Thornton & Thornton
[2015] FamCA 92
•23 February 2015
FAMILY COURT OF AUSTRALIA
| THORNTON & THORNTON | [2015] FamCA 92 |
| FAMILY LAW – CHILDREN – Where the mother alleges that the father had engaged in sexual misconduct against their two female children – Where the mother’s belief pertaining to the alleged abuse is driven by various statements made by the children – Where the children are medically examined – Where the children make inconsistent statements to police, family members and other carers – Where the statements made by the children are not unequivocally consistent with abuse occurring – Where children make conflicting statements as to their desire to see their father – Where the mother is the primary carer of the children – Where the evidence is insufficient to establish the risk as unacceptable. FAMILY LAW – EVIDENCE – EXPERT EVIDENCE – Where the mother alleges that the father had engaged in sexual misconduct against their two female children – Where relevant rules of evidence are excluded pursuant to s 69ZT of the Act – Where expertise need not be established as a result – Where the trial judge holds that the appropriate qualifications, training or experience of an expert is a significant factor in the attribution of weight. |
| Evidence Act 1977 (Qld) |
| Brandon v Hanley [2014] VSC 103 |
| APPLICANT: | Ms Thornton |
| RESPONDENT: | Mr Thornton |
| INDEPENDENT CHILDREN’S LAWYER: | Nicola Davies |
| FILE NUMBER: | BRC | 8946 | of | 2012 |
| DATE DELIVERED: | 23 February 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 19-22 May 2014, 11-12 August 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr North SC with Mr Bunning |
| SOLICITOR FOR THE APPLICANT: | Wiltshire Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Jordan |
| SOLICITOR FOR THE RESPONDENT: | Simonidis Steel Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Andrew |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Qld |
Orders
IT IS ORDERED THAT
All previous parenting orders are hereby discharged.
Parental Responsibility
IT IS DECLARED THAT the presumption of equal shared parental responsibility is rebutted in the best interests of the children G (born … 2005) and V (born … 2009).
The mother MS THORNTON shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the children save that the mother shall, prior to making the sole ultimate decision about any such issue:
a.Advise the father, MR THORNTON in writing of the decision intended to be made;
b.Seek the father’s written response in relation thereto;
c.Consider, by reference to the best interests of the children, any such response prior to making any such decision;
d.Advise the father in writing as soon as reasonably practicable of her intended decision and before taking any actions necessary for, or associated with, the implementation of that decision.
Each party shall have parental responsibility for the day to day decisions about the care, welfare and development of the children while they are in his or her care pursuant to these orders.
Live With
The children shall live with the mother.
Time and Communication
The children shall spend time with and communicate with the father at all such times as might be agreed between the parties in writing but failing agreement in accordance with the succeeding provisions of these orders.
Week to Week Time
The children shall spend time with the father during gazetted school term time:
a.Each Sunday from 10.00am until 4.00pm supervised by Ms A until such time as these orders have been explained to the children by the Independent Children’s Lawyer in accordance with these orders;
b.From the Sunday immediately following the said explanation of these orders by the Independent Children’s Lawyer and for three consecutive Sundays thereafter, from 10.00am until 4.00pm; then
c.For 4 weeks from 5.00pm Saturday until 5.00pm Sunday; then
d.For the next 3 months, on a 2 weekly cycle from after school Thursday until before school Friday in the first week and from after school Friday until 5.00pm Sunday in the alternate week; then
e.Thereafter, on a 2 weekly cycle from after school Thursday until before school Friday and in the alternate week from after school Friday until before school Monday.
School Holiday Time
The children shall spend time with the father during gazetted Queensland school holiday periods:
a.Commencing in the winter holidays 2015 for 4 consecutive nights; and
b.For the spring holidays 2015 for 7 consecutive nights; and
c.In alternate weeks during the 2015/16 Christmas holidays; then
d.The first half of each school holiday period in even numbered years; and
e.The second half of each school holiday period in odd numbered years;
f.For the purpose of these orders, school holiday time shall be calculated by the number of nights gazetted as school holidays (including weekend nights; the night school concludes and the night before the commencement of the relevant school term) and shall commence:
i.When the father’s time falls in the first half of the holidays from after school on the day the school term concludes;
ii.When the father’s time falls in the second half of the holidays from 5.00pm on the day which is the halfway point of those holidays calculated to represent half of the holidays when spending time shall end at 9.00am on the day the school term recommences;
Special Occasions
The children shall spend time with the parent with whom they are not otherwise spending time in accordance with these orders:
a.For three hours from after school if a school day or for three hours from 2.00pm until 5.00pm if on a weekend on each of:
(i)The mother’s and father’s birthdays
(ii)Each of the children’s birthdays
b.From 9.00am until 5.00pm on Mother’s Day;
c.From 9.00am until 5.00pm on Father’s Day;
d.From 2.00pm until 5.00pm on Easter Sunday;
Notwithstanding paragraphs 8 c, d and e of these Orders, the children shall spend time at Christmas:
a.In even numbered years with the mother from 2.00pm on Christmas Eve until 2.00pm on Christmas Day and with the father from 2.00pm Christmas Day until 2.00pm Boxing Day; and
b.In odd numbered years with the mother from 2.00pm Christmas Day until 2.00pm Boxing Day and with the father from 2.00pm Christmas Eve until 2.00pm Christmas Day.
Communication
Each of the mother and father shall do all such things as might be necessary so as to facilitate each of the children communicating with the other parent at all such reasonable times as might be agreed and failing agreement:
a.With the father each Wednesday at 6.00pm with the children to initiate the call;
b.In school holiday time with the parent they are not spending time with each Wednesday at 6.00pm with the children to initiate the call.
Changeovers
Except as otherwise agreed in writing between the parties, the changeover point for the transition for the children between the households shall be at School B if a school day, if not a school day then at C Shopping Centre.
The parents may collect the children in person or by their nominee provided that the nominee is an adult who is known to the children and the other parent.
Exchange of Information
The parties shall keep the other informed of:
a.The name and contact details for each of the children’s doctors, health care and other treatment providers;
b.Any medical condition, significant illness or other significant health condition suffered by the children;
c.Any daycare, school, educational facility or extracurricular activity provider;
d.The means by which the other parent might purchase or obtain any school or extra-curricular activity photographs or awards;
e.The address at which the children will reside when in their care and a contact telephone number and each parent shall notify the other parent at least 7 days prior to relocating the children’s residence beyond a 20 kilometre radius from where they currently reside.
Authorisations
Each party shall do all such things and sign all such documents so as to authorize the other parent to:
a.Receive all information from the children’s school or pre-school to which parents are ordinarily entitled including but not limited to, their academic, sporting and social progress;
b.Receive all information from the children’s school or pre-school to which parents are ordinarily entitled as to events to which parents are entitled to attend or participate;
c.Receive any and all information to which parents are lawfully entitled from any doctor, hospital, therapist or other health professional who either child consults or by whom either child is treated;
In the event that either parent refuses or fails to provide the authorisations required by these orders, or in the event of doubt expressed by any or all of the persons to whom any such authorization is directed, this Order shall itself operate so as to provide the authorization that would otherwise be given by one or both parents of the children.
Publication
Pursuant to s 121(9)(g) of the Act and so as to avoid doubt, the father or the Independent Children’s Lawyer is hereby authorised to publish an account of these proceedings, namely these Orders and the Reasons for Judgment delivered herewith, to:
a. Mr D; Dr R; Mr F; Dr G and Dr H;
b. Ms A;
c. Detective J and any police officer charged with the responsibility of investigating any criminal complaint pertaining to the father’s conduct toward the children;
d. The Director of any office of the Department of Communities, Child Safety and Disability Services, to whom complaint or notification has been made in respect of the children.
