Velika & Macena
[2022] FedCFamC1F 268
•27 April 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Velika & Macena [2022] FedCFamC1F 268
File number(s): BRC 9444 of 2020 Judgment of: CAREW J Date of judgment: 27 April 2022 Catchwords: FAMILY LAW – CHILDREN – UNACCEPTABLE RISK – MAGELLAN – Where the mother alleges the father has sexually abused the children – Where the mother originally sought a positive finding of sexual abuse against the father – Where during the trial the mother conceded the evidence would not meet the Briginshaw civil standard of proof –Where the mother no longer seeks a positive finding of sexual abuse against the father – Where the mother seeks final orders that the father poses an unacceptable risk of sexual harm to the children – Where the father alleges the mother invented allegations of sexual abuse against him – Where the father contends the mother’s allegations constitute an unacceptable risk of emotional and psychological abuse to the children – Where the father seeks the children live with him – Where the independent children’s lawyer recommends the children live with the mother and spend supervised time with the father – Where the Court orders the children live with the mother and spend supervised time with the father – Where the Court orders the mother have sole parental responsibility. Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions Act) 2021 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Baghti & Baghtiand Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Bant & Clayton (2019) FLC 93-924
Briginshaw v Briginshaw (1938) 60 CLR 336
Hazeldell Ltd v Commonwealth (1924) 34 CLR 442
Johnson & Page (2007) FLC 93-344
N and S and the Separate Representative (1996) FLC 92-655
M v M (1988) 166 CLR 69
Number of paragraphs: 155 Date of hearing: 7 – 11 February 2022 Place: Brisbane Counsel for the Applicant: Mr Anderson Solicitor for the Applicant: Simonidis Steel Lawyers Counsel for the Respondent: Mr Kennedy Solicitor for the Respondent: Beck Legal Group Counsel for the Independent Children's Lawyer: Ms Carmody Solicitor for the Independent Children's Lawyer: Smithson Lawyers ORDER
BRC 9444 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS VELIKA
Applicant
AND: MR MACENA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAREW J
DATE OF ORDER:
27 APRIL 2022
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The mother shall have sole parental responsibility for the children X born … 2012 and Y born … 2013.
3.When making a decision about major long-term issues, the mother shall:
(a)Inform the father of the decision to be made;
(b)Invite written comments from the father;
(c)Consider any comments of the father when making the decision; and
(d)Inform the father of the decision made.
4.The children shall live with the mother.
5.The father shall spend time with the children at all times agreed between the parents in writing and failing agreement as follows:
Subject to paragraphs 6 and 7 herein:
(a)from 10am to 4pm each fourth Sunday commencing on Sunday 1 May 2022 or such other Sunday as agreed in writing;
(b)from 10am to 4pm on Christmas Day 2022 and each alternate year thereafter;
(c)from 10am to 4pm on Easter Sunday 2023 and each alternate year thereafter;
(d)from 10am to 4pm on Fathers’ Day each year.
6.The time spent with the father pursuant to paragraph 5 (a) – (d) shall be supervised by Ms C, the paternal grandmother or such other person as agreed in writing between the parents but only upon the paternal grandmother or such other person as agreed, filing an undertaking with this Honourable Court in the following terms:
I [full name and address] undertake to supervise the children when they are spending time with the father and for this purpose the children will remain in my sight and hearing at all times when the father is present.
I have received legal advice about the consequence of breaching this undertaking and willingly provide it.
7.If a supervisor is not available pursuant to paragraph 6 herein the father’s time with the children shall occur under supervision at B Contact Service if they have availability and any cost associated therewith will be borne by the father.
8.Unless otherwise agreed between the parents, changeovers shall occur at B Contact Service and any cost associated therewith will be borne by the father.
9.Each parent shall:
(a)Keep the other informed of any change of mobile number or email within 24 hours of such change;
(b)Not denigrate the other parent or their partner to or in the presence or hearing of the children;
(c)Not abuse, harass or intimidate the other parent;
(d)Inform the other as soon as reasonably practicable of any serious accident, illness or emergency involving the children and the name of the treating doctor or medical facility;
(e)Not discuss these proceedings with the children nor allow the children to read any document relating to these proceedings.
10.This order authorises the father to obtain directly from the children’s school any report cards, photographs or other documents usually available to parents at his cost.
11.The mother may obtain a Passport for the children and may sign all relevant documents, including Applications for such Passports for the children solely and the requirement for the father’s consent is dispensed with.
12.Should the mother wish to travel with the children overseas she must provide to the father at least 2 months prior to any travel the following:
(a)A detailed copy of the itinerary for the trip including the dates of travel, the addresses of each place where the children will be staying and a contact phone number;
(b)A copy of return airflight tickets for the children;
(c)Details of any internal flight tickets whilst travelling.
13.Unless otherwise agreed in writing by the parents, the mother shall:
(a)Ensure the children only travel to countries that are a signatory to the Hague Convention on the Civil Aspects of International Child Abduction;
(b)Ensure the children do not travel to countries where there is a travel warning above level 1 (exercise normal precautions);
(c)Only travel during times when the children are ordinarily in her care.
14.The father shall not consume illicit substances nor drink alcohol above the legal driving limit for at least 24 hours prior and during any time the children are in his care (see notation to this Order below).
15.The mother shall not leave the children alone with Mr E (see notation to this Order below).
16.Pursuant to Section 65DA(2) of the Family Law Act 1975 (Cth) the particulars of the obligations this Order creates and the particulars of the consequences that may follow if a person contravenes this Order are set out in “Parenting Orders – obligations, consequences and who can help” and these particulars are included in this Order.
NOTATION
A.The injunction restraining the father from consuming illicit substances in the period 24 hours prior and during any time the children are in his care should not be taken as this Court condoning the consumption of illicit substances at any other time.
B.It is noted that the mother consented to the order restraining her from leaving the children alone with Mr E.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Velika & Macena has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:
Ms Velika (“the mother”) and Mr Macena (“the father”) are the parents of two children, X aged 9 years and Y aged 8 years. The mother contends that the father poses an unacceptable risk of sexually abusing the children if he spends time with them alone. The father contends that the mother has encouraged the children to invent allegations of sexual abuse against him. He contends that such actions constitute an unacceptable risk of emotional and psychological abuse and accordingly advocates for the children to live with him.
For the reasons which follow the children will continue to live with the mother and spend supervised time with the father for up to six hours each fourth Sunday.
WHAT PARENTING ORDER IS PROPOSED BY EACH PARTY?
At the time the trial commenced, the mother was seeking a positive finding that the father had sexually abused the children and was opposed to the father spending any time with or communicating with the children. By the end of the evidence, the mother’s position had changed. The mother no longer seeks a positive finding of sexual abuse but rather, contends that the father poses an unacceptable risk of sexually abusing the children. The difference between these two positions, which will be discussed in detail later in these Reasons, reflects a recognition by the mother that the evidence relied upon by her, could not meet the standard of proof required for a positive finding that the father has sexually abused the children. The mother nevertheless contends that the father poses an unacceptable risk of harm to the children, not only in relation to possible sexual abuse but also because of his history of excessive alcohol consumption and marijuana use. However, the mother no longer opposes the father spending time with the children, on condition that it is supervised.
Specifically, the mother now proposes that the father spend time with the children in City D for four hours on a Sunday, no more than once per month, and proposes that the maternal grandmother supervise or, if she is unavailable, then supervision be provided by B Contact Service, where the father’s time with the children is currently supervised. The mother also proposes that she have sole parental responsibility.
The father denies any history of sexually inappropriate conduct with the children and, while conceding a history of, at times, excessive alcohol consumption and marijuana use, denies that this history has impacted adversely on the children or is likely to impact adversely on the children in the future. If it is found that the mother’s actions create an unacceptable risk of emotional or psychological harm or, if the mother is found not to be able to facilitate the children spending time with the father, he contends that the children should live with him.
Specifically, the father primarily proposes that the children live with him and that the mother spend alternate weekends and half school holidays with the children. He further proposes that he have sole parental responsibility. The order sought by him including in the alternative (i.e. if the children remain with the mother) is set out in his Amended Response filed 17 January 2021.[1] The father did not specify an order for his time with the children in the event he is found to pose an unacceptable risk of harm to the children.
[1] During the trial, counsel for the father further amended the heading above paragraph 43 by changing the word “father” to “mother”.
The independent children’s lawyer (“ICL”) recommends that the children continue to live with the mother and spend time with the father on alternate Sundays supervised by the paternal grandparents and/or B Contact Service. The paternal grandfather was not a witness in the case and there is no indication that he would be prepared to be a supervisor. The precise terms of the order recommended by the ICL are set out in Exhibit 17 and includes a recommendation that the mother have sole parental responsibility.
The parties were invited to confer and reach agreement about ‘specific issues’ e.g. communication, changeover, overseas travel etc. (taking into account the different findings that might be made). The parties did not do so and made limited submissions about such matters.
ISSUES
During the trial the parties revised the list of significant issues requiring determination and they are as follows:
(1)Does the father pose an unacceptable risk of sexually abusing the children?
(2)Does the father pose an unacceptable risk to the children by reason of his alleged misuse of marijuana and/or alcohol?
(3)If the father does pose an unacceptable risk of harm, can that risk be ameliorated by long term supervision?
(4)Has the mother encouraged the children to invent allegations of sexual abuse against the father?
(5)If the Court finds that the father has not sexually abused the children and does not pose an unacceptable risk of harm to them, will the mother facilitate a meaningful relationship between the children and the father?
The mother’s change of position has already been noted earlier in these Reasons. Importantly, the mother’s concession that the father should spend supervised time with the children was made irrespective of a finding that the father poses an unacceptable risk of harm.
I note that despite the mother alleging a history of family violence by the father against her, the mother does not contend that the father poses a future risk to the children by reason of that alleged history.
Before turning to consider the issues in this case, it may be helpful to provide some background to the dispute and set out the law by which parenting disputes are determined.
BACKGROUND
The mother is 37 years of age and the father is 45 years of age. The parents commenced cohabitation in 2010, married in 2013 and separated in early 2016. They are divorced.
They have two children. X was born in 2012 and Y was born in 2013.
The mother works as a public servant where she has an administrative role. The mother and the children live in City D and the children attend the F School. The mother is not currently in a relationship but she was in a relationship with Mr E (“Mr E”) and they lived together from 2018 to 2020. They remain friends. Mr E works as a fly in fly out worker.
The father works full time in hospitality in City R and contends that, if the children do not live with him but he is nevertheless permitted to spend time with the children, he will relocate to City D. He has not re-partnered since separating from the mother.
At the time of separation, the parents and children were living in City R. Shortly after separation, the mother unilaterally relocated to City D with the children. The mother applied for a protection order on 11 February 2016 and the father consented to a final protection order on 5 August 2016, without admission. The order remained in place for 12 months. No further protection orders have been made.
