failed to provide a protective household for her children.
q)I make this finding based on the following:-
i)The children have chosen to make most of the disclosures to other persons rather than directly to the mother.
ii)It appears as times that the mother has ignored the disclosures.
iii)When the mother has become aware of the disclosures, the mother has not made herself aware of the extent of the disclosures or appraised herself as to who needs to be informed of these disclosures and what help the children need to get through the impact of the disclosures.
iv)Like the L’s, the mother has exposed children to sexual abusers such Mr M.
v)The children have picked up behaviours which are not appropriate. The mother has been tardy in their prevention, such as “sack whacking”.
vi)The mother has failed to protect the younger child from family violence, such as an incident between W and Y which involved a knife and resulting in X wetting herself.
vii)Her first four children are suffering from concerning and varying degrees of mental distress as a consequence of their experiences in life and the mother has not been protective in getting the children the help that they need.
So it is in the context of all of this complexity that a determination must be made to the care arrangements for the child X, pending the final hearing in October 2016.
After the part heard trial, X was placed in the care of the father with the mother being able to see the child at school and at extra-curricular activities.
This was a temporary stopgap measure, pending the interim hearing.
The mother has now agreed that the maternal grandparents, Mr and Mrs L, are not to go near the children.
The mother maintains that this safeguard alone, together with her now participating in counselling, will provide sufficient protection for X and that X is to be returned to the mother’s care and spend weekend time with the father.
The mother’s position was articulated in oral submissions at the interim hearing where, in essence, it was said that the mother never presented a danger to the child but that it was just too risky to shift residency of the child to the father.
But what are the risks to the child?
Certainly the father has a chequered and dubious past history, including drugs, criminal behaviour, family violence and jail time, just to name a few.
As to the true extent of these histories, this will be fleshed out when the trial continues in October 2016 but all of the evidence, albeit untested, points to the father having changed his life around and being a consistent and sound father to X.
In the Memorandum to Court prepared by the family report writer for the purpose of this interim hearing, the following comments were made as to the father’s ability to care for the children:-
a)“I’m of the view that as long as the court does not identify any risk factors that would currently prevent Mr Thornes from caring for X, she should be placed in Mr Thornes’ full-time care until the conclusion of these court proceedings. The only risk factors that the mother seems to raise is the father’s inability to do the child’s hair for dancing, which the mother is able to do, and that the father may badmouth her to the child.”
b)“Whilst I did raise concerns that Mr Thornes may seek to negatively influence X against her maternal family due to his very strong views about risks posed by them and his concerns for X, I do not consider this concern should preclude him from caring for her. However, it will be important for Mr Thornes to refrain from speaking negatively about X’s family, as this is likely to cause her emotional harm.”
As to the impact of the change of residency on the child, the family report writer writes “It was my assessment at the time of completing the family report that I did not consider that X would have any difficulties in adjusting to a change of residence to living with her father. This was based on the fact that X has continued to have weekly and positive contact with Mr Thornes, and that I observed very positive interactions between them at the time of the assessment.”
The father is seeking an interim order whereby the child live with him which is supported by the ICL.
The family report writer recommends this arrangement, stating:-
a)“As highlighted in my family report, I raise concerns about the patterns of sexual, physical and emotional abuse that presented themselves with Ms Thornes’ family of origin, and including several of her children already experiencing sexual abuse and her own experience of sexual abuse and that these risk factors could mean Ms Thornes and her family may not be well equipped to protect X from any risk of abuse, sexual or otherwise, as alleged by Mr Thornes.”
b)“The evidence provided from Ms Thornes, Mr L and Mrs L during cross-examination has only cemented the concern I had about potential risk to X with all three witnesses giving as examples when as a family they had failed to act protectively in respect to both sexual and physical abuse to the children within their family, and failed to take action when needed.”
c)“Ms Thornes, Mr L and Mrs L through their evidence gave examples of where it appears to be part of their family culture that issues are not discussed openly, and where Ms Thornes and Mrs L engage in a coping strategy of not wanting to think about it and therefore address any issues that have arisen in respect to sexual abuse allegations.”
d)“It is very alarming to hear of the manner in which issues relating to W experiencing sexual abuse in school were not addressed by Ms Thornes and how Z was allegedly sexually abused by Mr S, a perpetrator of sexual abuse against Ms Thornes and her sister, who was subsequently allowed back in the maternal grandparents’ home following his conviction.”
e)“Furthermore, it is concerning that Ms Thornes has not informed her father of the Court order made preventing him from having unsupervised contact with X, and that this order presents to have been complied with.”
f)“All three witnesses presented with a clear lack of knowledge and understanding about sexual abuse, and this is another factor that may make it difficult for them to respond appropriately and protectively if such issues arise in X, as alleged by Mr Thornes.”
Conclusion
I agree to the comments made and I give significant weight to the recommendations by the family report writer.
Whilst the mother may be attending counselling and her parents have been removed temporarily from the situation, I find that X is still at risk in the mother’s household.
I find that this risk may be present within the mother’s home given the concerns raised as to W and V and family violence between W and Y and W and Z.
I therefore find that on an interim basis, the only order that can reflect what is in the best interests for the child is for X to remain living with the father.
As to time with the mother, I find that it is for the child’s protection that time needs to be supervised at those times the mother is not seeing the child at school or at extracurricular activities.
I agree with the father’s proposal of two hours each Saturday at (omitted) contact centre and until such time as that can be accommodated, then at (omitted) with costs to be shared equally.
I further order telephone calls twice a week.
I take heed of the recommendations that the child would benefit from counselling.
The parties need to understand that this interim arrangement is not a conclusive blueprint as to the future parenting arrangements of X.
As to the long-term arrangements for the child, this can only be determined after all the evidence is before the Court, which includes the mother completing her case and the father presenting his case.
In the meantime, it is imperative that the child is protected from risk and potential harm and that can only be achieved by the child living with the father.
I certify that the preceding two hundred and ninety-nine (299) paragraphs are a true copy of the reasons for judgment of Judge L. Turner
Date: 27 July 2016
Key Legal Topics
Areas of Law
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Civil Procedure
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Negligence & Tort
Legal Concepts
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Appeal
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Causation
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Damages
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Duty of Care
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Negligence
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Reliance
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