IT IS DIRECTED THAT
The Independent Children's Lawyer shall, at the earliest opportunity, explain to the children the terms and effects of these orders utilizing a court counsellor or such other professional assistance as she might consider appropriate.
The mother shall make the children available for the purpose of carrying into effect the previous order.
The mother’s father, MR E be forthwith released from the undertaking given by him to the Court on 28 August 2013.
IT IS FURTHER ORDERED THAT
All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.
Following the expiration of the Appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
The Independent Children’s Lawyer is discharged upon the later of the expiration of the appeal period in respect of these Orders, or the hearing of any appeal.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Thornton & Thornton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 8946 of 2012
| Ms Thornton |
Applicant
And
| Mr Thornton |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
The mother of G (born in 2005) and V (born in 2009) asserts a belief that each of her daughters has been subjected to sexual abuse by their father. That belief is asserted as shared by the mother’s family. When the parties separated in April 2012, the children were aged six and three.
The girls’ father denies any untoward behaviour of any type. Indeed, he asserts the allegations against him are part of a “conspiracy” designed to achieve a significant restriction (or, perhaps, cessation) of the time he spends with his daughters. He contends that the “conspiracy” is spearheaded by the mother’s father.
Those very serious assertions dictate, effectively, the parties’ respective contentions as to the parenting orders which they assert best meet the best interests of their children[1]. If the mother’s primary contention[2] is sustained, the children will not spend any time with their father. If the father’s primary contention is sustained, the children will live with him and spend time with their mother, initially, five nights per fortnight.
[1]Noting, of course, that the Court’s central task is not to determine abuse unless the evidence compels such a finding, but to determine the best interests of the children informed by whether proposed orders present an “unacceptable risk” to them. M v M (1988) 166 CLR 69. Despite the fact that the Act’s mandatory requirements have altered in the approximately 25 years since that case was decided by the High Court, the principles remain equally applicable.
[2]The parties’ alternative proposals will be considered later in these reasons to the extent they remain relevant in light of the findings to be made.
The mother’s assertion that the children have been subjected to sexual abuse by their father is based essentially on things she attributes the children as having said and her observations of their behaviours including, she asserts, a fear of their father evident from their words and actions.
In addition, the mother deposes to the father’s “addiction” to pornography during the relationship. No pornography is deposed as having - directly or indirectly - any connection with the parties’ children, or any children[3]. Inferentially, the mother asserts that the father’s general character is such that he is capable of the behaviours toward the children which she alleges. The mother’s father (Mr E)[4] directly asserts as much.
[3]Although an elusive assertion alluding to “child pornography” emerged during the mother’s conversations with a psychologist, Dr R, and will be referred to later in these reasons.
[4]For clarity, the mother’s father will be referred to, as he was in the evidence and throughout the proceedings, as “Mr E”. Similarly, the mother’s mother will be referred to as “Ms E”.
While the motive for the father’s overarching assertion of “conspiracy” might be seen as relatively clear (a desire to remove him from the mother’s life and the lives of their children as “revenge”), the factual foundations upon which the asserted finding of “conspiracy” might be made are less clear.
The allegation appears to centre upon what is said to be a stark coincidence in timing between the breakdown in negotiations in respect of financial issues and the making of the allegations. It is asserted that this occurs against a background of the mother (and, it appears to be alleged, her family) seeking to significantly limit the time between him and the children post-separation. Significant reliance is placed upon emails passing between the father and Mr E as persuasive of both the coincidence in timing earlier referred to and an asserted underlying antipathy exhibited by Mr E to the father.
The mother tape recorded V on 26 July. An agreed transcript will later be quoted. A video recording taken by the father on a visit with the children on 16[5] September 2012, when the mother was also present, is in evidence. G has participated in two 93A interviews[6] on 31 July and 13 October 2012. The video of each is in evidence together with an accompanying agreed transcript.
Unacceptable Risk
[5]Exhibit M5 of the agreed transcript of the recording says “on or about 16 September” however it is noted that 16 September is a Sunday.
[6] The expression “93A interview” is a shorthand used almost universally in this State to describe formal interviews between police and children in sexual cases; it is a reference to s 93A of the Evidence Act 1977 (Qld) . The expression was used throughout this case and is accordingly used in these reasons.
Gravity of the Allegations and their Ramifications
The notion that children might be used (directly or indirectly) for the sexual gratification of adults is wholly repugnant to any sane person. To the extent that it is possible (or desirable) to identify or quantify that, it might be said that particular repugnance attaches – and should attach - to a parent of a child using or exposing their own child in that manner. Expressed in terms familiar to the Family Law Act 1975 (Cth) (“the Act”), the conduct is as complete and repugnant an abdication of parental responsibility as can be imagined.
Parenting cases in which allegations of the instant type are made present significant challenges for this court. Not the least of those challenges - and one evident in this case - is the nature, extent and quality of the evidence from which the court is asked to make findings in respect of very difficult central issues.
Section 140 of the Evidence Act 1995 (Cth) recognises that “the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved”.[7] The gravity of findings bear upon the decision as to whether the evidence as a whole persuades me to the requisite standard that they should be made[8]. Grave findings should not be made by reference to “inexact proofs, indefinite testimony or indirect inferences”.[9] Nor, as Dixon J observed “… circumstantial evidence cannot satisfy a sound judgment of a state of facts if it is susceptible of some other not improbable explanation.”[10]
[7]Qantas Airways v Gama (2008) 167 FCR 537 at [139] per Branson J; French and Jacobson JJ agreeing.
[8]Evidence Act 1995 (Cth) s 140(2).
[9]Briginshaw v Briginshaw (1938) 60 CLR 336, 362 cited in: M and M (1988) 166 CLR 69. See also K v B (1994) FLC 92-478; Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192 at [15]
[10] Briginshaw, above at 368.
The evidence before me reveals the possibility of a number of very grave findings:
·That the father has used both of his young children for sexual purposes and has falsely denied it;
·That the mother and Mr E have conspired to make false allegations to that effect;
·That Mr E has inculcated in G the false notion that the father has sexually abused them and has promulgated that false allegation to the mother, the broader family and the mother’s friends;
·That the father has induced G to tell and promulgate a lie (that Mr E engaged in the conduct just described) by bribing her with a promised payment of $100.
The gravity of a finding that a father has sexually abused his children is matched by the gravity of its corollary; a finding that the father has not engaged in behaviour of that type has, if it is erroneous, obviously grave consequences for the children. Equally, a finding of unacceptable risk carries with it very significant consequences for the children and has, axiomatically, a dramatic impact on their relationship with the father as well as ramifications for how the father might be viewed in the future.[11] Again, by way of corollary, a finding that an alleged abuser does not pose an unacceptable risk obviously also has potentially grave consequences for a child if it be erroneous.
[11]For example, Warnick J has observed: “Once a finding of unacceptable risk is made, imperfect though the process that leads to that result may be, the findings can come down between parent and child like an iron gate that no subsequent efforts can raise”. Napier v Hepburn (2006) 36 FamLR 395 cited subsequently with approval in Potter v Potter (2007) FLC 93-326; Partington v Cade (No 2) (2009) FLC 93-422.
Origin and Context of the Allegations
The genesis of the allegations that the father has sexually abused each of his daughters is in the statements made by the younger girl, V, to Ms E (the mother’s mother) and the mother in late July 2012, about three months after the parties separated. As will be seen, sinister meaning is attributed retrospectively to earlier statements and behaviours.