After separation, the father initially spent time with the children supervised by his mother. He commenced proceedings in the Federal Circuit Court of Australia (now known as the Federal Circuit and Family Court of Australia (Division 2)) on 31 March 2016, and after a final hearing in October 2016 a ‘final’ parenting order was made on 10 February 2017 that the children live with the mother and spend time with the father on alternate weekends until he relocated to City D whereupon his time was to increase to week about.
When the father relocated to City D in mid-2017 the mother immediately offered to commence week about time. The father was not in a position for that to occur and by the time he was ready, the mother opposed week about, and re-commenced court proceedings on 19 December 2018.
A second ‘final’ parenting order was made on 8 March 2019, by consent, providing for the children to live with the mother and spend five nights per fortnight with the father. That parenting arrangement continued largely uninterrupted until 7 June 2020.
The mother suspended the father’s time with the children as a result of statements made by the children to her and others suggestive of sexual abuse of them by the father. On 11 August 2020, the father commenced spending supervised time with the children at B Contact Service, a private organisation providing supervision for parents spending time with their children. The father has continued to spend two hours each fortnight with the children since that time.
The mother re-commenced court proceedings on 20 July 2020 in the Federal Circuit Court of Australia and on 15 September 2020 the proceedings were transferred from that court to this Court.
The police investigated the mother’s allegations of sexual abuse and in the process interviewed the children multiple times. No criminal charges were brought against the father.
The Department has had no involvement with this family.
JURISDICTION
The first question every judicial officer must answer is whether or not they have jurisdiction to quell the dispute between the parties.[2]
[2] Hazeldell Ltd v Commonwealth (1924) 34 CLR 442 at 446.
Contrary to many misconceptions in the public domain, this Court (formerly known as the Family Court of Australia) have not been merged or amalgamated with the Court formerly known as the Federal Circuit Court of Australia. The names of the courts have been changed, but the courts continue to exist as separate and distinct courts as is apparent by s 8 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the new Act”) which provides as follows:
(1)The federal court known immediately before the commencement day as the Family Court of Australia is continued in existence as the Federal Circuit and Family Court of Australia (Division 1).
(2)The federal court known immediately before the commencement day as the Federal Circuit Court of Australia is continued in existence as the Federal Circuit and Family Court of Australia (Division 2).
This Court continues as a superior court of record and the other court continues as a court of record.[3] There is provision for each court to have a head of jurisdiction (the Chief Justice in this Court and the Chief Judge in the other court)[4] who are required to work cooperatively.[5] Currently the Chief Justice of this Court holds a dual commission as Chief Judge of the other court as permitted by ss 21 and 129 of the new Act.
[3] Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the new Act”) ss 9 and 10.
[4] Ibid.
[5] The new Act ss 70, 75, 193, 216.
The definition section in the new Act may have added to the confusion in some circles. It includes a definition for the “Federal Circuit and Family Court of Australia” as meaning the Federal Circuit and Family Court of Australia (Division 1) or the Federal Circuit and Family Court of Australia (Division 2).[6]
[6] The new Act s 7.
As the current proceedings were commenced in the Federal Circuit Court of Australia (as that court was then known) and transferred to this Court prior to 1 September 2021, one must look to the saving and/or transitional arrangements to ascertain whether this Court has jurisdiction in the current circumstances.
Until 1 September 2021 (the commencement day) the original jurisdiction of this Court was conferred by s 31 of Part IV of the Family Law Act 1975 (Cth) (“the FLA”) and relevantly included jurisdiction “with respect to …matters arising under this Act”. The jurisdiction with respect to parenting applications was a matter previously conferred on this Court by s 69H of the FLA and was therefore a matter arising the Act. Part IV of the FLA was repealed by Item 36 of Schedule one of the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions Act) 2021 (“the CATP Act”) with effect from 1 September 2021 and s 69H was amended by Items 92 – 94 of the CATP Act (removing reference to the Family Court and replacing with Federal Circuit and Family Court of Australia Division 2).
Importantly, Item 229 of Schedule 1 of the CATP Act relevantly provides as follows:
The amendments of the Family Law Act 1975 … made by this Schedule apply in relation to a proceeding commenced before, on or after [1 September 2021]”.
(Emphasis added)
The original jurisdiction of this Court is now largely dependent upon proceedings being transferred to it from an inferior court (the Federal Circuit and Family Court of Australia Division 2). Section 25 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the new Act”) confers jurisdiction on this Court as follows:
(1)The Federal Circuit and Family Court of Australia (Division 1) has original jurisdiction:
(a)if a matter, being the subject of a family law or child support proceeding, is transferred to the Court by the Court under section 51—as set out in paragraphs 132(1)(a), (b), (c) and (d); or
(b)if a matter, being the subject of a family law or child support proceeding, is transferred to the Court by the Federal Circuit and Family Court of Australia (Division 2) under section 149—as set out in paragraphs 132(1)(a), (b), (c) and (d); or
(c)as is conferred on the Court, or in respect of which proceedings may be instituted in the Court, by any other Act.
A family or child support proceeding is defined by s 7 of the new Act and means “proceedings in respect of which the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction under section 132”.
Section 132 of the new Act provides as follows:
(1)The Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction:
(a)with respect to matters in respect of which proceedings may be instituted under the Family Law Act 1975; or
(b)with respect to matters arising under the Marriage Act 1961 in respect of which proceedings (other than proceedings under Part VII of that Act) are instituted under that Act; or
(c)with respect to matters arising under a law of a Territory (other than the Northern Territory) concerning:
(i) the adoption of children; or
(ii)the property of the parties to a marriage or either of them, being matters between those parties referred to in the definition of matrimonial cause in the Family Law Act 1975; or
(iii)the rights and status of a person who is an ex‑nuptial child, and the relationship of such a person to the person’s parents; or
(d)as is conferred on the Court, or in respect of which proceedings may be instituted in the Court, by:
(i) the Child Support (Assessment) Act 1989; or
(ii) the Child Support (Registration and Collection) Act 1988.
On its face the plain meaning of the relevant provisions in the new Act and the CATP Act is to remove the jurisdiction of this Court in all matters instituted before 1 September 2021 i.e. pending as at that date. Such an absurd result is contrary to the intention of the legislature as expressed in the Explanatory Memorandum for the CATP Bill 2019 (at [5]) which states the following:
5.For the avoidance of doubt, any first-instance proceedings on foot in the Family Court or the Federal Circuit Court as at the date of commencement of the FCFC Act would be heard in the FCFC (Division 1) or the FCFC (Division 2), respectively. This arrangement appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and the Federal Circuit Court as the FCFC (Division 2) under the FCFC Bill.
In a recent case stated to the Full Court in Nevins & Urwin,[7] it now seems to be resolved that this Court does indeed have jurisdiction in matters pending in it as at 1 September 2021 although the Reasons for Judgment in that decision are yet to be delivered.
[7] Nevins & Urwin NAA 59 of 2022 (unreported).
WHAT LAW GOVERNS THE DETERMINATION OF PARENTING DISPUTES?
Every parenting decision requires the application of the relevant parts of Part VII of the FLA which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[8]
[8] Family Law Act 1975 (Cth) (“the FLA”), s 65D.
A ‘parenting order’ is defined in s 64B of the FLA and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility; and
(d)…
(e)The communication a child is to have with another person or persons.
The objects and principles of Part VII of the FLA are set out in s 60B(1) and s 60B(2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.
In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and additional considerations including: any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, 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 and any other fact or circumstance considered relevant (s 60CC).
In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).
‘Abuse’ is defined in s 4 of the FLA and means:
(a)An assault, including a sexual assault of the child; or
(b)A person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)Causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)Serious neglect of the child.
‘Family violence’ is defined in s 4AB of the FLA and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
In cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities[9] having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”[10] and proof to the reasonable satisfaction of the Court “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.[11] Where it is not possible to positively reject an allegation as groundless the Court is nevertheless required to assess and evaluate the magnitude of any risk to the child and to determine whether the risk of harm is unacceptable.[12] The components which go to make up a finding of unacceptable risk “need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard”[13] although “a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof”.[14]
[9] Evidence Act 1995 (Cth), s 140.
[10] M v M (1988) 166 CLR 69 (“M v M”) at 77, citing Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 (Dixon J).
[11] Ibid.
[12] M v M (n 10) at 77; N and S and the Separate Representative (1996) FLC 92-655.
[13] Johnson & Page (2007) FLC 93-344 at 81,890–81,891, [68].
[14] Ibid at 81,891, [71].
The Full Court of the Family Court recently reviewed the role of the Court in assessing risk in Bant & Clayton[15] and said from [38]:
[15] (2019) FLC 93-924 (“Bant & Clayton”).
In M v M (1988) 166 CLR 69 at 78 (“M v M”) the plurality of the High Court considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child and said:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. … courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
It is to be remembered that the concept of “unacceptable risk” referred to in M v M was within the framework of resolving “the wider issue” namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at 76; B and B (1993) FLC 92-357).
The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment. As the High Court said in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at 218:
…Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. …
As long ago as 1995, in N and S and the Separate Representative (1996) FLC 92-655 at 82,713 – 82,714, Fogarty J said of this determination:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.
The Full Court in Bant & Clayton[16] went on to stress the importance of the whole of the evidence in assessing risk and said at [51]:
The conclusion of the existence and magnitude of a risk was based on all of the facts and circumstances to which his Honour referred. It would not be proper to approach that task by analysing each fact or circumstance to see whether that particular fact would support the conclusion to which his Honour came, in the words of counsel for the father, to “atomise” that evidence (see Shepherd v The Queen (1990) 170 CLR 573; R v Baden-Clay (2016) 258 CLR 308). Rather, it was a conclusion formed by a consideration of all those aspects taking into account the necessary elements of prediction and assumptions about the future to which the court spoke in CDJ v VAJ.
[16] Ibid.
The Court is not required to make findings of fact on every factual dispute raised by the parties.[17] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion” [18] on each and every factual dispute.[19]
[17] Baghti & Baghtiand Ors [2015] FamCAFC 71.
[18] M v M (n 10) at 76.
[19] Ibid.
Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the Court (s 61C).
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the FLA I have considered all sections as required when making my determination.[20]
[20] Banks & Banks (2015) FLC 93-637.
I turn now to consider the issues in this matter.
DOES THE FATHER POSE AN UNACCEPTABLE RISK OF SEXUALLY ABUSING THE CHILDREN?
