Tripp and Tripp
[2011] FamCA 598
•28 July 2011
FAMILY COURT OF AUSTRALIA
| TRIPP & TRIPP | [2011] FamCA 598 |
| FAMILY LAW - CHILDREN – Whether children at risk in the care of either parent – Allegations initially made by the mother that the children were exposed to unacceptable risk of harm in the care of the father – Further allegations by the mother that the paternal grandmother had sexually abused the children – Allegations refuted by the father who alleges the children are being emotionally abused by the mother whilst in her care – Allegations also denied by paternal grandmother – Conversations between the mother and youngest child recorded by the mother. |
| Family Law Act 1975 (Cth) |
| Johnson and Johnson (2000) 201 CLR 488 Murray and Tomas and Anor [2011] FamCAFC 81 Antoun v R (2006) 224 ALR 51 RE JRL; ex parte CJL (1986) 161 CLR 342 Brown & Brown [2007] FamCA 493 |
| APPLICANT: | Mr Tripp |
| RESPONDENT: | Ms Tripp |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 7895 | of | 2007 |
| DATE DELIVERED: | 28 July 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Fowler J |
| HEARING DATE: | 22, 23, 24 and 25 March 2010; 18, 21, 28 and 29 June 2010; 20 August 2010; 12 November 2010; 4 and 19 April 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Hausman |
| SOLICITOR FOR THE APPLICANT: | Broun Abrahams Burreket |
| COUNSEL FOR THE RESPONDENT: | Mr Richards with Mr Richardson SC for part of the hearing |
| SOLICITOR FOR THE RESPONDENT: | Paltos Briggs |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Gillies |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
All previous orders with respect to the children of the marriage T born on … May 1998 (T), and B born on … April 2003 (B) (“the children”) be discharged.
The father have sole parental responsibility for the children.
The children live with the father.
In the event that the father proposes:
(a) changing either of the children’s schools
(b) changing the children’s permanent residence
(c) either child having non-emergency surgical treatment or
(d) any other major decisions in the children’s lives
he shall, at least 14 days prior to that event, save in the case of an emergency, advise the mother in writing, so that the mother might have the opportunity of either conveying her agreement or, in the event she does not agree, of her views and reasons for them.
The children shall spend time with the mother as follows:
(a)for a period of six months commencing six weeks after the making of these orders, each Sunday from 10.00 am to 5.00 pm and weekly thereafter, such time to be supervised by P Contact Centre or such other supervision agency as agreed upon between the parties in consultation with the Independent Children’s Lawyer and such supervisions to be at the mother’s cost
(b)for a period of three months thereafter each Sunday from 10.00 am to 5.00 pm, such time to be unsupervised if so recommended by such Single Expert as agreed upon between the parties and in the absence of agreement as nominated by the Independent Children’s Lawyer and
(c)thereafter each alternate weekend from 10.00 am Saturday to 5.00 pm Sunday, if so recommended by such Single Expert as referred to in Order 5(b).
The Independent Children’s Lawyer advise P Contact Centre or such other supervising agency of the reason and need for supervision of the mother’s time with the children prior to the first period of supervised time.
For the purpose of facilitation of Orders 5(b) and 5(c), both parties shall do all things necessary to ensure that they and the children attend upon such Single Expert as referred to in Clause 5(b) above, just prior to the expiration of such time as set out in Orders 5(a) and 5(b).
The father shall immediately engage the services of Ms C, Psychologist, for the purposes of providing the children with therapeutic support surrounding, but not limited to:
(a)the change in their living arrangements
(b)the change in their ability to spend time with the mother
(c)the allegations that have been made regarding the alleged inappropriate actions of the late paternal grandmother
(d)the children accommodating the death of their paternal grandmother and their present view of her
(e)their relationship with their mother and
(f)their relationship with their father.
The father shall ensure the children’s attendance on all appointments with
Ms C, including following directions from her about the frequency with which they should occur.
In the event that Ms C requires the attendance of either of the parties at any consultation each party shall ensure that they so attend.
In the event that Ms C requires the attendance of any other person, the parties shall use their best endeavours to ensure the attendance of those third persons.
The parties are restrained from discussing with the children the consultations that the children might have with Ms C without Ms C’s express consent.
In the event that Ms C is unable to provide or continue to provide family therapy in accordance with these Orders the father shall make enquiries of her as to a suitable alternative practitioner and shall do all acts and things to ensure that family therapy, in accordance with these Orders, continues with that alternative practitioner.
Order 7 is not to be overridden by any written advice of Ms C or any other therapeutic provider pursuant to Order 14.
Each party shall keep the other advised, in writing, of any change to their mobile telephone, land line number, email address or residential address at least 14 days prior to any proposed change NOTING the contents of Order 4, which is not to be overridden with this Order.
Both parties are restrained from denigrating the other parent, or a present or past member of their household or family, in the presence or hearing of the children, and shall immediately remove the children from the presence or hearing of any third person who does so.
The mother is restrained from asking the children questions designed to elicit disclosures from them about sexual, physical or emotional abuse during their time in the father’s care.
The mother is restrained from contacting or communicating by any means, including electronically or through third parties, with the children, except in accordance with these Orders.
The mother and father are restrained from recording electronically any conversation between either of them and the children, or either of them, either by telephone or otherwise, nor any conversation the children, or either of them, have with the other party or any other person, save for any video recording made of the children in a school or social setting.
Within seven days of the making of these Orders, the Independent Children’s Lawyer shall provide to Ms C the following documents:
(a) copies of all reports of Dr M
(b) copies of the judgment of the Court and
(c) a copy of these Orders.
The parties are to advise all therapists working with the children of the appointment of Ms C and to request that they withdraw their services from the girls in an appropriate manner.
The Independent Children’s Lawyer continue to represent the children for a period of twelve months hereafter.
A Family Consultant from the Court be available with the Independent Children’s Lawyer, following delivery of the judgment and Orders, to explain to the children the Orders and what they mean.
IT IS NOTED that publication of this judgment under the pseudonym Tripp & Tripp is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 7895 of 2007
| Mr Tripp |
Applicant
And
| Ms Tripp |
Respondent
And
Legal Aid NSW
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
Before the Court are proceedings between parents with respect to the parenting of the two children of their marriage (“the children”), T, born in May 1998 and now 13 years of age, and B, born in April 2003 and now 8 years of age.
The mother has alleged that the children, in particular B, have been abused.
The question is whether the perpetrator of such abuse is the father, the paternal grandmother or perhaps someone else, or whether there has in fact been no such abuse except in the mind of the mother, and whether in fact the mother, in her pursuit of these allegations and her interrogation of the child B in particular, has herself abused her daughter.
Counsel for the father, calling upon 25 years of experience at the bar, could not find the words to adequately describe the inquisitions perpetrated by the mother on B but later offered the adjective “chilling”.
The Independent Children’s Lawyer described it as “horrific”; but perhaps one would need the pen of a Dickens or an Edgar Allen Poe or the pictorial representation of a Hogath to adequately describe the nightmare that is found in the unrelenting interrogation and treatment of B by the mother, in an inquisition which was conducted by her notwithstanding her own evidence that professionals dealing with children had advised her not to do so.
Despite the mother’s protestations to the contrary, her interrogation of the child was conducted ruthlessly and it demonstrated an obsession on her part with proving that what she thought, without proper cause or perhaps even rationally, to be true, was true.
The mother’s actions demonstrated a lack of capacity for insight and sensitivity, and she betrayed her daughter’s trust by recording the process.
The questioning of the child by the mother took place in circumstances where the child was clearly vulnerable and suffering fatigue from the questioning as well as anguish and distress from the constant repetition of the subject matter.
It is suggested by counsel for the mother that the distress of the child was occasioned by her recall of abuse. The Court rejects that suggestion and finds that it is more probable that the distress of the child was for the reasons referred to above.
The question that then arises is to what extent the responses elicited from the child in the manner outlined above represent any more than a desire by the child that the process cease, a process which has been described as horrifying.
This is a case where the mother initially asserted that the father was the perpetrator of abuse of the children, and then after the trial commenced completely withdrew any assertion that the father presented any unacceptable risk of harm to the children. Her evidence is that she will, notwithstanding that withdrawal, continue to have lingering doubts, despite all the evidence before, and any finding of the Court.
Following the commencement of the hearing and on the fourth day of the hearing, when the mother abandoned any assertion that the father posed an unacceptable risk of harm to the children, the focus of her allegations shifted from the father to the paternal grandmother.
As a result of the mother’s views and actions, there have been reports to the Department of Human Services, Community Services (“DOCS”) and interventions by the Joint Investigation Response Team (“JIRT”), as well as doctors and other healthcare professionals. No official action was taken by those charged with the public responsibility for the welfare of children. Was this negligence or insouciance on the part of the officials concerned, or did it betoken a common view that the allegations lack sufficient substance for them to intervene?
It is thus at issue whether there has ever been a risk of harm to the children from the paternal grandmother. It is clear there could be no further risk from the paternal grandmother, she having died after judgment was reserved.
Is it more probable that the only risk of harm posed to the children is posed by the mother’s anxiety and readiness to build in her mind a hypothesis based on scarce facts and then blindly, and almost mindlessly, pursue evidence in its support using any available method, and all this at great cost to her children’s happiness and emotional wellbeing?
If that is the case, then at issue is whether such a risk of harm to the children can be abated without the loss by the mother of at least the continuing care of the children; and, in that event, the nature of any ongoing relationship between the children and their mother.
This is a matter of concern since, notwithstanding her unconditional withdrawal of her allegations of risk relating to the father, the mother has remained, and on oath said that she will remain, vigilant and concerned and that she continues to harbour doubts about the father.
At issue is what the Court can then do in these circumstances to prevent a recurrence of the trauma and stress occasioned to vulnerable children by allegations made and by the unjustified procurement of the removal of the children from their father’s care based on allegations which are subsequently withdrawn.
The Background Facts
Where, in this judgment, I make statements of fact, they are, unless otherwise specified, my findings of fact.