It is the July statements which prompted the mother to have both children genitally examined by a paediatrician and, a few days later, a formal police interview of G (and an unsuccessful attempt to interview V) on 31 July.
As seems almost ubiquitous in cases of this type, the evidence here consists of regular and increasing statements by the children of one sort or another, repeated to family members and others, all of which are said to be indicative of sexual abuse.
Equally ubiquitous in cases of this type, and again present here, the alleged statements are said to be accompanied by observed behaviours in the children which are causally attributed to the abuse: nightmares; stress accompanied by physical symptoms; fear of the father and repeated behaviour (and statements) to the effect that the children do not want to see their father. Contrary to the axiom familiar to science and statistics, correlation is said to imply causation.
The evidence in respect of these matters emerges from statements made by one or both of the children, predominantly to the mother, but also to members of her family and her friends. Affidavits from each depose to those statements. The father, too, asserts that the children have made statements to him; he asserts those statements are to the effect that he has not engaged in the conduct attributed to him. He deposes to observations of behaviours in the children when they are with him that are diametrically opposed to the picture presented by the mother and her witnesses, and to statements by the children to the effect that they not only want to see him but to spend more time with him. Almost all of the statements and behaviours to which the father deposes have occurred within the context of time that has been supervised by Ms A.
Ms A was initially suggested as a supervisor by the mother and agreed to by the father. After a short period of suspension instigated by the mother immediately consequent upon statements made by G, her continued supervision was formalised by a consent order. An Independent Children’s Lawyer (“ICL”) was appointed and Ms A was aware that she would be required ultimately to produce a report to the ICL. Ms A supervised time with the children over an approximate period of 20 months prior to being cross-examined in August 2014. Time occurred weekly on a Sunday and, for the majority of the time, at Ms A’s home. In the latter part of that period her supervision was conducted at other places, including the father’s home.
Apart from statements made by the children as alleged by the father, the mother and the mother’s family and friends, statements said to be relevant to a determination of the issue of abuse (and unacceptable risk) are also asserted to have been made to, or in the presence of, Ms A and to witnesses asserted to have expertise. The latter include: Dr R, a psychologist whose consultations were initiated by the mother and who saw “[V] and/or [G]” on nine occasions; Mr D, a psychologist jointly commissioned by the parties to produce a family report and Mr F, a social worker commissioned by the ICL to prepare a family report.
In addition, Dr G, a psychiatrist, was commissioned to prepare a report on the parties by the ICL. He did not see the children. Also, the mother called a paediatrician, Dr H, as a witness.
The Allegations of Abuse as they Emerge from the Evidence
Exhibits ICL 8 and ICL 9 consist of a listed summary of statements and behaviours deposed to by the mother in respect of each child. The list of statements and behaviours continue until early 2014 prior to the commencement of the trial. The lists comprise in total some 24 typed pages and 169 separate items. The lists include non-particularised references to alleged pre-separation observations, for example: “Generally throughout” the parties’ relationship “the children cried, had tantrums and begged [the mother] not to leave them with [the father] whenever [the mother] left the children in the father’s care”; “the children were wary of males” and “[G] generally slept with many soft toys around her, as if trying to hide”.
In respect of an event apparently said by the mother to resonate in events two years later pertaining to G, it is also said that, on Christmas Day 2010 (some sixteen months pre-separation when G and V were aged 5.2 and almost 2 respectively):
[G], [V] and their cousins were in their bedrooms when [the mother] walked past and overheard them talking “bottom talk”. “When [the mother] discussed this with [the father], [he] was very calm and said ‘isn’t that what kids do’”.
Examples of behaviours deposed to by the mother as indicative of abuse or as, effectively, “corroborating” statements by the children said to be indicative of abuse include:
·“Generally when the children lived with [the mother’s] parents”: “[V] acted aggressively toward males on various occasions. [V] acted clingy toward [the mother]. [V] regularly suffered from nightmares and would scream”.
·“The children dry retch, vomit and shake before and after visits with [the father]”.
·“[G] said ‘I don’t want to see daddy again’ and [V] replied ‘daddy’s dead’”.
·On 24.3.2013 “[G] dry retched over the toilet for half an hour and said to [the mother] ‘mum I don’t think I can go to see dad at [Ms A’s] today.
·On 27.01.2013 “the children spent supervised time with [the father]”. V wet the bed that night.
·On 17.02.2013 V woke up screaming “no, no, no” and dry retched.
Events and Statements Prior to 31 July 2012 Police Interview
An incident occurring between the children and their cousins on 4 June 2012 is deposed to as is a statement by G to the father in the mother’s presence on 10 July 2012. The mother deposes that, on 19 July 2012 (consequent upon a period of overnight time the previous night), V said that she “had a sore bottom ‘cause of whiskers”. The mother says she “did not know what she meant”. The mother also deposes to observing various contemporaneous behavioural disturbances (stomach pains, breathlessness and kicking and screaming at night). The combination of each appears to mark the start of her concerns about sexual abuse of V; concerns which she says were cemented a week later, specifically after statements by V recorded by the mother on her phone.
In paragraph 33 of the mother’s affidavit she states that the father sent a message on 24 July at 4.45pm saying “Nothing urgent. All good. Just funny story. Short version – [V] peed all over me. All good”. The mother swears in her affidavit: “I did not respond to the text message”. That evidence is false. In cross-examination she was confronted with a text sent by her to the father in response to his text. The text said: “Ha ha. Clean clothes in her kindy bag and jumper in [G’s] sports bag. Keep her warm. Welcome to parenthood.”
Ms E deposes to a conversation with V on 25 July[12] consequent upon a period of overnight time with the father the previous night. Ms E says that V said her “bottom is sore” and asserts that “[V] then said to me words to the effect of ‘Nanna, I have whiskers down there’”. The mother deposes to Ms E telling her that V had said to her that her bottom was sore “’cause of whiskers in her bottom”. Other things are said at that time by V, but they are not there deposed to. They will be referred to later in these reasons.
[12]Ms E’s affidavit filed 14 December 2012 deposes to 24 July. She corrected it in the witness box to 25 July. I accept the former was a mistake.
That conversation prompted, it seems, a conversation between the mother and V occurring the next evening at bath time. The mother said in the witness box that she initiated that conversation. Part of that conversation was recorded by the mother on her mobile telephone. The presence of the mobile phone in the bathroom at bath time is said to be serendipitous. The recording and the mother’s transcript of it was sent by email to Mr E. It is headed:
Evidence [V] against her Father [Mr Thornton] Sexual
Child Abuse
Documented and recorded 4.30pm 2mis 54 seconds 26/7/12
Questioning Conducted by mother [Ms Thornton] to her daughter [V]
Documentation of attached audio file
The transcription as it appears in the email will be quoted in full later in these reasons as will the cross-examination of the mother in respect of the circumstances of its recording.
That first tape recording was succeeded by another; on the mother’s account, twenty-three minutes after the first. In cross-examination, the mother said that the first was recorded when V was on the toilet before her bath and the second after the child finished her bath.
The transcript of what is said to be the relevant parts of that later recording was also forwarded by the mother to Mr E by email a short time after the first. It, too, will be quoted in full later in these reasons. The email prefaces the transcript with the words:
Recorded transcript from above verbal recording between [V] …/…/09 3 years of age and [Ms Thornton] her mother at 4.53pm”.