I want to stress at the outset that in identifying a risk as “unacceptable” the High Court of Australia in M v M[21] was intending, in my respectful opinion, to maximise protection to a child in circumstances where a serious allegation such as sexual abuse is made against a parent but cannot be proved on the balance of probabilities because the evidence is, for instance, unclear, inconsistent, or reliant on indirect inferences. The very nature of such allegations, which often rely upon a parent’s interpretation of a young child’s statement or behaviour, means that the evidence is often unclear, inconsistent or reliant on indirect inferences. Despite the inability to make a positive finding it may not be possible to reject the allegations as “groundless”.[22] The importance of M v M, in my respectful opinion, is that it confirms the existence of an additional layer of protection for a child and requires the Court to grapple with the often difficult task of balancing, on the one hand, the risk of harm to a child from being deprived of the love and affection of a parent who may have been wrongly accused, with on the other hand, the risk of harm to a child from potentially being abused.
[21] M v M (n 10).
[22] M v M (n 10) at 77.
While it may be impossible to remove all risk, it must be remembered that the paramount concern of the court is to make a parenting order which, in the opinion of the Court, will “best promote and protect the interests of the child”.[23] Even where a risk is found to be unacceptable, it may be possible to ameliorate the risk by requiring a parent to be supervised while spending time with the child.
[23] M v M (n 10) at 76.
Evidence relied upon by the mother
It is always important in such cases to identify what initially raised a concern that abuse has occurred. This is particularly important because what follows thereafter may contaminate i.e. make less reliable, what may have been a disclosure of abuse or alternatively an entirely innocent statement or action taken out of context.
In this case, it is noteworthy that the father had been spending regular overnight time with the children for four years prior to the allegations of sexual abuse being made. There is no evidence that the mother ever suspected sexual abuse until on 7 June 2020, Y made certain statements which were interpreted by the mother and her then partner, Mr E, as being a disclosure of sexual abuse of him by the father.
I interpolate that extraordinarily, and despite my order requiring the parties themselves to view all subpoenaed material including recordings, neither parent had viewed the s 93A recordings (video recorded police video interviews with the children). The first time the parents viewed the recordings was during the trial. The mother suggested that the Covid-19 pandemic restrictions had impeded her ability to view them but the recordings (save the one with X on 18 June 2020) had been produced to the Court in September 2021. The mother first made her appointment to view the recordings about two weeks before the trial. Unfortunately, it seems the appointment was cancelled because of Covid-19 pandemic restrictions. It is not entirely clear to me why that was the case, given an order had been made requiring the parties to view the recordings. The father had not viewed the recordings either, although he contends that he made greater efforts to do so that the mother.
Further, and despite counsel for each of the parties and the ICL informing the Court that their respective instructing solicitors had viewed the recordings, no one was able to provide information about the duration of the recordings. Counsel for the mother gave a wildly inaccurate estimate (apparently based on instructions) that the recordings would take 45 minutes to play. They took about 3 hours and 20 minutes. It was not until the recordings were played that it became apparent that one of the recordings was missing. How that could have been unknown when all three instructing solicitors had apparently viewed the recordings remains unclear. There was no transcript of the recordings until, at my direction, an agreed transcript was provided at the end of the trial. There was also no summary of the recordings in the police records other than the barest of information. It therefore remains a mystery how instructing solicitors and counsel could have properly prepared their respective cases without either viewing the recordings or reading a transcript of them.
Prior to June 2020
During cross-examination the mother said that she had read a book called “Only for Me” by Michelle Derrig, to both children “a few times” prior to June 2020 and that a fair description of the book was that it is about children being aware of sexual molestation and abuse and how to speak up about that. The mother also acknowledged that while the children do not “generally” watch adult themed television programs they watch ‘Neighbours’ and ‘Home and Away’ but she did not think they watched those programs in June 2020.
7 June 2020
Returning then to the evidence of the initial ‘disclosures’, I note that the evidence given by the mother and Mr E (the mother’s former de facto) about the initial statements and the circumstances in which they were made differs to some extent.
The mother’s version
Y’s disclosure
In her affidavit, the mother says that she and Mr E sat down with Y while they were having breakfast to talk about Y’s behaviour at school. The mother says that X was not at home as she was at a sleep over and did not return until the afternoon of 7 June 2020. The mother says that she asked Y why he was behaving badly at school and he said he did not know. The mother says that she suggested it was perhaps because he was tired and Y responded that he did not get much sleep when he was in “Dad’s bed”. The mother says that X had earlier told her that the father was getting rid of Y’s bed and she asked Y if that were true. Y responded that it was. During cross-examination, the mother conceded that she was concerned after hearing that Y’s bed was to be sold and that she had in fact asked Y whether he was tired because of sleeping in his father’s bed. The mother says that she further asked Y if he thought it was a good idea for his bed to be removed as he would not have his own space to play with his toys. Y said he did not know, but then said words to the effect that he – “didn’t sleep very well because Dad touched my doodle”. It is common ground that the term “doodle” refers to “penis”.
During cross-examination, the mother conceded that her affidavit does not set out the entirety of the conversation with Y but rather she had “summarised” it. The mother says that Y looked uncomfortable talking about the father touching his penis, so she said she would go into the kitchen while he spoke to Mr E about it. The mother says she could nevertheless hear the conversation from the kitchen and heard Y say – “Dad rubs my doodle through my shorts when we are in bed, and it makes my tummy hurt”. The mother says that the child also said he pretended to be asleep so that the father would leave him alone. This latter statement attributed to the child does not purport to quote Y’s actual words. The mother says that when she re-joined Y and Mr E at the table, she could see that Y was trying hard not to cry. The mother says “we” told him that it was “good to tell us about this and that we would keep him safe”.
X’s disclosure
It is important to note that at no time prior to 7 June 2020 does the mother contend that X had made any disclosure suggestive of sexual abuse. The children had been sick in the week prior to 7 June 2020. On 31 May 2020 (a Sunday) the mother had collected X from the father’s place because she was not well and the mother thought she would be better off sleeping in her own bed at her (the mother’s) place. The children were not due to return to the mother until the following day. Y remained with the father until the afternoon of 1 June 2020 when the mother also collected him and she noted that the father gave X a cuddle which she describes as “completely normal”. In her affidavit the mother says that on 1 June 2020, X did not go to school and slept most of the day. Y was also unwell at the father’s home and had stayed home from school too. Upon returning home on 1 June 2020 with both children, the mother says that X started getting very frustrated with Y, screaming and yelling at him for something small. The mother says she admonished her but X continued to stomp and slam doors and was fuming.
The mother says that X later (still on 1 June 2020) asked to speak to the mother alone and was crying her eyes out. The child told her mother that she was having trouble at school, both socially and academically and said words to the effect that she “just doesn’t understand. It’s all too hard”. The mother also contends that X told her she had no friends to play with and felt alone at school. She then told her mother that she did not like going to her father’s place as she felt so alone over there and said words to the effect “Dad doesn’t see me when I’m there – only Y”. X said she hated her father and did not want him in her life. X said that Y slept in his father’s bed every night and she would often overhear them talking in the other room, which made her feel left out. She told her mother that the father intended selling Y’s bed. Further, that she did not like her room as it was too dark. She was also upset that none of her clothes fitted her at her father’s.
There were two significant themes raised by X. One related to her unhappiness at school and the second related to her feelings of Y being favoured by her father.
On 2 June 2020 the mother says that X refused to get out of bed and had a huge tantrum which involved her yelling and screaming at the mother. She said she hated school and did not want to go to school. Eventually X went to school but both children came home at lunchtime as they were not feeling well. The mother confirms that in her discussions with X’s teacher, the teacher had no concerns about X’s performance at school but would keep an eye on her.
Then on 7 June 2020, the mother contends that X returned from a sleepover in the afternoon and asked to speak to her mother again. In response to this request, the mother says that she and Mr E spoke to X that night after Y had gone to bed. The mother then provides the following account in her affidavit of what occurred next:
124. I asked [X] about what she had said to me the previous Monday night.
125. She got defensive, telling us that she did not want to see or speak to her Dad again.
126. I asked her why and what he had done to upset her so much.
127. [X] refused to answer for a while but then began to tell us about how she is uncomfortable going there.
128. She said that she and [Y] gave Dad massages on his back with cream and that sometimes Dad gives her one in return.
129. She said that each time, he puts his hand in her underwear on her bottom, and that makes her feel weird.
130. She said that Dad rubs [Y’s] belly sometimes, and his hand accidentally goes to his doodle.
131. She then stated that Dad does it to her too.
132. When I asked [X] what [Mr Macena] did, she showed me using her hand on herself. She started with her hand moving from her chest down to her vagina and back up.
133. When I asked how many times it had occurred, she said words to the effect of "it has happened a thousand times."
134. I asked her how she felt when this happened; she said that it gave her a sore tummy and made her feel disgusting.
135. I asked her if she had asked him to stop, she replied no as she did not want to get into trouble.
136. I told [X] this is not OK and reminded her that it was her body, just like in the book, 'Only for Me', we occasionally read about being able to say no to people when you do not feel comfortable or safe.
137. [X] seemed embarrassed when she was talking to [Mr E] and I (sic). She wouldn't look at us and avoided eye contact. She was quite emotional and cried towards the end of our conversation. It seemed easier for [X] to show us what had happened rather than telling us what had happened.
Firstly, I note that in the conversation with the mother on the “previous Monday night” which was 1 June 2020, the child said nothing about the father touching her or Y inappropriately. Accordingly, it is not clear what the mother meant when she asked X on 7 June 2020 “about what she said to me the previous Monday night” which resulted in the child becoming defensive and saying she did not want to see or speak to the father again. Secondly, during cross-examination, the mother clarified that when she used the term “vagina” she was not using the anatomically correct term but rather was referring to “the outside” of the child’s genitalia. The mother confirmed that the child had never given any indication that penetration had occurred. Thirdly, I note that the only quote attributed to the child during this conversation is that “it happened a thousand times”.
Mr E’s version
Y’s disclosure
Although Mr E says in his affidavit that he had read the mother’s affidavit and agreed with its contents, his version of events differs to some degree to that of the mother’s. He says that on 7 June 2020, Y told him that he wanted to speak to him about some things that were bothering him. He says that Y was upset about things going on at the father’s house. Mr E does not purport to quote Y and does not say on what basis he concluded that Y was upset about things going on at the father’s house. Mr E says that the mother was present at the beginning of his conversation with Y, but he makes no mention of any discussion about Y’s behaviour at school. When asked about this in cross-examination he said he could not really remember. Mr E says that Y told him that the father was going to sell his bed and that he had to sleep in his father’s room and he no longer had a bedroom. Mr E says he asked Y why his father was selling his bed and he said he did not know. Mr E says that at one point the mother asked Y if he wanted her to go away so that he could talk to Mr E alone and that the mother went into another room. Mr E says that Y said words to the effect that the father – “touches and rubs my doodle at night in his bed in the dark” and that he (i.e. Y) “lays [sic] there pretending to be asleep hoping that he will stop”. When asked about the child’s demeanour, Mr E said he appeared to be sad and that when saying the things attributed to him, Y just said them without being asked any questions.