In 1962, the father was born. He is now 49 years of age.
In 1966, the mother was born. She is now 45 years of age.
In 1992, the father and the mother commenced cohabitation.
In 1994, the father and the mother were married.
In May 1998, the child, T was born. The father asserts that the mother suffered from postnatal depression for which she attended upon a counsellor.
The mother asserts that, in November 1998, T was diagnosed as suffering from kidney reflux.
The mother asserts that, in about 2002, T screamed hysterically and said words to the effect, “Daddy just had his hands around my neck!” She also asserts that, in the same year, conversations with the father took place about T’s clitoris. Dr M reports the mother as saying that the father denied the use of the word “clitoris”, but that T had pointed to that part of her body and said that the father had told her it was a special place which the mother would tell her about later. The Court accepts the father’s version of this event.
In April 2003, the child, B was born.
The mother asserts that, in about 2004, T screamed and said words to the effect, “Daddy just had his hands around my neck. He pushed me”.
In 2004, the children were cared for by the father for a period of one week while the mother was on holiday.
In June 2006, the father and the mother separated. The mother and the children remained at the former matrimonial home, and the father moved into the paternal grandmother’s residence. The children spent time with the father each alternate weekend. They also spent time with him at the paternal grandmother’s residence each alternate Thursday and communicated with him by telephone. The father would also have dinner at the former matrimonial home each Wednesday and stay at the former matrimonial home each alternate week from Thursday night to Sunday night.
The mother asserts that, in June 2006, B said to her words to the effect, “Nana pulled on my hair and didn’t say sorry” and “Nana hit me”.
The mother asserts that, in about June or July 2006, the paternal grandmother locked T out of her residence as a form of punishment. The paternal grandmother’s version of this event is that she did not want T to come into the house through a front door and across a carpet since she had been playing on wet ground. The Court accepts this evidence as truthful.
The father says that, in January 2007, the mother no longer allowed him to stay at the former matrimonial home and the children thus spent time with him at the paternal grandmother’s residence. As requested by the mother, he would collect the children from her driveway or a nearby street.
In January 2007, the mother commenced attending upon Ms G, a psychologist in relation to anxiety and depression.
The father says that, in 2007, Ms Z, a neighbour at the former matrimonial home, said to him that, on a number of occasions prior to June 2007, the mother said to her words to the effect, “I regularly check the girls’ bottoms after they come back from visits with their father and other family members”. The Court accepts Ms Z as a witness of truth.
In March 2007, the father and the mother travelled to Asia for five days. During that time, B stayed with the paternal grandmother and T stayed with the maternal grandmother. The mother asserts that B later said about the paternal grandmother words to the effect, “[She] dug her nails into my leg and it really, really hurt. She squeezed me like this” and, “Nana was mean to me when you were away and Nana hit me”. The father asserts that the mother subsequently requested that the time spent by the children with him take place at the former matrimonial home.
The father says that, in May 2007, the time spent by the children with him again reverted to take place at the paternal grandmother’s residence.
Between 29 June 2007 and 10 July 2007, during the school holiday period, the children spent time with the father. During that time, the father told T to run around a tennis court. The mother subsequently reported this incident to DOCS.
The father says that, in July 2007, the mother brought T to attend upon Ms S, a psychologist in relation to self-esteem and bullying issues. The father says that he had agreed when the mother asked for his consent, but that he later withdrew that consent when he learnt that she had asked for his consent after already taking T to such consultations without obtaining it.
The father asserts that, in August 2007, the mother told him that he was emotionally abusing T and that it would be reported to DOCS. He asserts that she also said to him words to the effect, “You can’t have the children on Thursday nights ... but can still have them for a dinner” and, “You can only ring twice each week now”.
On or about 19 August 2007, the mother made a report to DOCS in relation to alleged emotional abuse of T by the father.
In September 2007, the children spent time with the father for half of the school holiday period at the paternal grandmother’s residence except for three days where they travelled with him to Canberra. T remained with the father until 6 October 2007 and B remained with him until 7 October 2007.
It is alleged by the mother that, on 8 October 2007, B made a number of statements of a sexualised nature to her as outlined later in these Reasons. She alleges that B said to her words to the effect, “Daddy kissed me on the lips” and, “I want to play doctors like with Daddy” and, “You wet your finger and put it in your bottom”. The mother subsequently telephoned the DOCS helpline.
It is alleged by the mother that, on 9 October 2007, B made further statements of a sexualised nature to her as outlined later in these Reasons. She alleges that, at one point, B was wrestling with her and pushed her head down saying words to the effect, “You put your head down like this and you lick it”. She also alleges that, on that evening, T became hysterical screaming words to the effect, “I don’t want Daddy to come tomorrow” and, “Daddy’s not supposed to know” and, “I am going to kill myself”. The mother subsequently telephoned a neighbour who helped to calm T. She says that she then made a full report to her legal representatives and DOCS; that she sought the advice of Ms S; and that she requested that her legal representatives forward the correspondence to the principals of the children’s schools.
On 16 October 2007, the mother’s legal representatives wrote to the father’s legal representatives advising, inter alia, that B had made a number of statements of a sexualised nature to the mother; that a formal report had been made to DOCS; and that initial contact had also been made with the Sexual Assault Unit at Town 1 Hospital. The letter further advised that, in the interim until proper explanation of B’s conduct could be given, the children would not be made available to spend time with the father.
On or about 16 October 2007, notifications were made to DOCS by
Ms S.
On 19 October 2007, the father’s legal representatives wrote to the mother’s legal representatives advising, inter alia, that they were instructed by the father that the children had never been exposed to any activity or discussion of a sexual nature while in his care, and that he was concerned the allegations presented an attempt by the mother to prevent the children from spending time with him. In addition, the father’s legal representatives advised that they considered that it was inappropriate for the mother’s legal representatives to forward the correspondence to the children’s schools. The father’s legal representatives further addressed the specific allegations made by the mother in the Notice of Child Abuse filed by her and advised that the father sought that the children be made available for contact that weekend.
On 22 October 2007, a notification was made to DOCS by a mandatory reporter.
The mother alleges that, on 24 October 2007, B, when getting out of the bath, made further statements to her in relation to being tickled on her bottom. The mother subsequently made a further report to DOCS.
On 5 November 2007, DOCS at Town 1 referred the matter to the Central Coast Health Sexual Assault Centre.
On 14 November 2007, the father filed an Initiating Application in the Family Court of Australia.
On 18 December 2007, the mother filed a Response to an Initiating Application.
The mother asserts that, on or about 20 December 2007, a serious incident involving T occurred. She deposes that T became increasingly distressed and said to her words to the effect, “I know what I can do. I run into the bushes and get bitten by a snake. Then I will jump (sic) down really fast so it kills me quicker”. The mother subsequently telephoned the mental health department at Town 1 Hospital. T was taken to Town 1 Hospital by ambulance and returned home later that day. On the referral of a registrar at Town 1 Hospital, the mother consulted Dr P, a paediatrician.
On 20 December 2007, an Independent Children’s Lawyer was appointed.
On 21 December 2007, the mother filed a Notice of Child Abuse or Family Violence.
On 6 February 2008, Interim Orders were made by consent which provide, inter alia and in summary, that the parents have equal shared parental responsibility for the children; that Dr M be appointed as single expert in the proceedings to prepare a report; that the children spend time, supervised by the paternal grandmother, with the father each Sunday from 10.30 am to
2.30 pm pending receipt of the single expert report; and that there be telephone communication between the children and the father each Tuesday and Thursday between 7.00 am to 7.30 pm.
On 12 May 2008, Dr M produced a single expert report.
On 3 June 2008, the mother’s legal representatives wrote to the father’s legal representatives requesting, inter alia, that T recommence psychotherapy with Ms S. The father says that he agreed that T should recommence psychotherapy as soon as possible, but that he sought instead that T attend upon a psychotherapist nominated by the Independent Children’s Lawyer. A letter to that effect was sent by the father’s legal representatives to the mother’s legal representatives on 6 June 2008.
The father alleges that, on 8 June 2008, there were difficulties in relation to the time spent by the children with him, and that the paternal grandmother accompanied him on that occasion to collect the children. He alleges that, at the conclusion of such time, the mother was upset and, as she attempted to cross the street with the children, she did not hear an oncoming car until the father yelled out.
On 22 June 2008, the father learnt that the mother had been hospitalised.
On 24 June 2008, the father instructed his legal representatives to send a letter to the mother’s legal representatives advising that he wished to care for the children for the period of the mother’s hospitalisation. In addition, issues in relation to the single expert report were raised.
On 30 June 2008, Interim Orders were made by consent providing that, pending further order, the children spend unsupervised time with the father on specified dates between 2 July 2008 and 27 July 2008.
On 29 July 2008, further Interim Orders were made by consent providing, inter alia and in summary, that the children spend unsupervised time with the father each alternate weekend from after school on Friday to before school on Monday, and each alternate Wednesday to Thursday morning. It was further ordered that T commence therapy with Ms H.
The mother says that, in September 2008, T commenced counselling with Ms F.
On 24 December 2008, Final Orders were made by consent in relation to property.
The mother alleges that, in January 2009, B told her that she sleeps in the same bedroom as the father when staying with him and that she dislikes that arrangement. The mother says that she observed B as showing increasing signs of distress at the prospect of staying with the father.
The mother alleges that, in February 2009, B was uncharacteristically wetting the bed.
The mother alleges that, on 2 February 2009, T said to her words to the effect, “I now sleep in Dad’s room and Daddy is sleeping in the room with [B]”.
The mother says that, on 10 February 2009, she brought B to see
Dr D who recommended that B have counselling; that the mother contact the Sexual Assault Service at Town 1 Hospital; and that B attend upon the counsellor there who had previously taught her protective behaviours. The mother alleges that B told Dr D that she did not want to visit the father, saying words to the effect, “I don’t want to sleep together with him”.