Police records (Exhibit ICL 15) posit the conversation of 26 July as the catalyst for the mother’s complaint to the police and the mother’s apparent belief that abuse had occurred subsequent to separation. The complaint to the police is recorded as including, “[the mother] noticed a rash on [V’s] behind and that [the father] has stubble growth on his face which may explain the rash …” The police notes record that the mother’s allegations pertained specifically only to statements made by V and record the mother telling police that “… [G] did not want to talk to her mother about any occurrences however the mother suspects that this child may also have been interfered with by the father”. Subsequent to the first police interview, the police records note that the mother stated that she “didn’t believe anything had occurred with [G] as she had never said anything …”.
The events of 26 July also prompted the mother to have both children genitally examined by a paediatrician at a hospital on 27 July. Each revealed no abnormalities. The paediatrician observed that a normal finding does not exclude the possibility that sexual abuse has occurred. Each of the children is reported as suggesting, separately and some months later, that physical injury had been caused to them by their father.[13] There is no evidence of any opinion sought from the examining paediatrician, or any other doctor, subsequent to either of those statements. Nor is anything referred to by the paediatrician pertaining to any rash.
[13]The mother deposes that on 2 September 2012 V said that her father had “… tore her skin”. Exhibit ICL 16 (Departmental notes) record G saying (apparently on 10 October 2012) that “daddy cut me there not with a knife”.
The mother deposes in her affidavit of evidence-in-chief at [45]:
When [V], [G], my mother and I were walking out of the examination [by the paediatrician at Hospital K] I can recall [V] saying words to the effect of “that Daddy puts his fingers in her bottom like how the doctor put her fingers in her bottom” and “what the doctor did to me is what Daddy does to me”. [V] also said “Daddy had her last week and he touched her bottom and she put him in the naughty corner”.
The mother goes on to depose, at [46], to behaviours said to have been observed later that evening which she appears to attribute as causally linked: “ … [V] waking up and trying to vomit … gagging and she had a high temperature … nightmares through the night and [… saying …] ‘No no no no no Dadda, stop it! Don’t show me your bottom that’s not a magic show.’”
Prior to making a complaint to the police on 27 July, contact was made with a Mr L who is, apparently, a police officer and a friend of Mr E. Mr L was not called as a witness. Mr E deposes that Mr L said words to the effect of “The odds are, check – get them both checked. Usually in these cases, they’re both – something has happened”. Also apparently acting on the advice of Mr L, the mother and Ms E attended the matrimonial home where they found a yellow blanket which prompted a conversation between the mother and V, the effect of which was that the blanket was put into V’s bottom. The blanket was never given to the police nor mentioned to them.
The 31 July 2012 Police Interview
On 31 July, the police attempted to interview V but she would not engage in the process. Detective J conducted a 93A interview with G[14]. Her statements to the police officer will be referred to specifically later in these reasons. The interview is summarised in police records (Exhibit ICL 15).
[14] An agreed transcript of the interview is Exhibit ICL 2. The recording is Exhibit ICL 11.
In the interview, G said she had seen her father kissing V on the bottom. She said it was on the side of the bottom. When asked to describe the kiss she did so on the palm of her hand. The police officer describes it as “a peck style kiss”. That description describes accurately what I saw G demonstrate on the video. Nothing was said to V by the father in conjunction with the kiss.
Although initially saying she “doesn’t feel comfortable” with her father, “… on elaboration [she] states not being comfortable with dad relates to him being loud when he is downstairs with his friends and she is trying to get to sleep”. G said that her father “… had not touched her”. The records also record “she is not scared of her father but feels that V is always allowed to do things but she is not”.
The police record that, “[a]t this stage there is insufficient evidence to substantiate any criminal offence has occurred”. The police notes also record that: “Mother stated that the child [V] had made disclosures to her relating to the father kissing her and was documenting it and would email. Further review to be conducted once documents provided by mother”. The police records do not record any “documents” subsequently being provided by the mother; the “supplementary report” following the matters just referred to pertains to a subsequent complaint by the mother, and consequent 93A interview, in October.
Events and Statements Subsequent to the 31 July 2012 Police Interview[15]
[15]Excluded from the list of statements made by the children outlined hereafter are those said to have been made by either of the children during sessions with a therapist, Dr R. Dr R’s evidence will be dealt with separately below.
G was interviewed by the same police officer on a second occasion on 13 October. Despite G’s denial to the police on 31 July that improper conduct had been directed to her, the 31 July - 13 October period sees statements by G said to be indicative that she, too, has been sexually abused by her father.
On 1 August 2012, the day after G was interviewed by the police, the mother initiated a conversation with V about “the afternoon she had spent with her father on 24 July 2012”. The mother’s account of what V said is that the father “…was pretending to be a monster on my bed and he weed on my bed…” The mother deposes that “…[V] [said] words to the effect of ‘Daddy did pop offs on her face and in her mouth, he kissed her on the bottom.’ She said she was crying and it was disgusting. She then said that ‘He used the blanket and pretended he was a monster and that daddy was jumping up and down pretending to be a monster on my bed and he weed on my bed’. She also said that ‘he put blankey in her bottom and that dad didn’t say he was sorry’…”. “She then showed me what he did and jumped on the bed”.
The evidence does not reveal that the event and statements were witnessed by anyone else. In that respect the mother deposes that V said that G was at a dancing lesson and, as a result was not present when the alleged behaviour allegedly occurred.
The mother and her witnesses depose to a number of statements made by the children within the week following the 31 July interview, to which, plainly, the mother (and her family) attach significance in concluding that both children have been sexually abused by their father:
· Ms I, a friend and business partner of the mother, says that on 3 August V said “out of the blue”, words to the effect of “You know what my daddy did, [Ms I]?” … “He kissed me on the bottom and it was disgusting.” … Ms I said that she told V that her father’s action were “not nice”. V said words to the effect of “I tell him to stop but he doesn’t”.
· Ms E swears that on 4 August, when bathing V and G, V said words to the effect of “Only Daddy can touch my bottom.”
· Ms E also deposes that, two days later on 6 August, when collecting the girls from school and kindy, V said to G words to the effect of “do you want to see daddy? … I miss daddy”. G then said words to the effect of “but he kisses your bottom” and V said “ok”.
· Ms I deposes that on 8 August, when at a park with her son M and V, she recalls hearing V say to M words to the effect of “[M], I have got a secret to tell you”. M’s response “was a typical four-year-old ‘ew’”. Ms I “asked [M] what [V] had said [and] he told me words to the effect of ‘[V] said her daddy weed on her bed and her face’”. After V again whispered to M “[M] then blurted out words to the effect of ‘[V] said her daddy kisses her bottom and she doesn’t like it.’” The mother also deposes to this incident – based, it seems, entirely on what Ms I told her: “[Ms I] told me that [M] told her that [V] whispered in [M’s] ear about the things her Daddy had done to her. [Ms I] also told me that [V] had told her when we were at the park, that Daddy had weed in her eyes”.