In his affidavit, Mr E says that “[l]ater that same night, on 7 June 2020, X wanted to talk on the lounge just before she was going to bed. [The mother] was present for this conversation.” Without purporting to quote X, Mr E says that she said she never wanted to go to the father’s house again and when asked why, she said that she was never noticed at her father’s house and when she tried to speak to him, he just brushed her off. Further, Mr E says that X said that she had to massage his back with no shirt on which made her feel uncomfortable. Mr E then purports to quote X saying that the father “massages my tummy”; “touches my vagina”; “this happens at night time in the dark”; “this has happened at least a thousand times”; “puts his hands down my pants and touches my bottom” and “makes me feel yuk inside my tummy”. X said that she did not want the father to know that she had said anything because she “knows that he tells lies and that he will yell at me for this” and she will get into “big trouble”. Mr E contends that prior to these ‘disclosures’ there was a long history of X not wanting to go to her father’s place and multiple times when she returned with a sore vagina.
When cross-examined about his and the mother’s conversation with X on 7 June 2020, Mr E said it occurred “late afternoon-ish, that night”. He said that X was lying on the lounge and “we” asked her - “how are you feeling? Everything okay? Did you want to talk about anything?” – which elicited a response that her father gives her massages with no shirt on and rubs her bottom and it made her feel uncomfortable.
Mr E makes no mention in his affidavit of a neighbour, Ms J speaking to Y about his disclosures, but during cross-examination, he said he was aware that she was at their house on 7 June 2020 at about “lunchtime-ish, mid-afternoon”. Importantly he said that Ms J was there after Y had made his disclosure but before X’s disclosure.
Ms J’s version
Y’s disclosure
In Ms J’s affidavit she contends that she went to the mother’s home “on or about” 7 June 2020 for a coffee. During cross-examination Ms J confirmed that her affidavit was initially sworn by her while the mother was still a neighbour of hers and that the mother moved in or about mid-2020. The only change made in her trial affidavit was to remove a reference to the mother still being a neighbour. Ms J said that after she arrived at the mother’s home on or about 7 June 2020, X and her daughter were playing upstairs while she and the mother were having a coffee downstairs. I note that both Mr E and Ms J contradict the mother’s evidence that X was not at home (if her visit was on 7 June 2020). Ms J confirmed that she had been a neighbour of the mother’s since 2016. In her affidavit, Ms J contends that the mother had “told me a little bit about X and Y’s disclosures to her about [the father] inappropriately touching them”. According to Mr E, at the time Ms J attended at their home, X had not made a disclosure. In any event, Ms J says that upon arriving at the home she went to “check on [Y]” and found him playing alone in his bedroom. Ms J says she found it unusual for Y to be quietly playing by himself because he was usually a “very energetic boy” but she had noticed that he had “not been himself lately”. Ms J says that she started to talk to Y about school and he disclosed that “[S] punches him sometimes but he’s funny”. During cross-examination Ms J clarified that S was a child at Y’s school. Y then told Ms J that he “does whatever he likes at Dad’s” and he felt sad that X “gets nothing at Dad’s but a bus and Barbies” while he is spoilt. Ms J attributes the following further quotations to Y: “I don’t really like it at Dad’s because I get everything and [X] gets nothing”; “Dad says he has no money when I know he does”. Ms J introduced the topic of the father’s bed and asked Y if he likes sleeping in his father’s bed and he responded that he and his father wrestle in bed but that he did not like it. Ms J then asked Y “Why? Does something happen that you don’t like?” and Y responded – “Dad touches my doodle and he does whatever he likes to me”. Without purporting to quote Y, Ms J says that Y said he does not like it and pretends to go to sleep so it will stop. Y had his head down when saying these things. Ms J told Y that it was alright for him to tell her and she just wanted him to be safe. She then asked him how he felt when this happens and Y said “disgusting”. Ms J continued to question Y. She asked him how he felt when it was time to go to his father’s and the child responded – “I feel like I’m being punched in the tummy 190 times”. Ms J attributes further statements to Y without purporting to quote him e.g. that he said the touching does not happen with the lights off and he asks his father to stop but he does not and that the touching on his “doodle” is with his pyjamas on. Y denied, when asked, if anything happens to X. Ms J says that she then went downstairs and told the mother what she had been told.
8 June 2020
The mother made a complaint to police on 8 June 2020 as a consequence of what the children told her the day before.
X was interviewed by police on 8 June 2020. The mother describes the child as angry with her for taking her to the police. The police video recording is in two parts. The first part is just over 34 minutes in duration. It is unclear why there is a second part to the interview with X which seems to be a continuation of the initial one. It is just over six minutes in duration. The child makes no disclosures of abuse. During the recording the child appears and sounds angry and tells the interviewing officer that she is angry with the mother because she did not want to come to the police station. The police officer spends a good deal of time attempting to build a rapport with the child. At one point in the interview, the police officer asks the child if there is something she needs help with and the child responds in the negative. The child talks about the father in a matter of fact way; sometimes in a positive context e.g. that he buys her bracelets from an op shop; sometimes in a negative context e.g. that he tells her and Y not to talk to Mr E and calls mum names a lot and provides an example that last Monday he called her a cow. X complains about Y being a “dobber” who tells the father everything. The child says that sometimes she does not feel safe at her father’s and provides the following examples: he sometimes turns all the lights off and she does not like the dark, sometimes he leaves the door open and sometimes he leaves clothes hanging up on the dryer and she thinks it is a person standing there. The child denies that anything has happened to her. The police officer suggests that the child might like to see her again later in the week so she can tell her what she has already told the mother and Mr E.
11 June 2020
X’s interviews
X returned to the police station with the mother on 11 June 2020 for a further interview. The interview was also video recorded and its duration was for just over 12 minutes. The same female police officer who conducted the interview on 8 June 2020 also conducts this interview. In the recording, the child appears comfortable talking to the police officer. A rapport seems to have been established. When X is asked why her mother brought her to the police station on 8 June 2020, X responds – “I still don’t know”. X denies that she is scared about saying something and repeatedly states that she is “not ready” to talk. When asked about feeling unsafe X refers to what she said on 8 June 2020 and repeats “[h]e leaves the door open”. No disclosures of abuse are made.
The mother makes no mention in her trial affidavit that X wrote a letter after this interview while still at the police station. During cross-examination the mother said that X had written the letter while Y was being interviewed and that she and X were in different rooms at the time the letter was written. The mother said she did not want to be “a part of the letter” so she moved into another room. The mother said that when X said that she “doesn’t want to talk about it” she said to her “write – write it”. Contrary to the mother’s evidence that the mother and X were in different rooms at the time the letter was written, Mr E was quite definite that they were all in the waiting room together although he said that X was not sitting with them.
The content of X’s letter is as follows:
My DaD tachs my vegin with I am speeping and I can hear Dad and [Y] specing about me and to doing safe. And I do not no why and I dot wilth cafeing with speeping and my brothe gets solte at Dads but when we are at mums we are bos salfe at mums. I do’t like it when my brother gets solte.
(As per original)
A number of the words are circled. They are: tachs, vegin, with, speeping, hear, specing, about, safe, wilth, cafeing, withe, speeping, solte, bots, salfe, solte.
X was interviewed for a second time on 11 June 2020 for a further 18 minutes, by the same police officer who commences the further interview with the comment - “Mum said you wrote a note while I was talking to Y”, and the child confirms that she did so and also says she had circled some words she did not know how to spell. The child then reads the letter out loud as follows:
my dad touches my vagina while I am sleeping and I can hear dad and [Y] speak about me and doing stuff and I do not know why and I don’t feel comfy while sleeping and my brother gets spoiled at dads but when we are at mum’s we are both spoiled at Mum’s and I don’t like to it when my brother gets spoilt.
Parts of the conversation that followed between the police officer and the child is set out below:
Police officer: okay so my dad touches my vagina when I’m sleeping
Child: Yeah
Police officer: Okay so tell me about that. Where are you when this happens?
Child: in my own bed
Police officer: At who’s house?
Child: At my dad’s house
Police officer: okay and does dad think you’re sleeping?
Child: No I do sleep. There’s a door so when my dad walks in he can see me sleeping
Police officer: okay so does dad wake you up when he does it?
Child: no
Police officer: so how do you know it happens if you’re actually sleeping?
Child: sometimes I wake up and I can feel it
Police officer: okay so how often does this happen?
Child: sometimes when he’s massaging my back to go to sleep
Police officer: does he massage your back to go to sleep every night when you stay there?
Child: every night
Police officer: on your back so that means you’re sleeping on your belly, your tummy?
Child: uh huh
…
Police officer: so tell me about when he touches your vagina how does he do that, you’re sleeping sideways?
Child: sometimes he puts it over my leg
Police officer: his hand? And what are you wearing?
Child: wearing my pyjamas with long pants
Police officer: and what do they look like, what colour?
Child: um I have a JoJo nighty
Police officer: a JoJo nighty?
Child: and I’ve got Harry Potter fluffy black pants.
Police officer: so you have them both together?
Child: The Harry Potter fluffy pants are black and from my mums. I just borrow them
Police officer: do you wear undies under your pants?
Child: yeah
Police officer: so when dad touches your vagina how does he do that?
Child: he does it when my pants are on
Police officer: On? He pushes them down?
Child: dad touches me when my pants are on
Police officer: and does dad touch you is it on the outside of your Harry Potter pants or your undies or your bare skin?
Child: um he touches me on the outside my pants
Police officer: Harry Potter pants?
Child: yeah
…
Child: it feels weird and really uncomfortable
…
Child: sometimes I can see his hand like this (child opens hand again but spreads fingers wide)
Police officer: Okay, so what part, I know what a vagina is, what do you use your vagina for?
Child: to pee
Police officer: so were talking about the same bit
Child: when my dad has touched it when I wake up in the morning I really have trouble peeing and it hurts
Police officer: okay whereabouts on your vagina is he touching you
Child: he touches um on the skin not inside it though just on the skin around it
Police officer: but when you pee where does it hurt?
Child: it hurts inside
Police officer: yeah okay that makes sense okay, when he touches you it’s on the outside of your clothing
Child: (nods)
Police officer: Okay and does he touch anywhere else around your body or always on that spot
…
Police officer: do you pretend to sleep?
Child: yeah
Police officer: have you ever had your eyes open when he’s done it?
Child: a lot
Police officer: a lot does he see when your eyes are open
…
Police officer: you’re nearly 8. How long do you think this has been going on for? Do you remember the first time?
Child: since I was two years old
Police officer: you reckon it’s happened since you were two, that’s a long time. And it’s always been the same?