On 11 February 2009, the mother’s legal representatives wrote to the father’s legal representatives raising the issue of B having slept in the same room as the father. The father asserts that this occurred because T wished to have her own bedroom and B was initially frightened to sleep in a bedroom alone. On 12 February 2009, the father’s legal representatives wrote in reply to the mother’s legal representatives setting out the circumstances of the sleeping arrangements.
On 13 February 2009, the mother’s legal representatives advised the father’s legal representatives that B would not be made available to spend time with the father as B had a urinary tract infection. The father’s legal representatives subsequently requested that a further meeting between the children and the Independent Children’s Lawyer occur prior to B seeing a counsellor as suggested in Dr D’s letter of 10 February 2009.
On 24 February 2009, the children were interviewed by the Independent Children’s Lawyer, including as to their sleeping arrangements while in their father’s care.
On 27 February 2009, the mother’s legal representatives wrote to the father’s legal representatives advising that B had a recurring urinary tract infection and that she would therefore be unavailable to spend time with the father the following weekend. The father’s legal representatives wrote in reply to the mother’s legal representatives on that day advising that the father believed there to be no reason that B should not spend time with him over the weekend because she had been to school and swimming, and they had discussed plans for that weekend. The father says that he was advised by his legal representatives that no response to their letter was received. B did not spend time with the father that weekend.
On 28 February 2009, the mother brought B to Town 2 Surgery where
Dr I diagnosed B as suffering from ongoing urinary tract infections. This information was communicated in a letter dated 2 March 2009 from the mother’s legal representatives to the father’s legal representatives, in which it was also said that the mother continued to have concerns in relation to the current parenting arrangements.
On 13 March 2009, the children spent time with the father over the weekend. Upon returning from time with the father, the mother brought T to a general practitioner who diagnosed her as suffering from an upper respiratory tract infection, and the mother alleges that B wet her pants three times at school that day and again during the morning of the following day.
On 17 March 2009, B was said to have complained of a vulval sore and vaginal pain. She was referred to Town 1 Hospital, and she was said to have also made certain statements in relation to the paternal grandmother as discussed later in these Reasons. The paediatric registrar was unable to complete a physical examination of B without the authorisation of DOCS.
On 18 March 2009, the DOCS caseworker decided not to issue a request for a sexual abuse medical examination on the grounds that there was insufficient evidence.
On 18 March 2009, the mother’s legal representatives contacted the father’s legal representatives to advise that the children would not be made available to spend time with the father the following day as they were both ill.
On 19 March 2009, the mother’s legal representatives wrote to the father’s legal representatives advising, inter alia, that B was complaining of a vaginal sore or blister, and that Dr D had referred B to Town 1 Hospital as her injuries “may be related to sexual abuse”. The father says that he proceeded to the children’s school to collect them; however they were not there.
On 24 March 2009, the mother’s legal representatives wrote to the father’s legal representatives in relation to the mother’s allegations that B was reluctant to spend time with the father and further issues as to B’s attendance at Town 1 Hospital. The father’s legal representatives responded to that correspondence in a letter dated 30 March 2009.
On 2 April 2009, a divorce order was made. That Decree became absolute on
3 May 2009.
The mother says that, on 3 April 2009, she brought B for a further consultation with Dr D who diagnosed B as suffering from a recurring urinary tract infection and recommended Ms Y as an appropriate counsellor for B. The mother says that she had real concerns about the safety of the children in the father’s care and she believed that she was unable to continue to make them available to spend overnight time with him.
The father says that, on 24 May 2009, the children recommenced spending time with him, having not spent time with him since 16 March 2009 and following agreement that the father’s sister-in-law would act as a supervisor of that time. He says that the children then spent time with him, supervised by the father’s sister-in-law, on most Sundays usually between 9.30 am and 3.30 pm and on Wednesdays usually from after school to 7.30 pm.
On 24 June 2009, the parents and the children were interviewed by Dr M.
On 17 July 2009, B had a session with Ms Y and it is alleged that she said that the paternal grandmother had shown her how to “tickle” her “bottom” with a towel between her legs.
On 1 August 2009, Dr M produced a second single expert report.
The mother alleges that, on 20 October 2009, B made disclosures to her in relation to sexually inappropriate behaviour by the paternal grandmother as discussed later in these Reasons, including B allegedly saying words to the effect, “… Nana punched me in the face and tried to squeeze blood out of me” and referring to playing the “tickle” and “licking” games with the paternal grandmother.
On 21 October 2009, B had a session with Ms Y in which she allegedly said words to the effect that the paternal grandmother, “squeezed blood out and punched her” and “taught her to tickle her bottom and put her head down and lick it”.
On 22 October 2009, the mother made a notification to DOCS in relation to B’s alleged disclosures against the paternal grandmother.
On 30 October 2009, the matter was before the Court for the first day of the Less Adversarial Trial. The father says that it was on this occasion when he first became aware of the alleged sexual incident involving B and the paternal grandmother.
In November 2009, the mother consulted with Dr L, a clinical psychologist.
On 5 November 2009, the mother’s legal representatives wrote to the father’s legal representatives in relation to an alleged incident between B and the paternal grandmother, requesting that the father confirm that the paternal grandmother not be present at future time spent by the children with him. Attached to that correspondence was a file note in relation to the mother.
On 17 November 2009, the father filed an Amended Initiating Application.
On 20 November 2009, B was interviewed by JIRT.
The mother says that, on 25 November 2009, she was advised by JIRT that no finding had been made in relation to the allegations against the paternal grandmother and that they would therefore close the case.
On 3 December 2009, Interim Orders were made by consent providing, inter alia, that the children spend time with the father supervised by a nominated supervisor, until 24 March 2010, being the day before the final hearing of this matter was due to start.
The father says that, on 10 December 2009, he was informed by a JIRT caseworker that B had been interviewed by JIRT; that no finding had been made, and that the case was assessed as being one of “low risk, low priority”.
From 25 December 2009 to 7 January 2010, the children spent time with the father in Queensland supervised by the paternal aunt.
On 31 January 2010, B had a session with Ms Y in which she allegedly said words to the effect, “Nan hurt [T]…” and, “Nan taught me how to put my finger in my bottom and smell it”.
On 31 January 2010, the mother recorded on her mobile telephone a conversation she had with B, the recording of which lasted approximately 15 minutes.
On 1 February 2010, the mother made a notification to DOCS in relation to the paternal grandmother.
The mother says that, on 5 February 2010, she arranged for the children to be interviewed by the Independent Children’s Lawyer following the further disclosures that B was said to have made in relation to alleged abuse by the paternal grandmother and which were said to have been inadvertently overheard by T.
On 5 February 2010, the mother’s legal representatives wrote to the father’s legal representatives again requesting that the father not leave the children in the paternal grandmother’s care.
On 8 February 2010, B had a session with Ms Y in which she allegedly became distressed and shouted at Ms Y words to the effect, “I don’t want to talk about this. I told you all before”.
On 9 February 2010, the mother arranged for T to attend upon
Ms F.The mother says that, on 12 February 2010, an incident involving sexualised behaviour took place between B and her friend in the bath. That evening, the mother recorded several conversations with B lasting approximately
7 minutes and 9 minutes and during which B is said to have made further disclosures to her.On 13 February 2010, the mother recorded a conversation with B lasting 41 minutes and 51 seconds during which B is said to have made further disclosures to her.
On 15 February 2010, the mother recorded a conversation with B lasting 38 minutes during which B is said to have made further disclosures to her.
The mother says that, on 24 February 2010, T was distressed and anxious and crying, and that T did not want to go to the paternal grandmother’s residence. The father also says that T was crying and did not want to go to the paternal grandmother’s residence, and that she said words to the effect,
“I don’t want to see Nana. I know she did things to [B]. I heard her tell Mummy”.On 24 February 2010, the mother’s legal representatives wrote to the father’s legal representatives requesting that, “… in view of the specific disclosures made by [B] in the transcripts of tapes forwarded … in the last few days”, the father provide an undertaking prior to 25 February 2010 that neither child will come into contact with the paternal grandmother on any occasion pending the finalisation of the proceedings.
On 24 February 2010, the mother recorded a conversation with T.
On 26 February 2010, the mother’s legal representatives wrote to the father’s legal representatives requesting that the father provide an undertaking that the children will not attend at the paternal grandmother’s residence or come into contact with the paternal grandmother while in his care.
The mother asserts that, on 1 March 2010, a DOCS caseworker said to her words to the effect, “If you feel the children are in any danger, it is your responsibility to protect them and not send them with their father”.
On 3 March 2010, the mother did not make the children available to spend time with the father as he had not provided an undertaking as requested.
On 15 March 2010, the parents attended upon Dr M for further interview.
On 19 March 2010, Dr M produced a further updated single expert report, which was released to the parties and their legal representatives on 22 March 2010.
On 22 March 2010, the matter came before the Court for final hearing for four days.
On 25 March 2010, interim Orders were made in relation to the care of the children pending the final determination of this matter. Those Orders provided, inter alia, that the father be restrained from bringing either child into contact with the paternal grandmother; and that, subject to the father taking up the accommodation offered by a Mr W, the children live with the mother and spend time with him each alternate week from after school on Friday to after school on Tuesday. It was further ordered that the children spend seven consecutive days with the father during the forthcoming school holiday period. The Court also noted the undertakings of the mother and the father that each of them will not electronically record any conversation with either child.
The matter was further heard on 18, 21, 28 and 29 June 2010; 20 August 2010; 12 November 2010; 4 and 19 April 2011.
On 21 July 2011 at a brief mention of the matter, the Court was informed by both parties that the paternal grandmother had died.