Thereafter, further statements made by the children and observations of their behaviours are deposed to by the mother:
a)The mother reports V saying during a telephone call with her father on 14 August (which was, the mother says, the first time V had spoken to her father since she made her statements on 26 July 2012: “I love you dad, but did you kiss my bottom” to which, the mother says, the father replied, “stop talking silly talk, we don’t talk silly talk”.
b)The mother deposes to a statement asserted to have been made to a Ms S – a counsellor or therapist to whom the mother took V for one session. The mother says that on 21 August, V told Ms S that “daddy kisses her on the bottom” and when Ms S asked V why, she said words to the effect “Because he loves me”. Ms S is not a witness. Counsel for the father asked the mother about this to which the mother replied: “I believe she gave notes”.No notes were tendered. No report is in evidence.
c)The mother says that on 23 August 2012 she observed V putting her fingers into G’s bottom and when asked why she had done it, V said “… her Dad had shown her”.
d)On 28 August 2012 the mother says that V asked her “…to ensure that ‘daddy would not kiss her bottom’…”. On the same day, the mother deposes that G was sleeping with her and “… screamed three or four times during the night as she was scared.” When the mother asked her why she was scared, G said words to the effect of “because of what daddy does to [V] I am scared”. The mother deposes that she then asked G if it had happened to her. “She nodded her head and broke down crying and then said words to the effect that ‘she couldn’t remember’ and that ‘I can’t talk about it until I am older, it’s not the right time to talk about it’”.
e)On 1 September 2012, the mother says that V said to her words to the effect of “mummy, I asked daddy and he promised he would not kiss and lick me on the bottom again”.
f)The following day, the mother says she observed V urinate on G in the bath and when the mother reprimanded her for doing so, V said words to the effect of “daddy wees on me”. The mother deposes that G said “no he doesn’t” and V responded with words to the effect of “yes he does, he wees on my bottom”. The mother further deposes that when she put V to bed that night, V said words to the effect of “I don’t want to see daddy again, mumma he hurt me he tore my skin” and when the mother asked her where, V “…pulled down the back of her pants and pointed to her bottom…”.
g)The mother reports a nightmare which G had on 6 September 2012 about the tooth fairy. She says that G kept saying “I can’t talk about it until I am older, it is not the right time to talk about it”.
h)The mother says that on 8 September, V had “…asked [her mother] to promise that her father would not kiss her on the bottom again…”.
It can be seen that the mother deposes to an event on 28 August whereby she appears to infer that words and an apparent non-verbal assignation by G indicate that she had been abused by her father. As will be seen, from about 9 October, evidence is given by the mother of direct statements said to have been made by G indicating that she, too, had been subjected to abuse by her father. That specific evidence emerges from statements consequent upon an incident on that date as a result of which G was chastised for behaviour involving her cousin. On the mother’s account, “[t]hey were showing each other their bottoms”. Having asked the girls to desist and making it clear that it was “unacceptable behaviour”, the mother called G into the bathroom. The mother “asked [G] if someone had done that to her”. G:
… said ‘no’ and was silent but then said that ‘dad had licked his two (2) fingers and wiped them on her stomach”. When I asked [G] if he ever touched her anywhere else she said “no, just licked his fingers and rubbed them on her stomach.” (at [72]).
In her evidence-in-chief, the mother deposes that on 9 October:
73.I spoke to [G] and asked her again why she continued to do these things. [G] told me that [the father] had touched her on 24 June 2012 which was the night that she had a sleep over with [the father][16] and lost her first front big tooth. When I asked [G] why she was doing this she told me that her father had done it to her.
74.[G] told me that [the father] had said to her that he was the tooth fairy and that he put two of his fingers inside her bottom that night. [G] said words to the effect of ‘he put his fingers in slowly and it hurt’. [G] demonstrated what she had said [the father] had done to her. She put two fingers in her mouth and started licking them and twisting them in a sexualised manner in her mouth with sound effects. I was horrified and sick to my stomach when I saw her do this as that is what [the father] used to do to me when we had sex.
75.I asked [G] why she had not told me earlier and [G] told me that [the father] had said to her not to tell me as ‘Mummy would kill Daddy’. She started crying and said ‘dad licks his fingers and touches my stomach and the night she lost her tooth when the tooth fairy came, dad came in and said he was the tooth fairy but I knew it was him. He put his fingers in my bottom’. I said to [G] ‘I know you love daddy and daddy loves you but it was wrong of daddy to do that’. She told me that she could not remember it happening any other time.
[16]The mother’s affidavit of evidence-in-chief deposes that time between the father and the children “… after separation included time during the day, time at the home of my parents and time overnight with [the father] alone”. Only two specific periods of overnight time (described by the mother as “sleepovers”) are earlier deposed to –18 July and 24 July. Her (unsworn) case outline includes in a chronology a third occasion, 10 July. Other evidence suggests a fourth. In any event, no cross-examination challenged the assertion that overnight time occurred on 24 June and I assume it is uncontroversial.
Consequent upon this conversation, the mother “stopped the children spending time with [the father]”.
The mother’s brother-in-law Mr N deposes to a conversation he had with G on the same night of 9 October. In his affidavit, he deposes that he asked G if she wanted to talk to him “about the allegations”. He says that she told him “that she had been holding a secret”. That occurred at about 7.30 at night subsequent to G’s conversation with the mother. He deposes to his question of G being prompted by both the mother and G being upset. Mr N said in cross-examination that G put two fingers together and she said words to the effect of “Daddy puts his fingers down there,” pointing at her vagina, “And smells his fingers and licks them”. He asked G how this made her feel and she said “It’s disgusting. I don’t want [him] to do it anymore,” and it happened when “he was being the tooth fairy.” In his affidavit Mr N reports G as saying “he says that he is the tooth fairy… I just pretend I am asleep … I want him to stop doing it”.
The mother’s sister Ms N said in cross-examination that the following day, 10 October, she said to G “that it was good that she had a big talk with her mum last night” and that G then said “Yes, Daddy pretends to be the tooth fairy, licks his fingers and touches my bottom.”[17]In her affidavit, Ms N deposes to G saying “front bottom”.
[17] Transcript of proceedings 21 May 2014, page 315 ln 43-44
The mother again raised with G the incident and conversation just referred to three days later on 12 October.
The mother says when she was driving to the airport she asked G why she had not spoken before about what [the father] had done, to which G responded with words to the effect of “daddy said if I told you, you would kill him … I cried every time you went to training … how come you didn’t listen to me.” G also told her mother that [the father] did it to her “because he loves me” and that it had been happening since she was five years old.
Documents produced under subpoena from the Department of Communities, Child Safety and Disability Services were tendered by the ICL. (Exhibit ICL 16). They record a notification to that Department made (by an unidentified notifier) on 12 October. Among the notified concerns, it is recorded that: “… [G] said that ‘daddy cut me there, not with a knife. Daddy was pretending to be the tooth fairy that night. [G] has been having nightmares about the tooth fairy hurting her for the past couple of months”.
The Children are seen by the Psychologist Dr R
At the mother’s instigation, Dr R, a psychologist, saw “[V] and/or [G]” on nine occasions. Six of those sessions occurred approximately weekly prior to a second police interview with G which took place on 13 October[18]. The last of those six sessions occurred on the day before that police interview. The first session subsequent to the second police interview occurred five days after it on 18 October.
[18]Report of Dr R: 4/9/12; 11/9/12; 18/9/12; 25/9/12; 5/10/12 and 12/10/12. The remaining three sessions occurred on 18/10/12; 24/10/12 and 9/11/12.
Dr R was the third therapist or counsellor to whom V was taken by the mother in the approximate five months between separation and G’s second police interview. The mother deposes to him being the first to whom G was taken.
Although it is not referred to in Dr R’s report, it seems to be uncontroversial that the father was invited to participate in this process but he declined, seeking in fact that the process cease. I reject the submission by the mother that the father’s lack of participation in Dr R’s process was unreasonable or that some inference adverse to him should be drawn from it. There was at that time (and still is) a high degree of conflict and suspicion between the parties (including a suspicion by the father that the mother was “evidence shopping”) and Dr R was chosen unilaterally by the mother. Whether or not the first suspicion is ultimately correct or not is not to the point in assessing the reasonableness of the father’s then conduct.