Child: (nods) when I was two my mum and dad broke up so when we went over to dad’s house to visit he was doing it
…
Child: I don’t know if I was 1 or 3
Police officer: well you weren’t 1 because dad and mum were still together when you were one
Child: yeah. Um my dad always came into my bed to give me a massage
Police officer: okay
Child: when my mum and dad were together
…
Police officer: okay so does he massage your back?
Child: yeah
Police officer: and is that alright?
Child: yeah
Police officer: does he put his hand underneath your clothes at all on your skin?
Child: no
Police officer: okay, well I can understand how that would make you feel unsafe. So has he done it when [Y] has been in the room?
Child: no
…
Police officer: so would you prefer [Y] sleeping in your room at your dad’s?
Child: no, not really. Sometimes he annoys me
…
Police officer: yeah okay. So the last time you stayed over there was when?
Child: last Thursday
Police officer: did it happen then?
Child: yeah it happens every time I go there
Police officer: Okay so the last time it happened you know was last Thursday. Was there a time that was a bit different at all? Does something else happen?
Child: no, it’s been the same
Police officer: what about during when you were wearing different clothes
Child: no I always wear the those clothes
Police officer: all the time
Child: yeah
Police officer: what about the fluffy pants sound hot in summer would you wear?
Child: no I wear them in winter. In summer I wear Harry Potter shorts
…
Police officer: okay when he gives you a massage where does he touch you?
Child: he touches me on my back
Police officer: just on the back, what about your bottom?
Child: yeh my bottom too
Police officer: and does that make you feel uncomfortable?
Child: (nods)
…
Police officer: where abouts on your bottom is he touching you
Child: outside of my pants. Sometimes he puts his hands in there
Police officer: what’s he touching?
Child: he touches no I can’t remember
…
Police officer: okay so the only place this has happened is in your bedroom at dad’s place.
Child: uh huh
Police officer: and you think it’s happened since you were about two and because of him rubbing there it hurts in the morning when you have to pee, yeah?
Child: and poo when he touches me on the bum
Police officer: It hurts when he touches you on the bum, where does he touch you on the bum that it would hurt when you poo?
Child: he touches me on the bum cheeks
Police officer: what about near your bum hole?
Child: no
Police officer: okay and what he does makes you feel unsafe?
Child: I don’t know
…
Child: sometimes he leaves the door open. Even the front door
…
Police officer: so during the day has he ever said about not talking to anyone
Child: no
Police officer: what do you think would happen he would do if he found out you told mum or dad or someone else?
Child: he’d get angry
Police officer: okay. Are you worried about that?
Child: no
…
It is common ground that neither child has ever had Harry Potter pants or shorts. I note that the father has qualifications in massage, a fact corroborated by his mother, and he regularly massaged the children prior to them going to sleep. The father certainly spoke knowledgably about massage techniques and made reference muscular skeletal areas of the body.
Y’s interview
Y was also interviewed on 11 June 2020 by the same police officer who interviewed X and his interview was also video recorded. The duration of the interview was just over 34 minutes. Y appears relaxed and confident commencing with a retort to the police officer’s comment -“Don’t be nervous”, he said “I’m not”. The police officer shortly thereafter repeats her comment “Don’t be nervous” – and Y again responds - “I’m not”. The police officer builds rapport with the child. When Y is asked who Mr E is, he responds: “My uncle. My stepdad. We call him stepdad, but he’s normally my uncle”. He then adds that Mr E and the mother were getting married. The following exchange occurs between the police officer and Y:
Police officer: Where do you live? Do you know what suburb you live in?
Child: Queensland
Police officer: Do you live in a house or a unit?
Child: A unit. Our house is called unit village
…
Police officer: How many bedrooms?
Child: Four. No three
Police officer: Do you have your own room?
Child: Yes
Police officer: Do you always sleep in your own room?
Child: Yes… not all the time
Police officer: Where else do you sleep?
Child: In my mum and dad’s bed
Police officer: When you say mum and dad is that Mum and [Mr E]?
Child: Mum and my normal Dad.
…
Police officer: So at dad’s house how many bedrooms are there?
Child: two
Police officer: And where does everyone sleep?
Child: I normally sleep in my dad’s bed but I don’t sleep in there all the time. It’s pretty dark and I don’t really like darkness. Sometimes he leaves the lamp on and sometimes he turns it off in the middle of the night
…
Police officer: Okay, do you know why mum has brought you in here today
Child: No
Police officer: So, you know what I do for a job, making sure kids are safe and apparently on the weekend you got a bit upset about something. Did you get a bit upset about something?
Child: Yes
Police officer: You did. When was that?
Child: On the weekend
Police officer: Day or night
Child: Day
Police officer: Why did you get upset?
Child: Because the truth always comes out of your mouth
Police officer: Yeah, it’s good the truth always comes out of your mouth
Child: told the truth ten times
…
Police officer: So, who were you speaking to on the weekend when you got upset?
Child: Mum and [Mr E]
Police officer: Mum and [Mr E] ok. And were you upset at them? No ok
Child: No, upset at myself.
Police officer: Why yourself
Child: I don’t know
Police officer: You don’t know. Truth usually comes out of your mouth. What is the truth that was making you upset
Child: Because I only tell five lies. Dad keeps doing gross things
Police officer: Ok when does dad do gross things?
Child: When I sleep in his bed. And he said he’s going to sell my bed
Police officer: Ok so I just wanna make sure I get this right. Because there’s [Mr E] and then there’s Dad. What does dad look like?
…
Police officer: Does he have any hair on his face? Like a moustache or a beard?
Child: He has a big beard.
Police officer: Are you telling the truth?
Child: No
…
Police officer: Does he have any hair on his face?
Child: His beard
Police officer: If I asked mum if he has a beard would she tell me the same answer?
Child: Of course he does
…
Police officer: Does he have any tattoos?
Child: Yes
Police officer: Where?
Child: On his arm and back
Police officer: What of?
Child: … there’s a tattoo that says [X] on it [inaudible]
Police officer: Does he have a tattoo that says [Y]
Child: No. I want him to get one of them
Police officer: …, the word [X]
Child: And a [inaudible] strip
Police officer: A strip?
Child: A line dot there
Police officer: Line dot strip, where? Where abouts on his body is that one?
Child: On his back, it goes down to chest. Pretty long
Police officer: What colour skin has he got?
Child: Brown
Police officer: Brown skin. What colour have you got?
Child: White
…
Police officer: But you said something about dad was going to sell my bed?
Child: He is
Police officer: Tell me about that
Child: Because sometimes I sleep in his bed so he just said he’s just going to sell it. So I can’t do anything. I can’t watch my tablet up there
Police officer: Where would you like to sleep?
Child: In my own bed. I sometimes sleep in my own bed.
…
Police officer: … Ok. So tell me what are the gross things about dad that he does?
Child: I can’t tell you the first one
Police officer: Okay can you tell me the second one?
Child: That he thinks that I’m a child
Police officer: Ok. What’s he do?
Child: Not very much
Police officer: Not very much. And what do you mean he thinks you’re a child
Child: Because a child sleeps in dads’ bed
Police officer: Oh okay but you’re not
Child: I’m six and a half
Police officer: Yeah ok. Have you told him you don’t wanna sleep in his bed?
Child: No
Police officer: Could you tell him that?
Child: Uh huh
Police officer: How would he react?
Child: I think he’d be mad
…
Police officer: Right. So what else does he do that’s gross?
Child: I don’t know. I don’t know
Police officer: You do know cause there was something that was upsetting you the other night wasn’t there?
Child: Today I’m going to my dad’s
Police officer: Are you? And how does that make you feel?
Child: (Thumbs down)
Police officer: Thumbs down
Child: Yeah
Police officer: Why?
Child: Because I think he’s actually selling my bed.
Police officer: You think he’s actually selling your bed
Child: Yeah. Because there’s too much sand, and I can’t get comfy.
Police officer: In dads’ bed?
Child: No, in my bed
Police officer: Why is there sand in?
Child: Because every time we come up from beach [inaudible]
Police officer: Maybe you should shower and shake the sand off
…
Police officer: Sand does get caught in your pockets. Or your socks.
Child: Yeah I hate sand in my pockets
Police officer: It’s not a nice feeling. So the thing that you were talking to Mum and [Mr E] about, the thing that upset you on the weekend was sand in your socks?
Child: Pardon. Yep
Police officer: That’s not true, that’s not what upset you.
Child: No but that’s why I sleep in my dad’s bed
Police officer: Oh ok
Child: Cause I can’t get comfy in my own
Police officer: Ok right. Ok. So you don’t like sand in your own bed, but don’t like sleeping dad’s bed. Why don’t you like sleeping in dad’s bed? What happens?
Child: I don’t know (inaudible)
Police officer: You can tell me anything (inaudible) you know that. And you’re halfway there. You’ve told me that there’s some gross things. So what are the gross things? You’ve told [Mr E]
Child: Uh huh
Police officer: Did you tell Mum?
Child: Uh huh
Police officer: Then just tell me
Child: He rubs my doodle in the dark
Police officer: He what sorry
Child: He rubs my doodle in the dark
Police officer: Ok he rubs your doodle in the dark. That’s the gross thing?
Child: Yes. That’s the last gross thing
…
Police officer: What are you wearing?
Child: And then he wrestles
Police officer: What are you wearing to bed?
Child: My jarmies
Police officer: What do your jarmies look like?
Child: Scooby-Doo
Police officer: So are they like pants and a shirt what is it?
Child: They like are pants that go to my heels
Police officer: So long pants ok
Child: A short sleeve shirt
Police officer: What colour are they?
Child: Green
Police officer: Green
Child: And Scooby-Doo
…
Police officer: … What does dad wear to bed?
Child: Just shorts. And he smells
Police officer: Like what. What does he smell of?
Child: Spew
Police officer Spew. Uh ok
Child: Vomit
Police officer: Why would he smell of vomit?
Child: I don’t know.
…
Police officer: Ok so tell me what happens before he starts touching you?
Child: He wrestles
…
Police officer: No tell me about the actual rubbing part, what does he actually do?
Child: (the child rubs his leg with an open palm and hand)
Police officer: So that’s his hand.
Child: Yeah
Police officer: So where is his hand?
Child: On his arm
Police officer: Yeah but that’s you’re showing me on your leg, where does he put his hand?
Child: (child touches his groin)
Police officer: On your front part Ok
Child: Private
Police officer: Your doodle. What do you use your doodle for?
…
Child: Peeing
…
Police officer: But does he put his hand inside your clothes?
Child: No. On outside
Police officer: So on the outside of your clothes. Does he think you’re asleep?
Child: No.
Police officer: No ok so
Child: keep saying dad stop, dad stop, dad stop because I’m so tired.