The Orders Sought by Each Party
On the final day of the hearing, the father indicated that he seeks orders pursuant to his amended minute of order filed on 13 December 2010. In summary, he seeks the following orders:
·that the father have sole parental responsibility for the children
·that the children live with the father
·that the children not spend time with the mother for a period of six weeks from the date of the Orders
·that, upon the conclusion of the initial period of six weeks from the date of the Orders, the father facilitate telephone and email contact between the children and the mother on one occasion each week for a period of six weeks
·that, upon the conclusion of the second period of six weeks, the children spend two hours during daytime each week with the mother in a public place supervised by an adult nominated by the father for a period of six weeks
·that, upon the conclusion of the third period of six weeks, the children thereafter spend time with the mother, during the school term, each alternate week from after school on Thursday to before school on Monday; for one half of each school holiday period; and on special days
·a provision for the mechanics of changeover
·a restraint upon the father from bringing the children into contact with the paternal grandmother, except under supervision by a nominated adult, for a period of six months unless otherwise advised by a professional providing therapeutic assistance to the children
·a requirement that the mother attend upon a psychiatrist or therapist as recommended by the single expert or the Independent Children’s Lawyer
·that the father attend upon the Independent Children’s Lawyer with the children to have the Orders and Reasons explained to them
·that the father arrange for the children to each attend upon a counsellor, psychologist, psychiatrist or therapist as recommended by the single expert to address any issues arising for them, including any issues in respect of their relationship with the paternal grandmother, and that he provide to such counsellor, psychologist, psychiatrist or therapist copies of the Reasons for Judgment and the single expert reports and
·a restraint upon each parent from recording any conversation by telephone or otherwise between either child and any other person save for video recording of either child in a school or social setting.
The mother, in summary, seeks the following orders pursuant to her minute of order filed on the final day of the hearing:
·that the parents have equal shared parental responsibility for the children
·that, from the date of the Orders, the children spend time with the father, during the school term, each alternate week from after school on Friday to before school on Tuesday; for one half of each school holiday period; and on special days
·that, upon the commencement of the first school term in 2012, the children spend time with the father, during the school term, each alternate week
·a condition that the above parenting arrangements not commence until the father is living in a permanent home with a “stable environment”
·a provision that the children not be brought into contact with the paternal grandmother until B is 11 years of age
·provisions for the continuation of the current counselling arrangements for the children
·a requirement that the Independent Children’s Lawyer explain the Orders to the children
·a provision that the father attend upon a family therapist with the mother for the purpose of family therapy
·a provision requiring each parent to provide the other parent with current contact details
·a provision for the communication by each parent to the other parent of any illness or injury suffered by either child
·a provision for the mechanics of changeover
·provisions for the communication by each parent to the other parent of school reports and other information regarding the children and
·provisions restraining the denigration of either parent in the presence or within the hearing of either child.
The Independent Children’s Lawyer offered no suggestion as to the orders which should be made, but made submissions on the evidence.
The Issues to be Determined
Counsel for the Independent Children’s Lawyer identified, in summary, the following issues to be determined in this matter:
a)whether the children are at an unacceptable risk of harm in the father’s care; and, if so, the nature of that risk, the person who poses that risk and the orders which might be made to ameliorate that risk
b)if the children are at an unacceptable risk of harm in the father’s care, whether they should spend time with him; and, if so, the basis on which they should do so
c)whether the children are at an unacceptable risk of harm in the mother’s care; and, if so, the nature of that risk, the person who poses that risk and the orders which might be made to ameliorate that risk
d)if the children are at an unacceptable risk of harm in the mother’s care, whether they should live with the father; and, if so, the time they should spend with the mother and the conditions upon such time
e)whether each parent is able to emotionally parent the children and
f)any other orders which might be made, for example in relation to counselling, and which might assist the parents and the children in moving forward from the hearing.
The Evidence
Affidavit Evidence of the Father
The Father’s Affidavit filed 2 March 2010
Following the parties’ return from Asia in March 2007, the father deposes that the mother telephoned him and said words to the effect, “[B] told me that Nanna hit her”. The father says he spoke to his mother who denied the allegations, and when he spoke to B and asked her if the paternal grandmother had hit her at any time, B was said to have smiled and said, “Yes, here, here, here and here” whilst patting her arm, leg, bottom and head and then laughed out loud and said, “Only joking”. Following these allegations the father recommenced spending time with the children at the former matrimonial home.
In relation to the first sexual abuse allegations involving B, the father says he had spoken to the mother on the telephone two days earlier and that she did not mention the disclosures said to have been made by B to the mother, whereby B was said by the mother to have made a number of statements to the mother of a sexualised nature and which indicated B had been exposed to inappropriate conduct.
The father denies having ever played with B in a sexualised way or behaved in any way which was likely to have exposed B to inappropriate conduct. In his affidavit the father addresses the specific matters raised in the Notice of Child Abuse or Family Violence filed by the mother on 21 December 2007. The Court finds the father a witness of truth and accepts his denial.
It was alleged by the mother that on the evening of 8 October 2007 B said to her, “Daddy kisses me on the lips”. The father says it was his custom to kiss the children on the cheek or forehead. It is his evidence that in the October school holidays B spoke about “kissing boys on the lips” and she attempted to kiss the father on the lips when saying goodnight. On one occasion when the father attempted to kiss B on the cheek B deliberately moved and kissed the father lightly on the lips and boasted to T that she had done so. The father said that after being told not to by him, B did not attempt to kiss him on the lips again.
It was further alleged that B said, “I can kiss my bottom. Do you want me to show you?”, and started to pull down her pyjama pants and then said, “I was only joking”. The father deposes that he has never heard of B speaking of this.
In addition, it was alleged in the Notice of Child Abuse or Family Violence that B said, “I want to play doctors like with daddy” and put her mouth on the mother’s finger and said, “You wet your finger and put it on your bottom”. The father says he has played ‘doctors’ with B and that she enjoys playing with her two doctors sets, but that there was never any undressing or play of a sexualised nature. The Court accepts that this is so.
Between 7 October 2007 and 6 February 2008, the father says his time with the children was limited to seeing B at her Kindy Christmas concert; four hours on Christmas Day supervised; two hours on 18 January 2008 at the C Contact Centre in Town 3; and four hours on 2 February 2008 supervised by the father’s sister-in-law.
The father deposes as to difficulties in relation to the supervision requirements in the interim consent Orders of 6 February 2008, in particular that on several weekends the children did not spend time with the father as the father’s sister-in-law was unavailable and the mother did not agree to an alternative supervisor. He says difficulties also arose because the mother refused to collect the children at the conclusion of the father’s four-hour period with them.
Following the release of Dr M’s first report, the father says there were difficulties with the arrangements for the children, including whether the requirement for supervision was still current, and in circumstances where the father contends that the mother demanded that the father’s sister-in-law be present at T’s birthday party to supervise the father’s time with the children.
In addition, the father asserts that the children were distressed by the mother’s behaviour including her yelling, “I’m calling the police”, when he arrived at the former matrimonial home to collect them. In addition, the father contends that as far as he is aware no response was received by his solicitors in relation to his proposal in relation to T attending upon a psychotherapist as nominated by the Independent Children’s Lawyer, given Dr M’s recommendations in her first report. The father says he was concerned that the mother was failing to accommodate those recommendations of Dr M, to the disadvantage of the children.
Further difficulties were said to have occurred on Sunday, 8 June 2008. The father deposes that the father’s sister-in-law offered to go with him to collect the children, and that upon their arrival at the mother’s home, the mother spoke to the father through the window and said, “I’m not letting the children out until [Ms S Tripp] comes up here” and that both children looked concerned. The father says that the father’s sister-in-law informed the mother of an address known to her in Town 4 where they would be and from where she could collect the children.
However, the father says that the mother then arrived at the father’s sister-in-law’s home and when they weren’t there demanded that the father drive with the father’s sister-in-law and the children to meet her there. The father alleges the mother then grabbed B, was enraged and yelling at him, including words to the effect, “You disgust me, the truth’s going to come out. Every time you change the arrangements you upset the kids”. He says the mother attempted to hastily cross the street with the children and the father had to yell to warn her of an oncoming vehicle. The father’s evidence is that this incident caused the children distress.
Further interim Orders were made on 29 July 2008, and the father says that until mid-March 2009 he largely saw the children in accordance with those orders. On 11 February 2009 the mother’s solicitor wrote to the father’s solicitor raising the issue of the father having slept in the same room as B. The father’s evidence is that this occurred as a consequence of T’s wish to have her own bedroom, as she and B regularly argued about their different preferences in relation to having the light on and the door open. Consequently, the father set up the spare room for T however B said, “Daddy if I get frightened can I sleep in your bed like I do with Mummy?” and the father said that she could not, but that he would sleep in the other bed until she got used to the new arrangements and was no longer scared.
Prior to the first sexual abuse allegations the children slept in the father’s room (a converted rumpus room with three beds) at Town 5, following a request by them to do so. After the allegations the children shared a bedroom and the father occupied a spare room. The Independent Children’s Lawyer interviewed the children on 24 February 2009, during which time the Independent Children’s Lawyer found them comfortable with an arrangement that they sleep in the same room in separate beds.
The father’s legal representatives received a letter from the mother’s legal representatives on several occasions in February 2009 indicating that B would be unavailable to spend time with him on the following weekend due to suffering a urinary tract infection. On 27 February 2009 the father requested that his legal representatives write to the mother’s legal representatives in response to a letter received by them on the same date, as he says he considered there was no reason she should not spend the weekend with him, as he was aware that she had attended school and had been swimming. His evidence is that he was advised by his legal representatives that no response was received, and he did not see B on that weekend.
On 4 March 2009 when the father collected the children from school he said B told him that she had missed him and had wanted to stay with him but that the mother told her she had an ear infection. That evening he says he heard B say to the paternal grandmother, “Did you really whack [T]?” The father says B has told him she would like to spend more time with him. The father returned the children to school on Monday, 16 March 2009 and thereafter did not see the children until Sunday, 24 May 2009.
On 18 March 2009, as the father was going to the children’s school to collect them he says he learned that neither child was available to see him as they were both ill. The following day the father says he learned of B’s referral to Town 1 Hospital in relation to her complaint of a vaginal sore or blister. The father says he met with B’s teacher on 19 March, and was informed that with the exception of one occasion B had expressed that she was very happy to see the father.