Although not established through direct questions of Dr R, it is clear that the focus of his sessions with “[V] and/or [G]” was therapeutic as distinct from forensic. In that respect, not only was the father not seen by Dr R, either alone or interacting with the children, but, in addition, the report itself says that, “…[e]ssentially the focus was on giving [the mother] and [V] both skills to manage current symptoms”.
The presenting issue as summarised in the report was that “[V] had disclosed possible sexual abuse to [the mother] by her [i.e. V’s] father”. The report goes on to record that the “… alleged abuse had occurred on multiple occasions and included [the father] kissing/licking/touching her bottom”. A series of V’s behaviours recounted by the mother is there also recorded. No concerns or allegations of sexual abuse of G are referred to as constituting any of the presenting issues. The first session was on 4 September 2012.
Dr R’s report refers to seeing “[V] and/or [G]”; it does not specifically refer to the fact, which emerged in his oral evidence, that the mother was present for seven of those nine sessions. Neither the report nor oral evidence specifies each of the sessions for which she was present. The report says that “[G] also attended some sessions with [V] to help build resilience for [G] and to help [V] engage more in the sessions as V was very quiet and shy in the sessions with me by herself” (my emphasis). The report does not specify how many, or which, sessions saw both children present. Dr R stated in cross-examination that he saw G and V together without their mother on two of the nine sessions, that there were only “a few sessions that I had that [G] was involved in”, and that “most of my sessions were with [V] and [the mother]”.
Although Dr R makes mention of being the third therapist to whom V had been taken in an approximate five-month period, he makes no mention of any enquiries made of those earlier therapists. It is also not known whether Dr R was made aware that G had been interviewed by the police some six weeks prior to his first session and, in that interview, had denied that any improper conduct had been directed toward her. There is also no indication that he was aware that the police were unable to have V engage in an interview.
Particulars of the statements said to have been made to Dr R by each of G and V will be referred to later in these reasons. For present purposes it might be observed that his report says that, “[d]uring the course of the sessions [G] disclosed her own sexual abuse to [the mother]” …while recording later in the report that, “When we were discussing various types of feelings, [G] did disclose her abuse to me …”. [Emphasis added in each case]. In cross-examination Dr R confirmed that G’s disclosure to her mother “definitely occurred outside my room”.
The latter “disclosure” did not occur verbally; G refused to do so. Dr R acquiesced in that refusal. He asked her to write her statements on a whiteboard. G agreed. There is no record of what G wrote on the whiteboard. In oral evidence, Dr R said he would “ordinarily” take a photo of what a child wrote on the whiteboard. However, not only would G not say anything verbally to him, he says that she also refused to permit him to take a photo of the whiteboard. He also acquiesced in this refusal.
As mentioned, the terms of the initial referral pertained, on his account, to concerns about sexual abuse of only V. No mention is made of any statement by V in any of the nine sessions save for one. In recording G’s “disclosures” to him as just described, Dr R said that when he “…asked [V] whether this had ever happened to her she buried her head behind G and said that Daddy put his fingers in her bottom.”
Dr R reported the “incidents of sexual abuse” to relevant authorities. In addition, he says in his report that he also “…spoke to Taskforce Argos[19] regarding [the father] and the possibility that he may be engaged in child pornography offences.” Nothing in Dr R’s report or evidence suggests any basis for the latter report save for statements by the mother about something which, on his account, is said by the mother to have occurred over eleven years previously: “[the mother] did relay that when she first started dating [the father] [20] he had been in a big argument with his brother about files that his brother found on [the father’s] computer.” The father complained during his interviews with Mr F that his “computers were seized”. There is no other evidence before me in relation to that seizure; that the police took any action arising from that seizure, or that there is any on-going investigation in respect of same.
[19] A branch of the Queensland Police Service dealing with sexual offences against children.
[20]The mother deposes to the commencement of the relationship with the father commencing “in or around July 2001”.
The 13 October 2012 Police Interview
Consequent upon the statements made by the children in the period after the first police interview and, it seems, the October statements of G in particular, G was again interviewed by Detective J on 13 October 2012.[21]
[21] An agreed transcript of the 93A interview is Exhibit ICL 3. The video recording is Exhibit ICL 12.
Again, particulars of what G said during that interview relevant to abuse or risk will be given later in these reasons. During that interview, G alleged that her father had engaged in specific sexual conduct towards her. The subpoenaed police notes record in that respect that, save for the details given by G, “[w]hen attempting to obtain further particularisation child was unable to enhance further”.
Despite G saying a number of things to the police officer that might be construed as indicative of abuse, the police determined that “there was insufficient evidence to substantiate any offence has taken place sufficient for a [criminal] court proceeding”.
The Father’s Covert Video Recording
On 16 September 2012 (that is, about three weeks before the second police interview) the father took a video recording of part of an interaction between the mother, the children and him at a shopping centre. (Exhibit M5).
The video was taken covertly – that is, without the knowledge of the mother (or the children). The recording is plainly self-serving – it is covert, part only of the interaction and, importantly, only a part selected by the father.
An attempt was made at the hearing to agree on a transcript of the words recorded. A transcript was agreed with one exception. Toward the end of the transcript, two alternatives are given to a response from V to a direct question from her father as to why she had said he touched her bottom. One records “because you didn’t”; the other “because you did it”. As I said in court, I consider that the recording reveals the former. Counsel for the father agreed. However, counsel for the mother suggests the latter. Despite listening to the recording multiple times, I consider the recording insufficiently clear to stand on its own as evidence of either.
In any event, I accord no weight to either version of the statement in assessing whether abuse did or did not occur or in assessing whether time with their father involves an unacceptable risk to the children. (Nor do I attach significance to any other words used as indicative of abuse or as indicative that it did not occur).
The Mother’s Assertions After the Second (13 October 2012) Police Interview
The mother deposes in her evidence-in-chief to statements made by V and G subsequent to the second police interview.
Examples include:
a)On 18 October, five days after the second police interview, V started putting her fingers in her bottom and making G smell them. When told by the mother not to do it to G “or anyone else”, the mother says that V said words to the effect of “is it just for daddys to do”.
b)Later that evening, the mother says V said “out of the blue” words to the effect of “oh that’s wee wee” “he put his fingers in my mouth with stinky bottoms on it, I spat it out and spit the bottom at dad.”
c)The mother recounts G saying on the following day, 19 October, that the father had said to her that “mummy hates dad and that mummy would kill dad if [G] told mum the secret”.
d)On 10 December, G asked the mother why she and the father had separated and the mother responded:
…that it did not have anything to do with her or [V], that we both love her and [V] and that it was just best for us not to be together. I asked her how that made her feel. [G] told me that it made her feel sad but that she did not like what [the father] did to her. I asked [G] if she wanted to tell me about what [the father] had done to her. She said to me ‘He put his fingers in and said he was the tooth fairy’. I asked [G] if that was what [the father] had said each time. She said ‘no, he said he was a spiritual ghost’. I asked [G] how it happened. She said ‘Daddy would wait until I rolled on my side, he said he was pulling the blankets up but he wasn’t really he put his fingers in’ I asked where he put his fingers. [G] told me ‘in my back bottom’. I asked ‘are you sure’. She said ‘yes, he licked his fingers and put them in my bottom.
·G saying that “… her father had taken a photo of her and [V’s] bottoms in the bath and had asked her to stand up and wash her bottom and he took photos of her”.