Police officer: And what does he do when you say that
Child: Keeps doing it.
…
Child: Only when I pretend to sleep, he stops doing it.
[Police officer] When you pretend to sleep
[Y] And then he goes to sleep
…
Police officer: Does he do it every night. Or one time when you stay over
Child: Once, he’s just did it like five times
…
Police officer: Do you remember the last time he did it?
Child: No
…
In relation to the information provided by Y: the father does not have a big beard (or any beard) and there is no evidence that he ever did. The father is not brown skinned but white. The father does not have a tattoo on his back and there is no evidence he ever did. The father does not have one tattoo mentioned by Y but does have another, and a tattoo of the names, X and Y. The father provided photographic evidence to corroborate the description and placement of his tattoos. Mr E has tattoos but denies having a tattoo on his back. Unlike the father I have no photographic evidence to corroborate his denial but nor was he challenged about his denial. When asked whether Mr E had a tattoo on his back, the mother’s sister, confidently responded – “I believe he does”. The father denies he wrestled with Y. He contends that he was unable to do so because of a back injury sustained in 2018. The father’s mother corroborates his evidence that he had a back injury. It is common ground that Y does not have Scooby Doo pyjamas and never has. The father’s home was searched by police and no such items were discovered. I note that Y’s bed at the father’s home is the top bunk of a bunk bed he shared with X.
18 June 2020
Both children were again interviewed by the same police officer on 18 June 2020. Another female police officer was also present. X’s video recorded interview was just over 34 minutes in duration. X was again resistant to saying anything about the allegations. She was encouraged to do so and reference was made to the letter she read out on 11 June 2020. She was asked if it was true that her father touched her on the vagina and she indicated in the positive: “uh huh”. The child said it only happened in the apartment where the father lives now. When asked about her father she said that “he makes me not safe”. Again, X referenced her feeling unsafe to the father leaving the front door open. The following exchange then occurs:
Police officer: can you tell me everything about your dad, just some things that you know about your dad?
…
Police officer: I’ve never met him so could you describe him to me?
Child: um he’s a kind man and he likes to surf a lot
Police officer: and you said before that your dad makes you feel not safe sometimes. Can you tell me about the parts where he makes you feel not safe?
Child: my vagina and my bottom
Police officer: can you tell me everything about your vagina and your bottom
Child: so when my dad’s giving me a massage in my own bed um he touches my bottom outside the pants and my vagina outside the pants too. Sometimes he puts his hand in my bottom
Police officer: sometimes he puts his had inside your bottom?
Child: In my bottom
Police officer: Okay could you tell me the first time you remember that happening
Child: when I was two years old
Police officer: tell me everything about that?
Child: we used to live at a house in [City R]
Police officer: yep, and what happened there?
Child: my dad used to come into my bedroom and gave me a hug and gave me a massage too
Police officer: and then what happened
Child: he touched my vagina and bottom (inaudible)
Police officer: and then what happened
Child: felt it straight away
…
Police officer: Do you remember what pyjamas you were wearing
Child: no. yes my little pony pyjamas
Police officer: how do you remember that?
Child: cause I still got them
Police officer: was anybody else in your bedroom there?
Child: my mum came to say goodnight, she gave me a hug and a kiss
Police officer: was [Y] alive then?
Child: yeah he was only 1 years old
…
Police officer: what was the last time you remember something like that happening with your dad?
Child: I don’t know
…
Police officer: can you describe the apartment where you sleep and where dad sleeps that sort of thing?
Child: we’ve got two rooms, me and my brother used to share a bunkbed but my brother doesn’t sleep in his bunk bed so he sleeps with my father.
Police officer: and where do you sleep?
Child: I sleep in the room where me and my brother used to sleep together
Police officer: how do you feel when [Y] sleeps with your father?
Child: I feel jealous a little
Police officer: yeah, tell me about that?
Child: um
Police officer: what does the word jealous mean to you?
Child: wanna sleep in there. I don’t wanna always sleep in there
Police officer: sometimes you want to?
Child: when I feel like to go in there
Police officer: are you allowed to go in there?
Child: uh huh
Police officer: do you ever go and sleep in dad’s room with [Y] and dad?
Child: sometimes
…
Police officer: has your father ever given you a massage at the apartment?
Child: yes always does it to help us get to sleep
Police officer: can you tell me about it what the massages are like?
Child: sometimes he does it on my back and on my neck
Police officer: have you seen your father massage [Y]?
Child: yes
Police officer: tell me about that?
Child: it’s just the same as me too
…
Police officer: what did he do with his hands?
Child: he rubbed it
Police officer: where did he rub it?
Child: on my vagina
…
Police officer: how many times do you think it happened at the building?
Child: 97 times
Police officer: can you tell me about one of those times?
Child: no
Police officer: is there one time you can remember what you were wearing, watched some TV, or did something a bit different ?
Child: I was wearing black pants harry potter black pants that are fluffy and I have short ones too, can’t really remember what (inaudible)
…
Child: and then he while he was massaging he touched my vagina and my bottom. …
In relation to the information provided by X during the interview: I note that X said that on the last time she saw the father it was a Thursday and she told her mother that she had a sore vagina. There is no evidence that she did so. The child gave inconsistent accounts about when the father last touched her vagina and bottom. It varied from when she was seven or six to five or three or two. The child had previously said it only happened at the father’s current apartment but in this interview suggested it had happened when her parents were still living together in City R. During the interview, the child complained on numerous occasions about being tired. As already noted it is common ground that neither child has ever had Harry Potter clothes. The mother thought that X may have had a ‘my little pony nightie’ several years ago.
Y was also interviewed again on 18 June 2020. The same to police officers who conducted the interview with X conducted a video recorded interview with Y for just under 35 minutes. One of the officers explains to Y that the reason she asked to see him again was because last time she spoke to him, he was really tired. Y is clear that he does not want this interview to take long. After the initial introductions and explanations of the reason for the interview, the following exchange occurs:
…
Police officer: ... So, you told me about dad doing gross things when you sleep in his bed.
Child: (child nods)
…
Police officer: Can you tell us everything that happens when you sleep in dad’s bed, from when you go to bed to when you wake up
…
Child: When I go to sleep in my own bed, he massages me on the back and when I sleep in his bed, he wrestles with me and touches my doodle
…
Police officer: … how are you positioned when dads giving you a back massage?
Child: Straight
Police officer: Straight. Do you sit up in bed or do you lie down, what do you do?
Child: Lie down
Police officer: Which way?
Child: My tummy to the right and my back to the left
Police officer: Okay and does that mean you’re lying on your tummy?
Child: No
Police officer: No. can you quickly show me what you mean?
Child: (child lies down on the couch on his side)
Police officer: So you’re on your side?
Child: Yep
…
Police officer: So you said the gross things happen when you sleep in dads’ bed. Is that right?
Child: Uh huh
Police officer: And what are the gross things?
Child: He touches my doodle and he massages my back and that’s all
ON Okay. Can you think of one time just one time when he did that to you, touches your doodle?
…
Police officer: You were saying something about touched your doodle.
Child: He rubs it
…
Police officer: What were you wearing?
…
Child: Yep. I was wearing Scooby-doo
Police officer: Are they pyjamas?
Child: Yep
…
Police officer: Daddies hand, was it on the outside of your Scooby-doo pyjamas or underneath?
Child: The outside, not inside, outside
Police officer: Did you say anything to daddy or did he talk to you?
Child: just said stop it then he keeps doing it and doing it
…
Police officer: When you say your doodle can you tell me what it does, what part of your body is your doodle?
Child: In my private
Police officer: What do you use your doodle for?
Child: Peeing
Police officer: Do you know any other words for doodle?
Child: (shakes head) penis
…
Police officer: Do you remember the last time?
Child: No
Police officer: Were there any other times?
Child: No
Police officer: Have you told anybody else what dad did?
Child: Uh huh
Police officer: Who else have you told?
Child: My mum and that’s all because [Mr E] hasn’t been here
Police officer: In the last couple days?
Child: Yep
Police officer: Ok but you told [Mr E] something before you went away?
Child: We said goodbye to [Mr E]
…
Police officer: Last time when we spoke which was a week ago you told me it happened more than once
Child: Uh huh ten times
Police officer: What makes you say ten times?
Child: Ten times rubbing my doodle and wrestling
Police officer: Ok so can you think of another time?
Child: No
…
Child: He pinched it
Police officer: Tell us all about that time?
Child: He squeezed it, squeezed the hell out of it
Police officer: And what did he squeeze the hell out of?
Child: My doodle
…
Police officer: Can you tell [us] about the time he squeezed you on the doodle? You just showed me like a finger and a thumb going (the officer touches her thumb and finger together) like that?
Child: He squeezed like that (child mirrors the gesture of the officer)
…
Police officer: … when you went to bed that night that dad squeezed you on the doodle, like which bed were you in when dad squeezed you on the doodle?
Child: His bed
…
Police officer: Do you remember what pyjamas you were wearing?
Child: My grey Scooby-doo
…
Child: I went to sleep and when I woke up, he started touching my doodle and in the middle of the night he started wrestling
…
Police officer: What made you wake up?
Child: I had a bad dream
Police officer: Okay how did it feel when he squeezed you on the doodle?
Child: Hurt, painful
…
Police officer: Tell us about the wrestling?
Child: He just kicks my shins
Police officer: How does that feel?
Child: Painful
…
Child: He’s only done it once
Police officer: He’s only done it once?
Police officer: Done what once?
Child: Pinched my doodle
…
Child: … I just remember he rubbed my doodle
Police officer: But you can’t remember the last time it happened?
Child: No
Police officer: And you have told mum?
Child: Uh huh. And [Mr E]
…
Police officer: Do you ever massage dad?
Child: No
Police officer: Have you seen dad massage [X]?
Child: No
…
21 June 2020
I can only hope that Ms G reflects on her role if called as an expert in the future and comes to understand the very important role of experts in assisting the Court rather than seeking to usurp the Court’s role. I would suggest that the ICL bring these observations to Ms G’s attention.
Discussion about whether or not the father poses an unacceptable risk of sexual harm
The statements attributed to the children, particularly the initial ‘disclosures’ may certainly indicate something untoward but may also be entirely innocent. For example, it would not be at all unusual for a parent to “touch” or “rub” their child’s genitalia while assisting them in toileting or bathing or attending to some minor ailment. The context in which the children are said to have made the statements, however, appear to discount the likelihood of the touching or rubbing being related to any such activity. It is also possible that the father accidently touched the children’s bottoms or genitalia while massaging. X’s statements to police indicated that as a possibility, at least in relation to Y.
I do consider that the demeanour of the children at the time of making the ‘disclosures’, particularly the initial ones, is of some importance although certainly not conclusive. Their demeanour at the time of the initial disclosures was consistent with sadness, discomfort or anger about the alleged acts done to them.