The father denies having ever sexually abused either of the children. In a letter dated 30 March 2009 sent by his legal representatives to the mother’s legal representatives, the father outlined his concerns for the wellbeing of the children. In that letter he gave his consent for B to attend counselling as approved by the Independent Children’s Lawyer and he also sought confirmation that the mother was receiving treatment.
It is the father’s affidavit evidence that as far as he is aware no communication was received from DOCS or JIRT following the notification to them. The father says, however, that he agreed to there being a supervisor during this time with the children in circumstances where it was agreed that an updating report from the single expert was to be obtained, and where he said the mother would not make the children available to be with him at all, including at Easter 2009 and on B and the father’s birthday, in circumstances where the mother said she formed the view that she was unable to make the children available to spend overnight time with the father.
The father further asserts that delays on the mother’s part in her agreeing on a supervisor, pending the receipt of Dr M’s report, resulted in him missing out on spending two weekends with the children.
From 24 May 2009 the father spent time with the children on most Sundays usually between 9.30 am and 3.30 pm and on Wednesdays usually from after school until 7.30 pm. These times were supervised by the father’s sister-in-law. On occasions the father says that one or both of the children were withheld from him without any real explanation. It is also the father’s evidence that there was delay in him receiving medical reports in relation to the children.
The father denies that the children were reluctant to spend time with him, as he says the mother asserted in a letter from her legal representatives dated
28 October 2009. He says on 27 September 2009 T said to him, “Why don’t you dress up as Mrs Doubtfire and that way you can take care of us and we’ll see you more” and that B also said to him on 30 September 2009 that she wanted to see more of the father, and put to him a proposal which would mean “… we can see each other more and Mum will never know.”
In relation to the alleged incident between B and the paternal grandmother, the father says he was contacted by JIRT on 10 December 2009 and, amongst other matters, was informed that B had been interviewed, that the allegations were not substantiated and the matter would not be pursued. He says he was also told that the caseworker concluded that nothing had happened to B and that the dreams she spoke about were not real.
It is the father’s evidence in his affidavit that he considered the timing of the allegations to be strategic. For example, he says that the second sexual assault allegation coincided with him changing the girls’ bedrooms and his mother’s departure to New Zealand in March 2009.
Since the making of the interim Orders of 3 December 2009 the father deposes that the children have spent time with him largely in accordance with those orders. However, the father says that on two occasions the mother made arrangements for T to be at a friend’s house on Wednesdays, without consulting the father.
In addition, he says that telephone contact with the children on Tuesday and Thursday nights has largely been unsuccessful. There were also previously said to be difficulties in relation to telephone contact, it being asserted by him that when he telephoned the children on Sunday, 26 April 2009 the mother interrupted the phone calls, including telling B to convey to the father that she had to go. When the children are in close proximity to the mother then he says the telephone calls often only go for minutes and are often interrupted by the mother. However, when the children are in their bedrooms he says the conversation is candid and lengthier.
When the father and his brother collected the children from school on
24 February 2010 the father said T appeared subdued and tense and that in the car she began to cry and yelled out, “I don’t’ want to see Nanna. I know she did things to [B]. I heard her tell Mummy” and that B said, “No [T] don’t” and “No [T] don’t say that”. The father says he reassured the children and that T later cheered up and gave the father a hug and told him she loved him.
It is the father’s evidence that the children enjoy their time with him, and that the children tell him this and are openly affectionate towards him, often competing for his attention and telling him that they miss him and wish they could stay longer. He says that B in particular is fond of the paternal grandmother and that, not long after the mother’s allegations that the paternal grandmother hit B, the father says B saw the paternal grandmother whilst at a shopping centre and ran over and hugged her.
The father asserts that the mother isolates the children from him, and apart from not facilitating contact, gives examples which include, but are not limited to, failing to pass on messages left for the children, cutting short phone calls saying “The phone is about to cut out”, and failing to answer his calls during the required time on Tuesday and Thursday evenings.
The father expresses concern in relation to what he says appears to be a disproportionate number of school absences for illness, and asserts that whilst some can be attributed to genuine sickness, he believes on other occasions they have been used by the mother as a means of preventing the father having contact with the children and says he worries that the mother’s
“… preoccupation with health issues may be impacting adversely on the children”, including in circumstances where she has taken them to various doctors in relation to the child abuse allegations.
In addition, the father alleges the mother has engaged in conduct that is detrimental to the children, including monitoring their phone conversations with the father and interrupting them; influencing the children to the extent that they will not answer innocent questions such as “where are you?”; and falsely claiming that the children do not wish to see the father.
The father says he wants to continue to live in his mother’s four-bedroom home in Town 5 until he is able to purchase his own property. He proposes that the children continue at their current schools with a change when T commences High School.
It is noted that in oral evidence the father has procured alternate accommodation to his mother’s home through the kindness of a friend.
Affidavit Evidence of the Mother
The Mother’s Affidavit Filed 17 March 2010
The mother swore and filed an affidavit on 17 March 2010.
Therein, the mother deposes that, prior to separation, she was the primary caregiver of the children. In relation to T, she deposes that, after T’s birth to when T was nine months of age, she was solely responsible for T’s care. She deposes that, thereafter, the father commenced assisting her with T’s care for approximately six hours each week. In relation to B, she deposes that, after B’s birth to when B was six months of age, she was solely responsible for B’s care. She deposes that, from thereafter to when B was two years of age, the parents shared responsibility for B’s care. She deposes that, as and from when B was two years of age and commenced day care, neither T nor B was regularly left in the father’s sole care.
The mother says that, prior to separation, she had concerns about the relationship between the father and T. She recounts three incidents. The first incident is said to have occurred in or about 2002. She says that, on that occasion, T and the father were in a room of the matrimonial home. She says that she heard T scream hysterically and that she ran into the room. She says that T yelled, “Daddy just had his hands around my neck”; and that the father appeared agitated, but denied the allegation.
The second incident is said to have occurred in or about 2004. She says that, on that occasion, T and the father were in T’s bedroom. She says that she heard T scream and cry. She says that she heard T say, “Daddy had his arms around my neck. He pushed me”; and that the father appeared angry, but denied the allegation.
The third incident is said to have occurred when T was four years of age. She says that, on that occasion, the father said to her, “I just want to let you know [T] asked me about her clitoris, she pointed to her clitoris and said, ‘What’s this Daddy?’ I said, ‘That’s your special place, Mummy will tell you about that’”.
The mother deposes that, since separation, she has continued to be the primary caregiver of the children. She deposes that, immediately prior to separation, the parents agreed that the children would live with her; and, that they would spend time with the father in a two-week cycle and for half of each school holiday period. She deposes that these arrangements were not successful. She deposes that, since separation, the children have lived with herself and that, pursuant to consent Orders of 3 December 2009, they have spent supervised time with the father. She further deposes that the father pays child support as assessed at $30 per week and one half of the children’s school fees.
The mother deposes that, since immediately prior to separation, she had concerns about the children spending time with the father at the paternal grandmother’s residence. She recounts two incidents. The first incident is said to have occurred in June 2006. She says that, on that occasion, B said to her, “Nana hit me”, “We went to … lunch Nana pulled my hair and she didn’t say sorry” and, “It happened when Daddy took [T] horse riding and I stayed with Nana, she hit me and said, ‘I don’t like you any more [B]’ and she shouted at me to ‘go away’”.
The second incident is said to have occurred a couple of days after the children returned from spending time with the father at the paternal grandmother’s residence. The mother says, on that occasion, T said to her, “… I was outside playing with … the dog … Nanna was standing inside looking at me … I was pointing at the lock. Nann wouldn’t let me in”, “… I said to Nanna, ‘Nanna didn’t you see me I was trying to get inside why didn’t you open the door?’ Nanna said to me, ‘Because I am still very angry with you … You are very naughty’” and, “I went and told Dad, he told me to go and apologize to Nanna”.
The mother deposes that she increasingly became anxious about the father’s care of the children at the paternal grandmother’s residence. She recounts further incidents that are said to have occurred post-separation. She says that, in November 2006, T said to her, “… I asked Daddy for food, he said, ‘lift up your top’ and when I did he said, ‘no you can’t you’re too fat’”. She says that, on or about 13 July 2007, T said to her, “When I was with Daddy he said, ‘tomorrow you are going to run ten laps of the oval’” and, “The next day … I had to run around the tennis court … He kept telling me to hurry up. [B] … was yelling at me, ‘Hurry up or you will be in trouble’”.
The mother deposes that she increasingly became concerned about T. She says that T had increasingly become self-conscious about her appearance and weight. She says that, accordingly, she took T to see Dr D, a general practitioner. She says that, on the recommendation of
Dr D, she subsequently took T to see Ms S, a child psychologist. She says that Ms S said to her, “I am obliged by law to notify the child protection authority. You should telephone Department of Community Services …” She says that, accordingly, on or about 19 August 2007, she made a formal report to DOCS. She says that, in late 2007, T exhibited signs of serious emotional disturbance. She says that, on or about 20 December 2007, T said, “I know what I can do. I run into the bushes and get bitten by a snake. Then I will jump [up] and down really fast so it kills me quicker”, and that she subsequently took T to the Mental Health Department at the Town 1 Hospital. She says that, on the referral of a Registrar at the Town 1 Hospital, she consulted Dr P, a paediatrician. She says that Dr P advised her, “I would recommend that further enquiry be undertaken into possible sexual abuse … My preferred option would be for T to undertake counselling”. She says that T exhibited distress about the father and spending time with him.