The mother also deposes to a number of physical symptoms and observed behaviours which she attributes to the abuse of the children by their father and their consequent fear of him. Those observed behaviours and statements include statements and behaviours said to be indicative of a floridly-expressed unwillingness to see the father. Examples include:
·The mother deposing to and annexing a medical report that V had “… been a patient of the above listed practice from 15/3/13 to 10/04/13” (that is, about three weeks) V had “… presented with some physical signs associated with the stress and anxiety that has been happening in her life” that included “worsening eczema which was over her entire body and she had peeling of the skin on her fingers as well associated with the stress. She has red raw fingers associated with excessive peeling of the skin.
·In a similar vein, a report in respect of G (who had been a patient of the practice for about 10 weeks from 6/2/13 to 29/4/13 says that she has “… presented with some physical symptoms associated with the stress and anxiety she has recently been through … [including] dry retching, some vomiting and also breakouts of her eczema and peeling of her fingers that at times were extremely red and raw due to the peeling of her skin”.
·G saying “no, no, no” when reminded it was time to telephone her father and appearing “quite distraught … She begged me and was sobbing uncontrollably saying that ‘she did not want to speak to Daddy’”.
·G saying “out of the blue” words to the effect of “mum what if I was playing in the park with dad and he tried to steal me”.
·After a period of supervised time with Ms A on 9 December, the mother asserts V was angry “ … punching and hitting [G], pushing her dinner over and not eating her food” and when asked why she was angry, V said words to the effect of “I am angry because I saw Dad and I never want to see him again”.
·Both girls “crying and becom[ing] distressed” when she encouraged them to telephone their father.
·G “screaming outside [the supervisor] Ms A’s residence” on 6 January 2013 “as she did not want to see her father.” G “started to yell” at her mother and “begged [the mother] and kept saying words to the effect of “I don’t want to see dad”. G is alleged to have “had a stomach ache and wet the bed that night”.
The Children are seen by Reporting Psychologist Mr D
Mr D, a psychologist, first saw the parties and children on 28 November 2012. He had been commissioned “on the joint request” of the parties’ legal practitioners. Although commissioned in that manner, he says “that my work in preparing a report is fundamentally and ultimately for the court”.
The circumstances surrounding the subsequent preparation of two reports by Mr D – a “Brief Family Report” (Exhibit ICL 5) dated 18 October 2012 and a “Partial Family Report” (Exhibit ICL 6) which is undated – are highly unusual and will be discussed below. His (extensive) notes were also produced and became Exhibits ICL 1 and ICL 7.
The “Partial Family Report” outlines a series of interviews and telephone discussions said to have occurred in April 2013. The persons there referred to are not the parties to these proceedings, nor do they have any connection with this case. It is agreed they refer to a family wholly unconnected with these proceedings.
The findings just discussed and made earlier in these reasons lead to the following conclusions:
· The evidence in this case falls a long way short of evidence which would compel a finding that the father has sexually abused his children or, to be clear, that he has engaged in any improper conduct toward them;
· As to “… 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”[44], I consider the weight of the evidence is strongly persuasive of there being no unacceptable risk to these children from living with or spending time with, their father; and
· The children have a loving relationship with their father, are not fearful of him and desire spending more time with him.
[44] M v M (1988) 166 CLR 69, 77-78
Best Interests and Orders
The findings earlier made in so far as they concern the mother and her conduct in seeking to influence the children bear directly upon findings that need to be made by reference to s 60CC in assessing the children’s best interests.
It will be clear from what I have earlier said that I consider that a degree of moral opprobrium should attach to aspects of the conduct of both parents.
The insightless and high-handed conduct of the father in questioning the children when specifically prevented from doing so and doing so in a way that compromised the position of Ms A does him no credit. So, too, although not related to parenting per se, telling lies to an airline. The mother’s conduct can be seen to be more directly related to the parenting of the children. Bringing pressure to bear upon young children is emotionally abusive. Exposing children to relentless questioning as to their behaviours and relationship with their parent in the aftermath of a parental separation is emotionally abusive.
If I concluded that she did so because she sought to curtail significantly the father’s relationship with the children without any genuine belief that he had perpetrated the actions of which she accuses him, that would be an extremely serious breach of the responsibilities of parenthood and the duties inherent in parental responsibility. If I considered that the father’s actions in questioning the children were unrelated to them and entirely based in a tit for tat desire to extract a benefit in his conflict with the mother, similar considerations apply.
As I have sought to point out earlier in these reasons, human actions and reactions are complex and all the more so when a relationship has ended. The reactions of separating parents as it affects their parenting complicates their actions and reactions dramatically and all the more so when allegations of heinous conduct toward children is involved. When parents think the end is moral - and what is more moral than seeking to protect one’s children – the means to that end become aberrant. I think that has occurred here.
That does not excuse poor conduct. However, the issue is not a judgment about that conduct but, rather, how that conduct should be judged within the matrix of a range of factors mandated by the Act, ultimately directed toward a determination of orders that best meet the best interests of the children in the difficult circumstances in which they find themselves.
The assessment of those matters should, in my view, be based on an ultimate conclusion that the conduct of each of the parents which might properly be judged harshly and, in particular, that of the mother in the specific instances earlier referred to, should be seen as aberrant and as each of them thinking that a particularly moral end justifies means that are, objectively analysed, emotionally harmful to their children.
Parental Responsibility
Section 65DAC of the Act requires that, when two or more persons share parental responsibility for a child, they must, in exercising that parental responsibility in respect of major long term issues, consult and “… make a genuine effort to come to a joint decision about” the relevant issue or issues.
In circumstances where significant high conflict attends a co-parenting relationship, and in particular where serious allegations of the type under consideration here have created significant animosity, that requirement has the potential to exacerbate conflict. When, as here, children have been exposed to a lengthy period of significant post-separation conflict and have been the centre of allegations, the exacerbation of conflict (or the creation of new conflict) is a real possibility. Any such conflict is, in my view, antithetical to their best interests.
To the extent that orders might do so, they should seek to avoid that conflict. That can be achieved by vesting parental responsibility solely in, relevantly, one of the two parents.
However, as I have sought to point out in other cases[45] the potential exclusion of one parent from decision-making about major long term issues by the interpretation of an order for “sole parental responsibility” which accords to “the other parent” no rights, duties or responsibilities in respect of major long term issues at all, is a significant interference with that parent’s rights and the parental responsibility that the parent otherwise enjoys and assumes by reason of parenthood. Of course, the children’s best interests should prevail over the interests of the parent, but that does not render the latter irrelevant[46]. If orders can be framed to take account of both considerations consistent with the children’s best interests predominating, they should be preferred over orders that exclude, or might be interpreted as excluding, a parent from those decisions.
[45]See, for example, Hardie & Capris [2010] FamCA 1046; Donaghey & Donaghey (2011) 45 Fam LR 183.
[46] See, analogously, U v U (2002) 211 CLR 238 at 159 per Kirby J.
In my view, orders can be, and in this case should be, shaped so as to meet concerns arising from the likelihood of the parents not co-operating or their competing assertions creating conflict likely to embroil the children, while at the same time paying regard to the interests of the “other” parent.
There is little doubt in my mind that the mother has been the primary nurturer of these children. Quite apart from other evidence (including what I consider to be, effectively, a concession made by the father to that effect), so much is evident from G’s statements. Historically, I think it plain that the mother has taken the primary role for making decisions for the children. I have already indicated that I consider that the father’s narcissistic traits and lack of insight can impact upon his decision making and parenting.
I will make orders that vest sole parental responsibility in the mother, but entrenching a process that, while requiring notice and the receipt of the father’s views much as the Act requires, nevertheless provides for the mother to make the sole ultimate decision about those issues (on notice to the father). In addition, in seeking to balance the factors just referred to, the father should be involved in the children’s day to day lives through the provision of information relating to where they live, their schooling and their health. (Equally, the mother should know where the children will be staying when spending time with the father). I will make orders facilitating the provision of information and authorisations so as to permit that flow of information.