It was suggested on behalf of the father that given the context of the discussion before the initial disclosures by Y i.e. the child’s unsatisfactory school behaviour, the child may have been attempting to deflect the focus on him to a topic he knew would gain attention. It was also suggested that the child’s demeanour may have related to what he perceived was an admonishment of some kind. Such suggestions are possible and demonstrate the nuances that one has to be attune to when assessing such evidence.
While there were some differences between the mother’s evidence and Mr E’s evidence I do not perceive those differences to indicate untruthfulness. Rather, in my assessment the mother and Mr E impressed as doing their best overall to recount the events to the best of their ability. That said, there were some troubling features of the mother’s evidence which gave me the impression that she was doing her best to direct attention towards the father as the perpetrator rather than anyone else. For example, the mother said the following:
(a)In the context of Y describing the perpetrator to police as having a tattoo on his back, the mother claimed that she could not remember if the father had a tattoo on his back despite them having lived together as a couple for five years. Further, she claimed she could not remember whether Mr E had a tattoo on his back which is equally remarkable given they lived together as a couple for about three years;
(b)The mother denied that Y called Mr E, “Dad”, despite the records from H Service’s noting that he used the terms interchangeably;
(c)The mother denied that any suspicion she had that Mr E may have been the perpetrator was the reason she and Mr E broke up, yet the records from H Service note Y saying that his mother and Mr E broke up because his mother thought that Y had been “rude to them”. Of course the reference to “rude” may have nothing to do with inappropriate touching;
(d)The mother maintained that X and Y had made their ‘disclosures’ independently. The mother even contends that X was not at home when Y made his ‘disclosure’. Yet Mr E said during cross-examination that X was on a lounge only 5 or 6 metres away when Y made his disclosure. The fact of the children making independent disclosure was considered significant by police and this inconsistency in the mother’s evidence is certainly cause of concern;
(e)The mother maintained that she was in a different room when X wrote her letter at the police station but Mr E said they all remained together in the waiting room, although X was apart from them;
(f)The mother set out only those medical visits for X in relation to vaginal/vulval irritation which coincided with the child having recently spent time with the father. The medical records indicate there were other occasions that the child suffered such ailments. The medical evidence does not indicate the irritations indicated sexual abuse.
In my view, it is possible that X heard Y’s ‘disclosures’ and, given the history of jealousy between them, made her ‘disclosures’ simply to gain attention. On the other hand, she was most reluctant to say anything to police when initially interviewed.
The father denies touching or rubbing the children in any inappropriate way. He concedes it was his regular practice to massage the children on their backs or their legs (if they had growing pains) at bedtime and contends that they liked it and requested massages. He also concedes that he may have touched the children’s buttocks while massaging them. The father denies touching Y’s penis or X’s labia or vagina while massaging them. The father can offer no explanation for why the children have said what they have, but concedes that he is worried by the disclosures made by the children and agreed it does indicate possible sexual abuse.
While the father denies the allegations, the father said a number of things during his oral evidence which cause me to have some about doubt his credibility generally. For example:
(a)He had to concede that he had twice lied when he said he did not undertake a Carbohydrate Deficient Transferrin (“CDT”) and/or hair follicle test because he could not afford it and his admissions were made only after he was caught out in his lie by the production of his bank statements;
(b)He conceded that when he first started to spend time with the children he had undertaken to the mother that he would not drink alcohol while the children were in his care. Contrary to that undertaking he admitted that he drank alcohol and then sought to justify it by alleging it was only one beer after the children went to bed;
(c)He was not candid about his child support arrears and only made a rather late admission that he owed $900 in child support arrears.
The father gave me the impression that he was not particularly concerned about lying under oath, although this may have been in the context of matters that he did not think were of particular importance.
The father also appeared quick to attribute ulterior motives to the mother. For example, during cross-examination the father had a bizarre reaction when questioned about the mother’s offer to immediately commence his week about time with the children when he relocated to City D in 2017. He accused the mother of “playing games” and became somewhat agitated. The father had sought to portray the mother as unreasonable about commencing week about time when in fact it was he who refused her offer.
If the children have been inappropriately touched by someone, it is possible that the perpetrator is someone other than the father. It is possible for instance that Mr E was the person Y was identifying, given Y’s use of the term “Dad” and “Mr E” interchangeably (although that seems unlikely given that Y’s first ‘disclosure’ was made to Mr E). It is also possible that the perpetrator (if there was one) is some other person given the description provided by Y that did not match Mr E or the father in some respects e.g. the person had a beard and was dark skinned with a tattoo on his back. It is apparent that the mother also had some doubts about who the perpetrator might be and she questioned the children in an attempt to clarify who they were implicating. The mother was open to it being someone other than the father including, it seems, Mr E, but contends the children’s answers to her questions satisfied her that they were implicating the father.
The ICL submits that there are a number of perplexing features to this case and, on the one hand, the evidence does not support a finding of unacceptable risk of sexual abuse from the father for reasons including the following:
(a)The absence of evidence that father experienced sexual gratification from the alleged touching;
(b)Neither child went beyond describing to police some possible touching by the father with an open hand (although it was conceded that during the last interview on 18 June 2020 Y said his penis was squeezed);
(c)The inconsistencies in X’s evidence about when the touching occurred and her suggestion that the abuse started when the parties were still living together in City R when she was very young which seems improbable but not impossible;
(d)Inconsistencies in the children’s evidence more broadly;
(e)The absence of any unequivocal evidence of exactly what the ‘touching’ entailed’
(f)Inconsistencies in the mother’s version of what she was told by the children and in particular the evidence in the H Service records of what the mother told them about the allegations;
(g)The absence of any evidence from the mother that anything of this nature was likely to have occurred when she and the father were still together;
(h)The unlikelihood of the children making independent unsolicited disclosures on the same day;
(i)The initial ‘disclosures’ made by Y was in the context of discussions about his poor behaviour and in the case of X were made after recent complaints about resentment and jealousy of the father’s relationship with Y;
(j)The children are likely to be aware that the mother does not like the father (as admitted by her during cross-examination) and accordingly they may have deflected perceived criticism of their behaviour to an allegation against the father that has been taken out of context;
(k)The context in which X said she felt unsafe at the father’s, related to a door being left open and clothing hanging up which looked like a person and for both children a light turned off;
(l)The description by the children of the clothing they were wearing at the time is said by both parents not to have existed;
(m)When specifically asked by police if the father had touched his penis Y replied in the negative;
(n)While the father’s behaviour (if it occurred) may have been grooming behaviour that seems difficult to accept given the description of the touching was alleged by X to have continued over a number of years, apparently unchanged;
(o)The inconsistencies between the mother’s evidence that the children do not wish to see the father and the records from B Contact Service which reflect otherwise;
(p)The father adamantly denies touching the children inappropriately.
On the other hand, the ICL submits that it is open to find the risk to be unacceptable for reasons including the following:
(a)The history of some behavioural problems in the children for some time prior to the ‘disclosures’ which involved X seeing a guidance counsellor in 2017;
(b)The possibility that the behaviour of the father was a “precursor to more serious offending and was simply a grooming process”;
(c)Despite a number of inconsistencies in the children’s evidence they have maintained “consistently” and “over a long period” that the father touched their genitals repeatedly and it made them feel uncomfortable;
(d)Y has been “very clear” that he has been unsuccessful in making his father stop.
I must say it was not entirely clear that the ICL was pressing for any particular finding about the magnitude of the risk. Ultimately, the submissions really seemed to come down to there being “a risk” which was exacerbated by the father’s history of excessive drinking and marijuana use and a recommendation, as best I can decipher, that supervision should be put in place to provide “some protective measures” for the “immediate future” until the father addresses the evidence that suggests him having an ongoing problem with alcohol and marijuana. In her written submissions, Ms Carmody, for the ICL, expressed the ICL’s position as follows:
The ICL accepts that something has occurred in the Father’s household which has caused some degree of distress. The exact nature of what has occurred is unclear but, on the Mother’s evidence, it has troubled the children. Although the [B Contact Service] visits go very well it may be that the presence of the supervisor is a protective factor in the children’s mind.
For that reason the ICL’s view is that care should be exercised in the best interests of the children. Safeguards must be in place even though the nature of the risk is not clear - if steps can be taken to protect the children – they should be taken.
The father submits that the evidence falls short of any identified risk of sexual harm being unacceptable, pointing to a number of factors including the following:
(a)While denying that she always wants to think the worst of the father, the mother conceded that she went straight to the police in June 2020 after the children’s ‘disclosures’;
(b)The mother conceded that the children sometimes tell her things that are untrue;
(c)The children appeared to be articulate during their respective interviews with police and demonstrated good memories in that they spoke about many topics in some detail except for the alleged sexual abuse, about which they were vague, inconsistent or completely incorrect e.g. the clothing they said they were wearing did not exist;
(d)The children were very reluctant to make the ‘disclosures’. X made no ‘disclosure’ until the third interview but only after she had written it down in circumstances where the mother and Mr E gave conflicting accounts about whether the child was alone or in their presence when writing her letter to police;
(e)There were no spontaneous ‘disclosures’ made by the children during police interviews. The children largely responded to leading questions;
(f)What the children have described is “touching” but there has been no escalation in the alleged behaviour despite it allegedly occurring over a period of at least four years;
(g)It is improbable that X could recall events from when she was one or two year of age;
(h)It is more likely the children have made ‘disclosures’ to “appease the mother and support her idea that the children were ‘unsafe’ with the father”.
Conclusion on the risk of sexual abuse
The children have made statements to numerous persons that the father has touched their genitalia in circumstances difficult to be explained by him assisting them with toileting, bathing, administering medical aid or accidental touch. While the mother appropriately conceded that the evidence could not support a positive finding of abuse, the repeated statements made by the children prevent a dismissal of the allegations as groundless.
In assessing the magnitude of the risk I place significant weight on the initial ‘disclosures’ made by the children to the mother and/or Mr E despite some differences in their accounts, which I put down to each of them doing their best to recall the salient evidence.
The initial statements by Y to the mother or in the mother’s hearing (as recalled by the mother) included the following:
(a)That he “didn’t sleep very well because Dad touched my doodle”.
(b)That “Dad rubs my doodle through my shorts when we are in bed, and it makes my tummy hurt”.
The initial statements and actions by X to the mother and Mr E (as recalled by the mother) included the following:
(a)That the father puts his hand in her underwear on her bottom, and that makes her feel weird;
(b)The child demonstrated by using her hand on herself. She started with her hand moving from her chest down to her genitalia and back up;
(c)She said it gave her a sore tummy and made her feel disgusting.