The mother deposes to a number of disclosures made by B post-separation as to sexual abuse by the father. She says that, on 8 October 2007, after the children had returned from spending half of the school holiday period with the father, B said to her, “Daddy kisses me on the lips”. She says that B then said to her, “I can kiss my bottom. Do you want me to show you?” and that B started to pull down her pyjama pants. She says that B later said to her, “I want to play doctors like with Daddy”; and that B mouthed the mother’s finger and said, “You wet your finger and put it on your bottom”. She says that, when she tried to clarify what B was saying, B said, “I don’t want to talk about it. I was only joking”, but said, “The kissing on the lips is really, really true”. The mother says that, on 9 October 2007, she said to B, “What was that game called again you played last night?” and that B responded, “I don’t want to play that with you”. She says that B then tried to push her head down, saying, “You put your head down like this and you lick it”. The mother says that, on 10 October 2007, she said to B, “Tell me more about that game” and that B responded, “Maybe later upstairs in my room just you and me”. The mother says that, on 24 October 2007, after B had a bath and when she was drying B, B said to her, “I’ll tickle my bottom” and that B tickled close to her vagina. She says that she later asked B, “Does Daddy tickle you on the bottom” and that B responded, “Yes”.
The mother says that she was “stunned and shocked” and “extremely confused” by the disclosures made by B as to sexual abuse by the father. She says that, on 8 October 2007, she telephoned the DOCS helpline anonymously. She says that, between 15 October 2007 and December 2007, she telephone DOCS approximately five times and the Town 1 Hospital Child Protection Services approximately four times. She says that, on 16 October 2007, she advised DOCS that she wished to make a formal report. She also says that, on that day, she telephoned Ms S, seeking professional assistance.
The mother deposes that, at all times post-separation, she has had serious concerns about the safety and well-being of the children.
The mother deposes that, on many occasions post-separation, both children have demonstrated a reluctance to spend time with the father. She says that, on these occasions, she encouraged them to spend time with him and reassured them about doing so.
The mother deposes that, from the end of January 2009, she became increasingly concerned about B’s distress about spending time with the father. She says that, often before or after B spent time with the father, B regularly wet herself; that B experienced disturbed sleep; that B complained of severe stomach aches; that she observed a vaginal discharge in B’s underpants; that B complained of a vaginal sore; that B appeared depressed; and, that B’s behaviour became aggressive and volatile. She says that, on 9 February 2009 and subsequently, she notified the father by email of her concern in this regard. She says that, subsequently, she took B to see Dr D, a general practitioner. She says that, during the consultation with Dr D, B said without prompting, “I don’t want to go with Daddy …” and that, when she asked for what reason, B said, “Because I don’t want to sleep together with him”. She says that, on the recommendation of Dr D, she took B to see D at the Sexual Assault Service at Town 1 Hospital. She says that, on 13 February 2009, she took B to see Dr B at the Town 2 Surgery who diagnosed B with a urinary tract infection. She says that, on 28 February 2009, she took B to see Dr I at the Town 2 Surgery who diagnosed B with an ongoing urinary tract infection. She says that, on 17 March 2009, on the recommendation of Dr D, she took B to the Emergency Admission at Town 1 Hospital, and that the Paediatric Registrar was unable to examine B without the authorisation of DOCS. She says that, on 3 April 2009, she again took B to see Dr D who diagnosed B with a recurring urinary tract infection. She says that, on the recommendation of the Paediatric Registrar and Dr D, she took B to see Ms Y, a counsellor. She says that, “In the absence of any assistance from DOCS/JIRT or the Independent Children’s Lawyer I believed that I was unable to continue to make the children available to spend time overnight with [the father]”.
The mother deposes that she did not believe that the paternal grandmother was an appropriate supervisor of the children’s time with the father in all of the circumstances. She deposes that, prior to separation, she had a cordial relationship with the paternal grandmother; however, post-separation, she became increasingly concerned about the relationship between the paternal grandmother and the children. In relation to the relationship between the paternal grandmother and B, she says that, in March 2007, B said to her, “Nana dug her nails into my leg and it really, really hurt. She squeezed me …” and, “Nanna was mean to me when you were away and Nanna hit me”. She says that, on 17 March 2009, B said to a paediatric nurse at the Town 1 Hospital, “Nana tried to squeeze blood out of me. Nanna punched me in the face” and, “No it was a dream. I dreamt it all and you dreamt it too”. She says that, on 20 October 2009, B said to her, “It’s not like when Nanna punched me in the face and tried to squeeze blood out of me” and, “No, that was a dream, or I think it was a dream or I made it up”, and that when she asked about ‘bad times’, B said to her, “Yes the bad times” and, “Yeah but it’s not like a tickle, it doesn’t really feel like a tickle”. She says that, on that date, when she asked about licking, B also said to her, “You put your head down and you lick it”, and that, when she asked about with whom B plays such games, B said to her, “Nanna”. She says that, on another occasion, B said to her, “I am petrified of Nana”. In relation to the relationship between the paternal grandmother and T, she says that T also expressed concerns about the paternal grandmother and spending time with the paternal grandmother.
The mother deposes that, on 20 November 2009, she made formal notification to DOCS in relation to the ‘disclosures’ B made as to the paternal grandmother. She says that, on 1 March 2010, Ms J, a DOCS caseworker advised her, “If you feel the children are in any danger, it is your responsibility to protect them and not send them with their father”. She says that, on 1 February 2010, she made a further formal notification to DOCS.
The mother deposes that, on 31 January 2010, B spoke to her about the paternal grandmother. She recorded part of the conversation between them. The mother deposes that, on 12 February 2010, she observed B in the bath with a friend, bending over and pushing her buttocks towards her friend’s face. She recorded part of the subsequent conversation between B and herself. The mother deposes that, on 13 and 15 February 2010, B again spoke to her about the paternal grandmother. On those dates, she recorded part of the conversations between them. The mother deposes that, on 24 February 2010, T spoke to her about the paternal grandmother. She recorded part of the conversation between them.
The mother deposes:
I do not know what to make of [the children’s] conduct …[or] [B’s] disclosures or her sexualised behaviour. Since the commencement of these proceedings I have done everything possible to protect my children including consulting with and seeking the advice of appropriate DOCS case workers, health workers and paediatricians.
The mother deposes to a number of occasions post-separation on which the children were unable to attend on time with the father.
The mother deposes that, since January 2007, she has consulted on average once each month with Ms G, a psychologist in relation to symptoms of anxiety and depression. She also deposes that, on the recommendation of
Dr D, a general practitioner, she takes each day an anti-depressant. She further deposes that, in November 2009, on the recommendation of her legal representatives, she consulted with Dr L, a clinical psychologist; firstly, in relation to distress resulting from these proceedings and the issues raised in the report of Dr M and subsequently, in relation to further disclosures made by B.
The mother deposes that, generally, T is “progressing particularly well”. She deposes that T has continued to consult once each month with Ms F with whom T has a good rapport. She deposes that T’s relationship with the father had been improving. She deposes that T does not have a close relationship with the paternal grandmother.
The mother deposes that, generally, B has been “progressing well”. She deposes that B has continued to consult on average twice each month with Ms Y, a counsellor with whom B has a good rapport. She deposes that B’s relationship with the father had been improving. She deposes that B’s relationship with the paternal grandmother has been “wary and fractious”.
Affidavit Evidence of Ms Z
An affidavit was filed on behalf of the father by Ms Z on
16 April 2008. Ms Z and her partner reside next door to the former matrimonial home at Town 6.
Ms Z deposes that the mother has regularly visited her home following her separation from the father, and that the mother has informed her she was suspicious that the children were exposed to inappropriate sexual behaviour.
On one occasion prior to June 2007 she deposes that the mother said to her words to the effect, “I regularly check the bottoms of the girls after they have come back from visits with [the father] and other family members.” It is her evidence that the mother has repeated this statement to her on several occasions.
On 9 October 2007 Ms Z deposed to having received a call from the mother who said to her words to the effect, “[T] is out of control and very upset. I don’t know what to do.” The deponent went to the mother’s house and says she could hear T screaming hysterically upstairs and had shut herself in the wardrobe. It is Ms Z’s evidence that the mother told her T was upset because she didn’t want to go to a counselling session the following day because the father would be there. However, the deponent says she did not hear T herself say that this was the case.
Ms Z further said that in January 2008 the mother said to her that she was so concerned about T’s behaviour one Saturday night in the Christmas holidays that she called the mental health department at Town 1 Hospital to seek assistance, and an ambulance was called. The mother said T refused to speak to the male ambulance officers and then another ambulance was called in addition to police.
Affidavit Evidence of the Father’s sister, Ms L Tripp
The paternal aunt filed an affidavit on behalf of the father on 2 March 2010.
The paternal aunt acted as a supervisor of the father’s time with the children from 25 December 2009 to 7 January 2010, during which time they travelled to and from Queensland.
She deposes that during their time together the children were happy and clearly had a lot of fun, and says they enjoyed holidaying in Queensland and loved their time with the father. Throughout the visit she says she saw that the father prepared healthy meals, with the exception of times when they were unable to bring their own food, such as when visiting theme parks. She deposes that the father dealt with the children’s occasional behavioural problems with great patience.
The paternal aunt said T was always eager to do any activity and enjoyed the variety of theme parks and other activities such as kayaking and swimming. Whilst B was initially very timid, for example in going on theme park rides, by the end of the holiday she was eager to join in the activities.
On the last evening of the holiday she said they went to her favourite Thai restaurant and the children wore their favourite dresses and kept asking for their photos to be taken, and that all night B wanted to be next to the father and was kissing and hugging him.
The paternal aunt says that whilst the children knew they could call their mother at any time, they did not request to do so, but would call her when the father suggested to them that they do so.
Affidavit Evidence of the Father’s brother, Mr LL Tripp
Mr LL Tripp, the father’s brother, filed an affidavit on 2 March 2010. He is married to Ms S Tripp (“the father’s sister-in-law”), who has acted as a supervisor of the father’s time with the children between 6 February 2008 and 29 July 2009 and from 15 May 2009 up until the date of deposing the affidavit on 1 March 2010.
In his affidavit he says that from 9 December 2009 to date he has supervised some of the father’s time with the children as one of the nominated supervisors in the orders of 3 December 2009, and in relation to which he filed an Undertaking.
In his affidavit he describes a pattern in which the children initially seem guarded at the commencement of contact, but that after a short period they “loosen up, becoming happy, affectionate and effusive” and happily argue and play with each other and their cousins also. Similarly, when greeting the paternal grandmother, the children were said to initially appear standoffish and disrespectful, and that T is sometimes intentionally rude, but that after a short period their behaviour moderates and they enjoy her company and include her in activities.