Put in terms familiar to s 61DA(4) of the Act, I consider that the best interests of the children require a rebuttal of the presumption of equal shared parental responsibility for the reasons just given.
That being the case, to use the expression used by the Full Court in Goode and Goode[47] a decision about the parenting orders which best meet the best interests of these children is “at large”.
[47] Goode & Goode (2006) FLC 93-286, 80, 899.
Live With and Time Orders
I repeat that it cannot, I think, be contended other than that the primary nurturer of these children has been their mother. Although G’s statements come from a relatively immature girl and were directed to the amount of time she sought with her respective parents (she indicated plainly that she wished to spend more time with her father but nevertheless did not see him as being the parent with whom she would primarily reside), I think her statements are the (relatively immature) expression of something deeper. I think she sees her mother as the parent from whom she receives her primary nurturing and so much is understandable in light of the parties’ parenting history. I consider the same is true of V.
Issues relating to abuse or unacceptable risk dominate parenting proceedings of this type, but they also frequently illuminate considerations which are directly relevant to the matters enumerated within s 60CC. That is the case here.
Equally, the alternative orders put forward by the mother (and the orders put forward by the Independent Children's Lawyer) also effectively illuminate of themselves some of those relevant considerations.
In that regard, the alternative proposals of the mother in the event that the court does not find sexual abuse has occurred or finds that there is no unacceptable risk of same, sees the children living with her (consequent upon an order for sole parental responsibility) and orders for time in favour of the father which would see him having regular time with the children the quantity of which increases over time. The same is true of school holiday time which increases over a period of two years. Orders sought by the Independent Children's Lawyer are broadly to similar effect, albeit that the speed with which the increase occurs, and the quantity of time, differs.
Each, on the assumption of the findings just referred to, acknowledge implicitly the benefit for the children in having a meaningful relationship with their father and each does not otherwise assert a need to protect the children from harm as a relevant consideration.
So, too, the father contends (in circumstances where the court finds that the mother is not genuine in maintaining her allegations of sexual abuse and/or unacceptable risk), that the children live with him and spend time with the mother. The father seeks (consequent upon a build-up of time over eight months) a situation where ultimately, the children spend equal amounts of time with each parent (from Tuesday to Friday in one week and from Thursday until Monday in the second week). Those proposed orders make the same implicit concessions in respect of each of s 60CC’s Primary Considerations.
The orders also implicitly acknowledge, of themselves, concessions in respect of a number of the Additional Considerations within s 60CC(3).
In particular, they can be seen to effectively assume findings in respect of the nature of the relationship of the children with each of their parents, a capacity of the parents to provide for the needs of the child and the practical difficulty and expense of the children spending time with each parent. So, too, the attitudes to the children and the responsibilities of parenthood demonstrated by each parent.
While the mother, in particular, criticised aspects of the father’s parenting, her orders do not suggest (again absent the findings referred to) that any such parenting deficiencies should sound in orders that, for example, would see the father either not seeing the children or spending supervised time with him. That, in my view, is a proper (implicit) concession.
Her proposed orders can, though, be seen to site the children’s primary care with her and a role of lesser quantity (but not, it should be emphasised, necessarily quality) with their father.
Consideration of all of the evidence and my earlier findings will, I think, illustrate sufficiently that aspects of the father’s personality, what I judge to be deficiencies in insight and a self-focussed view of parenting, lead me to a conclusion that broadly accords with the mother’s position.
I have already referred to the views the children have expressed about spending more time with their father. It will be clear that I recognise that such views as the children express are expressed by yet young children whose level of consequent relative immaturity should be taken into account and result in weight being attributed directly to their views only cautiously.
That said, it is important for the voices of the children to be heard in these proceedings in a manner consistent with their age and maturity. It seems to me clear on the evidence that, while the children have expressed a desire to spend more time with their father (as I find), they nevertheless express a desire to continue to receive their primary nurturing from their mother. I record that I have taken account of their views and that some weight is given to them.
I consider that arrangements for the children to spend time with their father as extensive as what he suggests would be a significant change to their erstwhile circumstances and I consider that any such change may well have a detrimental effect on them. These children have been exposed to almost three years of post-separation conflict between their parents and, as I have said many times in these reasons, are caught in the cross-fire of a very serious set of allegations and counter-allegations.
Consistent with my earlier findings, I do not doubt that the children have been acutely aware of these proceedings and also aware that they are the focus of them. I also have no doubt that they are acutely aware that they are the focus of competing claims and counter-claims by their parents, each of whom they love dearly. I consider that orders which minimise the amount of change to be in their best interests. These children need to, as it were, find their feet, with as much support and as little disruption as possible.
I am not entirely confident that any orders made by this court would be less likely to lead to the institution of further proceedings than any other orders.
I also have some concerns about the mother’s expressed willingness to implement my orders consequent upon findings which, I strongly suspect, she will disagree with. That said, the mother has assured me in evidence that, consequent upon the findings made by me, she will abide them and abide the orders for co-parenting made as a consequence. I propose to take her at her word. I consider that the mother has her children’s best interests at heart and, left to her own parenting devices and free of any dependence upon others, she will seek to do what she says she will do.
Balancing all of the considerations I consider relevant to a decision about the orders that best meet the best interests of these children, I will make orders that broadly accord with the thrust of the orders sought by the mother and the ICL prefaced upon the findings as to abuse and risk which I have made.
I have made some variations to the manner in which time increases as I consider that those variations better take account of the need for the “dust to settle” for these children and to minimise the impact of any change but consistent with my strong view that these children desire more time with their father.
In light of my findings as to the children’s knowledge of these proceedings and what they have been exposed to within them, I consider it appropriate that a person independent of the parents explain the orders in child-appropriate language. I will require the ICL to explain these orders to the children utilising such professional assistance as she might consider appropriate.
I have considered whether some time immediately consequent upon the orders should be supervised, specifically for the purpose of the children adjusting to their new circumstances. However, in light of statements made by the children, as manifest in the evidence of Ms A, I am satisfied that they are not only able to sustain that time without supervision but that they are looking forward to it. However, I consider time should remain supervised until the ICL explains the orders as I will direct which, in turn, I will direct should take place with all possible expedition.
In light of my findings, I see no reason why, as sought by the mother, Mr E should not be excused from his undertaking given on 28 August 2013 that he will not spend time with the children, other than in the company of at least one other adult.
The mother also seeks an order to the effect that the therapy the children are undertaking with (another) therapist should continue. I don’t consider that the circumstances reveal the need for any such order; orders for parental responsibility have been made.
It is frequently said that the requirements of s 121 of the Act can operate to prevent those with a proper interest in the proceedings outside of the parties having access to the court’s reasons. In addition, the repeated lesson emerging from numerous Inquiries throughout Australia about how agencies can better serve children is the need for information to be shared appropriately.
While embracing the protections to which the section is directed, I consider it appropriate, if only to avoid doubt, to make orders providing for a copy of these Orders and reasons to be provided to Dr G, Dr R, Mr D, Mr F, Dr H, Detective J and the Director of any office of the Department of Communities, Child Safety and Disability Services to which a notification has been made in this case.
I order accordingly.
I certify that the preceding four hundred (400) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 23 February 2015.
Associate:
Date: 23 February 2015
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Expert Evidence
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Procedural Fairness
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Appeal
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Remedies
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Standing
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