The initial statements by Y to Mr E (as recalled by Mr E) included the following:
(a)That the father “touches and rubs my doodle at night in his bed in the dark”;
(b)That he (i.e. Y) “lays [sic] there pretending to be asleep hoping that he will stop”.
The initial statements by X to Mr E and the mother (as recalled by Mr E) included the following:
(a)That the father “massages my tummy” and “touches my vagina”;
(b)That “this happens at night time in the dark”;
(c)That “this has happened at least a thousand times”;
(d)That he “puts his hands down my pants and touches my bottom”; and
(e)That it “makes me feel yuk inside my tummy”.
In assessing the magnitude of the risk I also place weight on Y’s sad demeanour, when making the initial disclosure to Mr E and the mother. I have nevertheless taken into account the context of the discussion about the child’s behaviour.
Further, I note the father’s concession that the ‘disclosures’ that have been made by the children indicate to him the very real possibility that the children have been sexually abused although not by him.
Despite there being many facts given by the children to police that are demonstrably untrue e.g. clothing they were wearing; and that it is highly improbable that X can remember something that occurred to her when she was two or three years old; and that Y described a tattoo that the father does not have, and despite the children’s apparent close relationship with the father as observed by the supervisors at B Contact Service and the fact that the children have spoken fondly of the father e.g. X described the father to police as a “kind man”: I nevertheless come to the conclusion that the risk of sexual abuse is unacceptable. While I readily acknowledge that another Judge may come to a different conclusion, in my assessment the risk to the children of possible sexual abuse by their father outweighs the benefit to them of spending unsupervised time with him. I stress that my conclusion is not a finding that the father has sexually abused the children.
DOES THE FATHER POSE AN UNACCEPTABLE RISK TO THE CHILDREN BY REASON OF HIS ALLEGED MISUSE OF MARIJUANA AND/OR ALCOHOL?
In this case, it is noteworthy that despite the mother’s concerns about the father’s drinking habits dating back to before they separated, there is no evidence that the children were ever harmed or put at risk by the father during four years of post-separation contact between the father and the children. Indeed, apart from one telephone call a number of years ago when the mother thought the father was intoxicated while the children were with him (at his parents’ home) the mother makes no mention of any evidence supportive of risk. At the time the mother suspended the children’s time with the father, they were spending five nights per fortnight with him.
On the other hand, the father went to some lengths to avoid submitting to random CDT tests and hair follicle tests despite consenting to an order that he undertake them and despite knowing that the consequence of failing to do the tests would be deemed a failed test. I infer that had he undertaken the test, the result would have been worse for him than a deemed failure. In this context, I note that the father also failed to comply with a request for a CDT in 2016 because he conceded it would have indicated excessive drug use.
On 21 June 2020, police attended at the father’s home and noted a large number of empty beer cans and empty bottles of spirits around the house, and a half full can of beer in his walk-in robe which he attempted to conceal behind his clothing. The father informed police that he had had “a friend” over the night before, but police records indicate their observation of a small pizza box suitable for one person. The conclusion reached by police was that “it is probable that the [father] was downplaying his regular use of alcohol”. When cross-examined about that evening, the father initially said “we had a party the night before” and later said that he had had “five friends” over. The father conceded that there was a can of beer in his walk-in robe but denied trying to conceal it. He also suggested that the pizza box was left over from another night and that he and his friends had not eaten anything. The father did not produce any corroboration from any of the friends. I must say the father’s evidence about this event was quite unconvincing. I consider it more likely that the conclusion reached by police was accurate. However, I take into account that this was at a time when the father had been accused of sexually abusing his children in circumstances where he denies doing so.
During cross-examination, the father said he could not afford a CDT test in October 2021 and January 2022 but, as was later demonstrated during cross-examination, he either had sufficient funds in his bank account at the relevant times or could have curtailed discretionary spending on alcohol and cigarettes to undertake the tests. The father conceded that he had been untruthful when he said he could not afford the tests.
The father does hold down a full time job in hospitality despite his seeming inability to curtail his likely excessive alcohol consumption at times. His continuing alcohol abuse also occurs in circumstances where he must realise he is under scrutiny by being in the middle of court proceedings where his alcohol consumption is an issue as it was during the 2016 court proceedings. The father conceded during cross-examination that in the lead up to and during the 2016 trial he had a “problem with alcohol” and was “consuming excessive quantities of alcohol”. He further conceded that he has a history of minimising his alcohol abuse. The father attended counselling with the Alcohol, Tobacco and other Drugs Service (ATODS) in 2016 but only because the mother was “harping on” about it and he was also prescribed a drug called Campral used to treat alcohol addiction. It appears that the father continues to have a “problem with alcohol” and in this context I note the paternal grandmother’s reluctant but candid concession that she had been concerned about the father’s excessive drinking up until December 2021.
When cross-examined about the mother’s understandable concern in relation to his history of alcohol abuse, the father said he had “addressed the issue” with a psychologist, Dr Q. The only evidence from Dr Q is a letter dated 12 January 2022 which states that the father has attended seven counselling sessions between July 2020 and 19 October 2021. At the time he first saw the father, Dr Q opined that the father’s presentation was consistent with Acute Stress Disorder relating to allegations of sexual abuse made against him by the mother. The letter is silent about the father’s admitted history of alcohol abuse or any treatment relating thereto.
Conclusion on the risk of harm relating to alcohol and drug use
The uncertainty created by the father’s repeated failure to comply with court orders to submit for random drug and alcohol testing and the fact that the test he did undertake indicated that he had recently or consistently been drinking to excess, causes me to conclude that the risk to the children would be unacceptable if the father spent unsupervised time with the children. I come to this conclusion despite the absence of evidence of actual harm during the period prior to June 2020 when the father spent unsupervised time with the children. His mother was clearly concerned about his excessive alcohol consumption at least up until December 2021. The evidence does not persuade me that the father has “addressed the issue”.
In my view, while the nature of the risks posed by the father were identified by the parties separately i.e. risk of sexual harm and risk arising from the history of excessive alcohol consumption and marijuana use, the assessment of the magnitude of the risks posed by the father overlap. By this I mean, that the risk posed by the father from sexual harm is heightened by reason of the risks associated with his excessive alcohol use. It is true, as submitted by the father, that the mother provided no evidence that his history of excessive alcohol use has impacted on his parenting ability. The father also submitted that any perceived risk could be addressed by an injunction enjoining him from drinking when the children are in his care or within 24 hours of them coming into his care. It was further submitted that the father could be ordered to undergo random CDT testing and a hair follicle test at some point in the future. The problems I see with those submissions are that firstly, on the father’s own admission on one occasion he consumed alcohol when the children were in his care despite having agreed with the mother not to do so and knowing that his alcohol consumption was a significant cause for concern for the mother. The second problem that I see is that the father has a history of failing to comply with court orders that he submit for drug testing so I can have no confidence that he would comply with such an order. The third problem is that there would be no one to oversee such an order as the ICL will be discharged at the conclusion of the proceedings.
IF THE FATHER DOES POSE AN UNACCEPTABLE RISK OF HARM, CAN THAT RISK BE AMELIORATED BY LONG TERM SUPERVISION?
It is apparent from my earlier comments that the risk posed by the father can be ameliorated by supervision. Indeed this is accepted by the mother. The prospect of supervised time occurring at B Contact Service is not ideal although offsite visits would make that prospect more acceptable. The mother had initially opposed the paternal grandmother as a supervisor but after seeing and hearing her in the witness box she accepts that the children will be the paternal grandmother’s priority and that she has an incentive to comply with the requirement of supervision (i.e. she is desperate to continue her relationship with the children) even though she rejects the possibility of her son being a risk to the children of sexual abuse.
HAS THE MOTHER ENCOURAGED THE CHILDREN TO INVENT ALLEGATIONS OF SEXUAL ABUSE AGAINST THE FATHER?
Given my findings above I reject the contention that the mother encouraged the children to invent the allegations. All was going along well until June 2020. The allegations and consequent court proceedings were instrumental in her relationship with Mr E coming to an end. In my view, the mother’s motivation focussed on protecting the children.
Ultimately, the mother proposed that the children continue to spend time with the father (although supervised by his mother) which is a further demonstration that her motivation in raising the allegations was one of protection, not removing the father from the children’s lives.
IF THE COURT FINDS THAT THE FATHER HAS NOT SEXUALLY ABUSED THE CHILDREN AND DOES NOT POSE AN UNACCEPTABLE RISK OF HARM TO THEM, WILL THE MOTHER FACILITATE A MEANINGFUL RELATIONSHIP BETWEEN THE CHILDREN AND THE FATHER?
Although, given my findings, this issue does not arise, I am satisfied that the mother will facilitate an ongoing relationship between the children and the father. She has a long history of doing so despite concerns about his drinking to excess. I also take into account her proposal for a continued relationship despite her concerns about sexual abuse and I further take into account her consent to the paternal grandmother being the supervisor despite initial reservations. Finally, I note that the mother has historically sought to facilitate an ongoing relationship between the father’s family and the children despite the unfortunate history.
WHAT PARENTING ORDER IS PROPER?
Having made findings in relation to the significant issues identified by the parties I now turn to consider what parenting order is proper in the circumstances.
I note the absence of submissions as to whether the presumption of equal shared parental responsibility applies. In my view, the presumption is likely to apply despite my findings of the unacceptable risk of future harm. However, in my view the presumption is rebutted. I find that an order for equal shared parental responsibility would not be in the best interests of the children and in this context I note the acceptance by all parties that an order for sole parental responsibility would be in the best interests of the children.
Even if I am wrong about the mother’s motivation in raising the allegations of sexual abuse, in my view a change in residence would not be in the children’s best interests. The mother has always been the children’s primary carer and up until June 2020 she facilitated the children’s ongoing relationship with the father. The father conceded that the children would need to move to City R at least initially if they were to live with him and that would involve a change of schools.
There can be no doubt that the mother is a caring and attentive parent who has done her best in dealing with these difficult circumstances. In my view, she has likely put her children above her own happiness with Mr E.
Both children have expressed to Ms G a wish to continue to see the father.
In my view it is in the best interests of the children for them to continue to live with the mother and for her to have sole parental responsibility. The father should see the children as often as agreed but failing agreement once every four weeks supervised by the maternal grandmother or such other person as agreed.
The minute of order recommended by the ICL included provision for the mother to travel overseas with the children. The mother included such a provision in her proposed orders. The father did not make any submissions opposing such a provision or in relation to the mother obtaining passports for the children. Accordingly I propose to include such provisions in the order. As earlier noted the parties were invited to submit a minute of any specific issues orders about which they could agree depending upon the findings. No minute was provided nor did either party make any submissions about specific issues orders sought by the other parent. I will therefore include in the order those provisions which I consider to be in the children’s best interests.
I certify that the preceding one hundred and fifty-five (155) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 27 April 2022
0
10
5