Affidavit Evidence of the Father’s sister-in-law, Ms S Tripp
The father’s sister-in-law filed an affidavit on 2 March 2010.
She deposes to having acted as a supervisor of the father’s time with the children from 6 February 2008 to 29 July 2008 and from 15 May 2009 up until the date of deposing the affidavit on 1 March 2010. She filed an undertaking in relation to her role as a supervisor and in her affidavit she sets out her observations of the children on occasions she has acted in that capacity.
In her affidavit she says that from 9 December 2009 to date she has supervised the children’s time with the father on a number of Wednesdays and over four weekends from 9.00 am Saturday until 4.00 pm Sunday.
When collected from their home she described the children as being “quiet, tense and withdrawn” and are reluctant to look up, smile or wave and rarely greet the paternal grandmother with a kiss and sometimes do not acknowledge her at all. She says they eventually brighten and relax and always appear to have fun with the father and are affectionate towards him, and the father reciprocates this. The children are said to be more friendly and happy when collected from school instead of the mother’s residence.
She deposes that “[b]oth girls very obviously enjoy being with [the father] and spending time together, playing games, swimming in the pool, playing board games and other suitable activities.” The father also takes the children and the supervisor on outings, such as bushwalking and bike riding.
The children are said to be well behaved, although they will sometimes intentionally aggravate each other. T is said to get along well with the deponent’s daughter, who is of a similar age. The father’s sister-in-law deposes that in the last few months B has been more self-confident.
Affidavit Evidence of the paternal grandmother, Ms J Tripp
The paternal grandmother filed an affidavit on 3 March 2010.
She deposes that the father moved into her home at Town 5 following his separation from the mother in June 2006, and she thus saw the children during their time with the father.
In March 2007 she cared for B whilst the parents were in Asia, and the maternal grandmother cared for T.
She deposes that the following day after the parents returned the father said to her words to the effect, “I’ve been speaking to [the mother], and she tells me that [B] said you hit her. Is that true?” and in response she says she told the father that this had not occurred. In her affidavit the paternal grandmother says she was very upset and shocked at the allegation. She said she spoke to the mother on four occasions following the accusation and the mother did not speak to her about the allegation.
Without adumbrating all the conversations which took place, the father’s counsel said of the conversations:
the fact is that they demonstrate a lack of concern in the mother for the child’s high level of distress, her pleas, to stop the questioning and her total fatigue. It is the opinion of [Dr M] that the mother’s level of determination would lead her to go to almost any ends to achieve what she wants to do.
The mother did not accept that she should have stopped the questioning when the level of distress had gotten so high.
During a conversation on 12 February 2010 which commenced at 9.30 pm the transcript notes that B was crying and very distressed. Despite this the mother continues to question B about the incident in the bath with U, asking, “So you said it was easier to show somebody than talk about it. Hmm? It’s okay. Hmmm?” and, “Do you want to say anything about that? About what’s happened?, to which B responded, “No, I don’t…”. The conversation then changes to talking about B’s wobbly teeth and a friend coming over in the morning. The mother then reintroduces the topic and continues to question the child about the incident despite B telling her that she wants to go to sleep.
As a further example, during the conversation on 15 February 2010 and which commenced at 8.53 pm, B was crying as the mother continued questioning her for several pages of the transcript, including questioning the child in relation to her behaviour when in the bath with her friend.
During the conversation on 28 February 2010 the mother continued questioning B for several pages of the transcript. B is further distressed, yelling and crying and says whilst crying, “I don’t want to say it”, “… You already know, and I don’t want to say it!”, “I’m too tired I don’t want to talk about it”.
Counsel for the father described the interrogation as “chilling” and Dr M said in her evidence, “yes they [the recordings] made me angry … that she would do that and it’s so late at night when a child is very vulnerable”.
Under cross-examination by the father’s counsel, when the recordings of conversations between B and the mother were played, the mother concedes that the form of the conversation she had with B is probing from her part. She also concedes that she reintroduced certain topics or subjects from time to time, and also that she had at times continued to question B when she had started to whimper or cry.
In reference to the conversation recordings the mother was asked by the father’s counsel why she didn’t stop the conversation when B said “no” in answer to some questions and said she couldn’t remember anything. The mother responded, “Because, I suppose, I wanted to know more”.
Further, with regard to the mother’s questioning of her daughter, the following exchange occurs with the father’s counsel:
Has it ever crossed your mind that these discussions that have recorded by you, and I’m talking about all of them, in any way constitute a form of abuse – psychological or some sort of emotional abuse of your daughter? --- I think – well, I’m not a professional and I probably stuffed up on a few things – yes – emotional abuse for [B], no. I think, in some way it’s like a healing for her …
… Has it ever occurred to you that if the grandmother has never visited sexual abuse upon your daughter, [B] – if, in fact, the grandmother never acted improperly in a sexual way---? --- Yes
--- that [B’s] mind may forever be tainted? --- I would …
Has that occurred to you? --- Yes. It has occurred to me.
Under cross-examination by the Independent Children’s Lawyer the mother concedes that she has placed the children under intense pressure during the course of the proceedings; that she has placed B under intense pressure in relation to the disclosures made about the paternal grandmother; and that she had been given advice by professionals not to pressure B and that her actions, as demonstrated by the recorded conversations, were contrary to that advice.
I consider that the actions of the mother in subjecting the child to such questioning, late at night and at times when the child was clearly fatigued and distressed and vulnerable raise serious questions as to the mother’s capacity to provide for the child’s emotional needs.
In her affidavit evidence, the mother deposed that T experienced distress after overhearing a conversation between the mother and B.
Dr M in her third report asserts that:
the mother has a history of instability including treatment with antidepressants and psychotherapy. Her exact diagnosis is academic but she obviously suffers from mood disorder requiring treatment. She strongly identifies with the children particularly [B] making it difficult for her to separate her identity and give [B] the space to be herself.
The Court has difficulty in accepting that this mother can provide for the emotional needs of these children on a consideration of the whole of the evidence. The father, it seems, whilst having some earlier insensitivity in relation to T, has gained insight; and the Court finds that it is now likely that he will be able to provide for the needs of his children emotionally.
The parents each can provide for the children’s physical needs and their intellectual needs.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
It is the mother’s evidence in her affidavit filed on 17 March 2010 that T’s self-confidence and social skills have continued to improve and that, other than the circumstances which are at issue in these proceedings, B has been progressing well, both academically and socially.
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
These children are not Aboriginal or Torres Strait Islander children.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
In his affidavit sworn and filed on 2 March 2010, the father set out a history of the parents’ relationship and matters in relation to the children and their care, including his involvement in arrangements for their care.
In relation to T, the father deposed to having spent the first three weeks after she was born at home assisting the mother, including bathing, feeding, changing and settling her.
It is the father’s evidence that the mother suffered from postnatal depression and that, at times, this resulted in him playing a greater role in caring for T.
From the time T was nine months of age, the father says that he delivered and collected her from day care three times per week and stayed with her when she was hospitalised. Following B’s birth, the father said that he also assisted as much as possible with her care and cared for both children during periods when the mother was away.
The father details the events after the parents’ separation, including in relation to his contact with the children. Between June 2006 and January 2007, the father says that he stayed at the former matrimonial home from Thursday to Sunday in each week and the mother would go to Sydney on those days. In August 2006, the father says that the mother requested that he no longer have dinner at the former matrimonial home on Wednesday nights and thus he instead took the children out to dinner, and in January 2007 he says that the mother requested that he no longer go to the house and instead collect the children from the driveway of the former matrimonial home for them to then spend time with him at the paternal grandmother’s residence. At around the same time the mother also stipulated that the father could only telephone the children every second night.
The father provides details of how the mother changed contact arrangements with the children again in July 2007. The mother requested that the children no longer stay the night at his place on Thursdays. From that time the father would collect the children on Thursdays after school, have dinner with them and take them back to their mother at 7.00 pm. The father continued to have the children live with him every alternate weekend, but the time was reduced from Thursday to Sunday to Friday to Sunday.
On 6 February 2008, Orders were made that contact between the father and the children be supervised. The father obeyed these Orders despite on occasion not being able to spend time with his children as the supervisor, the father’s
sister-in-law, was unable to undertake the supervision due to other commitments. The father deposes that despite requests made through his legal representative for other people to undertake the supervisory role when the father’s sister-in-law was not available, his proposals were either rejected or no response was received.
Further, the father’s evidence is that difficulties arose when the mother refused to collect the children at the conclusion of the four-hour supervised period the father had with them, despite reaching agreement that this would be the arrangement. The father deposed that, as a result of this, one hour of that four hour period was spent travelling between Town 4 and Town 6.
Since separation, the father has pursued a continuation of his relationship with the children notwithstanding the difficulties occasioned by these proceedings. He has obeyed the Orders of the Court and proceeded quietly through the matter to its conclusion. He has demonstrated in the difficult circumstances a continuing care for his children and his commitment to fulfil his responsibilities as a parent in the face of allegations that he may have behaved inappropriately with his youngest daughter. He has been restrained, confident and determined. He has undertaken, at significant personal cost, relocation and the continuing conduct of these proceedings.
The mother has continued since separation to engage in a process which reflects, if not a deliberate attempt to limit the children’s time with their father, a process which has had that effect. Her conduct may well be the product of her over-anxiety, but whatever the cause, not only has the father borne a cost in time, money and emotion but so has the mother and perhaps the children’s paternal grandmother.
Regrettably, it is the children that each of these parents love who have also been adversely affected by the process engaged by the mother, which does not display insight into the effective fulfilment of the parental responsibility to promote a meaningful relationship with the father and keep the children from the possibility of psychological harm which can attend children caught in conflict between their parents.
(j) any family violence involving the child or a member of the child’s family
Apart from the father pushing a child onto a bed, which he concedes, there is no acceptable evidence of violence at the hands of the father. There is no acceptable evidence of violence at the hands of the paternal grandmother. The father has gained insight into the way in which he engages with his children and has left the Court feeling confident that there will be no repetition of that one incident. The mother, in the view of the Court, has been guilty of psychological violence to her child B in her interrogation of her.
(k) any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
There is no such order.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The Orders that are proposed to be made in these proceedings are, in the Court’s view, the best that it can do to avoid further proceedings consistent with the need to protect the welfare of these children. The Court has serious concerns, particularly until the mother has effective help, that it can be sanguine that there will be no further litigation between these parents. It can only hope that they will bear in mind not only the cost to them in time, money and emotion of such litigation, but more particularly the cost to the children of it. It is to be hoped that, in the future, if they disagree, they can refer the matter to alternative dispute resolution and find ways of effectively communicating with one another. A continuation of the present arrangements of care, in the view of the Court, is at this time more likely to lead to continuing litigation than the Orders the Court proposes to make.
(m) any other fact or circumstance that the court thinks is relevant
In her report of 12 May 2008, Dr M considered that the mother and the father each provide different models of care and that it is important that the children benefit from each of these models. It is not the Court’s intention by the Orders which it makes to deny to these children on a long-term basis the benefit of such diversity, but there needs to be a period of time and therapeutic intervention before that can be achieved with safety.
Section 60CC(4) & (4A)
I have already touched on a number of matters which fall for consideration under this heading, including that the father has demonstrated that he wants to be involved and has taken the opportunity to participate in making decisions about the major long-term issues in relation to the children and the opportunity to spend time and communicate with the children. He has also fulfilled his obligations to support the children. The mother has, on occasion, failed to facilitate the time to be spent by the children with the father and the communication between the children and the father, even in the face of Court Orders.
Balancing the s 60CC Considerations
Balancing the matters set out in s 60CC and the evidence recited in these reasons, I find that the Orders I propose will operate to foster the best interests of these children for the reasons specified above.
Section 61DA
This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. It requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for them.
The presumption does not apply where there has been family violence. In this case, there has not been family violence as has been set out earlier.
Notwithstanding that there may have been family violence, it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the children.
The section further provides in subsection (4) that the presumption may be rebutted if it is determined to not be in the children’s best interests.
In this case, there is reason for the presumption not to apply and that reason is to be found in the present inability of the parents to effectively communicate with each other. In the Court’s view, such is the animosity created in their history that it will be some time before they are able to effectively communicate with each other. These children do not need the important decisions about their lives to be the subject of further dispute and disagreement between the parents.
Given the circumstances of this case, it appears to the Court that the parent with whom the children are to primarily live should exercise sole parental responsibility for them. That does not mean, and an Order will be made to this effect, that the parent exercising such sole parental responsibility should not inform the other parent of proposed decisions and hopefully in time receive and consider relevant input from the other parent in the decision-making process. The Court considers that such an Order is in the best interests of these children.
Section 65DAA
This section requires me to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility.
The Order I propose to make will not be one for equal shared parental responsibility.
The Orders to be Made
Dr M, in her report dated 19 March 2010, suggests that:
… If the parties were still able to negotiate week and week about … I feel this would be a reasonable way of resolving contact and care responsibilities. If the mother is not willing or able to share care with the father or if this produces further escalation in … unfounded allegations of abuse, then the children would be best placed with their father on a full time basis with regular contact with the mother …
Dr M, in her oral evidence, preferred the children to live with the father notwithstanding the difficulties which might flow from such a change. In her report dated 19 March 2010, she takes the position which is not departed from in her oral testimony:
I think the mother has the potential to destroy the children’s relationship with their father and his family in fear that the children could be harmed by them and that she could lose their allegiance.
Whilst the father recognised that a removal of the children from their mother’s care might entail short-term difficulties, it is the long-term benefit that must be sought for them.
The Court is not confident that long-term damage might not be visited upon the children in the mother’s care.
The Court therefore proposes to make the Orders in relation to parenting as set forth above which will promote the best interests of these children at this time.
Further Matter
In these proceedings, an Application in a Case was filed by the mother on
16 August 2010 in which Orders were sought that I be disqualified from any further hearing of this matter and that the trial be aborted. Consequential orders were also sought.
The application was filed following an interim judgment in this matter which was delivered on 5 August 2010. That judgment should be read in association with this judgment.
Paragraph 1 of the reasons for that judgment provides as follows:
During the course of these proceedings the mother procured, it appears contrary to the provisions of the Surveillance Devices Act 2007 (NSW), recordings of interviews between the Court-appointed independent expert, [Dr M], and the children of the marriage.
It is the mother’s assertion that the contents of that paragraph are an illustration of prejudgment which gives rise to an apprehended bias. It is on that basis that disqualification is sought.
This case is one to which the provisions of Division 12A of Part VII of the Act applied. Section 69ZR provides that the Court has the power to make determinations, findings and orders at any stage of the proceedings, those being child-related proceedings. In particular, subsection (1) provides as follows:
(1)If, at any time after the commencement of child‑related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following:
(a)make a finding of fact in relation to the proceedings;
(b)determine a matter arising out of the proceedings;
(c)make an order in relation to an issue arising out of the proceedings.
Note: For example, the court may choose to use this power if the court considers that making a finding of fact at a particular point in the proceedings will help to focus the proceedings.
Further, subsection (3) provides as follows:
(3)To avoid doubt, a judge, Judicial Registrar, Registrar, Federal Magistrate or magistrate who exercises a power under subsection (1) in relation to proceedings is not, merely because of having exercised the power, required to disqualify himself or herself from a further hearing of the proceedings.
The expression of an opinion as to the appearance of conduct is, in the Court’s view, a fortiori able to be made without requirement for disqualification. The decision of the Full Court in Murray and Tomas and Anor [2011] FamCAFC 81 followed a hearing in which the Court’s attention was not directed to the operation of s 69ZR nor, it appears, were the proceedings to which the provisions of Part 12A applied. The Court considers that each of these matters is relevant to the consideration of the mother’s application and supports its dismissal.
If the Court is wrong in that view, the general law on the question of disqualification by reason of apprehended bias is expressed by the High Court in Johnson and Johnson (2000) 201 CLR 488 at paragraph 11 per Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ as involving a consideration of “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”. The test was expressed by their Honours (at paragraph 5) as involving a two step process: the first step being the identification of matters said to give rise to the apprehended bias, and the second step being the consideration of the logical connection between the matters identified and the possibility, real not remote, of a deviation from the course of deciding the case on its merits. The plurality went on the say
(at paragraph 13) that:
… the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation.
Such exigencies of modern litigation often involve matters as contemplated by Part 12A and s 69ZR of the Act, and often involve the making of determinations and findings at various stages of the proceedings.
The question then is whether the statement in the reasons for the judgment of
5 August 2010 gives rise to a reasonable apprehension of bias. Counsel for the mother submitted that the contents of paragraph 1 represent “a clear adverse statement about the propriety of the conduct of a party”.
In Antoun v R (2006) 224 ALR 51 at paragraph 29 it was said by Kirby J that:
A line is drawn between forthright and robust indications of a trial judge’s tentative views on a point of importance in a trial and an impermissible indication of prejudgment that has the effect of disqualifying the judge from further conduct of the proceedings. Sometimes that line will be hard to discern …
Counsel for the mother suggests in his written submissions that the statement was “intemperate” and that it was made despite neither party seeking such a finding, and which involved a serious allegation. That submission is rejected.
It is noted that the statement is indeed temperate and merely talks of the mother’s conduct having an appearance of that contrary to the legislation. It is also not, in my view, a clear adverse statement, but a matter which, because of the facts raised in that interim application, were required to be considered.
On that point, counsel for the mother considers that the statement was made by the Court independently of any findings sought by either party. The Court takes the view that even if a specific finding on this issue were not sought it was inextricably linked to the issue before the Court.
This case is illustrative of those cases involving fairly lengthy parenting proceedings where there are serious allegations; and, although the statement is the subject of complaint by the mother, it cannot be said that the making of the statement will mean the case will be approached other than with an unprejudiced mind, noting in particular that the matter had already proceeded for some days.
In considering that further, in RE JRL; ex parte CJL (1986) 161 CLR 342 at 371, Dawson J considered that “… the whole of the circumstances must be considered and such a conclusion must be firmly established and should not be reached lightly”. His Honour went on (at 372) to say:
Moreover, the whole of the circumstances are not confined to the conduct said to afford reasonable grounds for suspecting a lack of impartiality. They include what was done by the judge subsequently, which may be sufficient to eradicate any reasonable apprehension of bias.
A fair-minded lay observer would find that the statements were made out of necessity to deal with the issues raised by that application, namely the existence of recordings and the issue of whether the Court should exercise its discretion in making a copy of the recordings and the transcript available to the single expert, Dr M, irrespective of whether it was sought that a finding be made in relation to any alleged illegality or otherwise.
His Honour Mason J said (at 352):
It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.
Justice O’ Ryan in Brown & Brown [2007] FamCA 493 considered the aspects of the decision of the High Court of Australia in Ebner v Official Trustee in Bankruptcy; Clenae Pty Limited v Australia and New Zealand Banking Group Limited (2001) 205 CLR 337 and said (at 206):
Whilst a concurrent situation has not arisen in this case, this passage serves to highlight that public interest considerations, which in this case involve things such as the time and money which would be incurred by another judge familiarising him/herself with the matter (especially in light of its complication and length), the implications for the administration of justice as a result of potential perceptions of ‘judge shopping’ (especially as I have already made final orders adverse to one party) and so on, are significantly relevant to the determination of apprehension of bias problems.
At the time that I made the Orders dismissing the application made, this case had proceeded for a period of eight hearing days, and his Honour’s remarks seem to me, if more were needed, to confirm that the interests of the administration of justice also supported the decision that I have made.
It is for these reasons set out above that I made the orders in relation to that application.
I certify that the preceding three-hundred and ninety-nine (399) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 28 July 2011.
Associate:
Date: 28 July 2011
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