W and D
[2003] FMCAfam 308
•29 August 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| W & D | [2003] FMCAfam308 |
| FAMILY LAW – Contravention of Contact Orders – application to discharge contact orders – reasonable excuse – protecting the health and safety of children – whether belief held on reasonable grounds – unacceptable risk. Family Law Act 1975 (Cth) ss. 65E, 70NC, 70NE Lindsey and Lindsey (1995) FLC 92-638 |
| Applicant: | A H W |
| Respondent: | T D |
| File No: | LNM 2919 of 2002 |
| Delivered on: | 29 August 2003 |
| Delivered at: | Launceston |
| Hearing date: | 11 March, 3 & 4 April 2003 |
| Judgment of: | Roberts FM |
REPRESENTATION
| Counsel for the Applicant: | Ms A Cunningham |
| Solicitors for the Applicant: | Simmons Wolfhagen |
| Counsel for the Respondent: | Mr G Hay |
| Solicitors for the Respondent: | Phillips Taglieri |
ORDERS
That the Court declares that the Mother TRACEY DICKSON has without reasonable excuse contravened subparagraphs (a) and (b) of Order No. 3 of the Children’s Orders made by the Family Court of Australia on 31st October 2000.
That the Mother’s Application filed 5th February 2003 be dismissed.
That the matter be otherwise adjourned for mention at 10.00am on 13th October 2003 in Hobart.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
LNM 2919 of 2002
| A H W |
Applicant
And
| T D |
Respondent
REASONS FOR JUDGMENT
Applications
On 4th December 2002 a Form 49 Contravention Application was filed on behalf of A H W (“the Father”) which alleged that T D (“the Mother”) had contravened certain orders of the Family Court of Australia. Because of some technical defects in the Application, an Amended Form 49 Contravention Application was filed on 6th March 2003. The details of alleged contraventions were not varied by the Amended Application and those details can be summarised as follows:
a)That since Sunday 8th September 2002, the Mother has failed and refused to make L W born 27th November 1993 (“Lucy”) and C W born 10th March 1997 (“Claire”) available for alternate weekend contact pursuant to paragraph 3(a) of the Orders of the Family Court of Australia of 31st October 2000 (“the Orders”).
b)That the Mother had refused and failed to make the children available for contact pursuant to paragraph 3(b) of the Orders which provided that the Father was to have contact with the children during school holiday periods at times to be agreed between the parties and failing agreement as ordered by the Court.
c)That the Mother has refused and failed to communicate with the Applicant concerning the children’s long term care, welfare and development, particularly in relation to schooling and health in contravention of Order No. 2 of the Orders, which provides that the parties share responsibility for the long term, care, welfare and development of the children.
On 5th February 2003 the Mother filed an Application seeking an Order that paragraph 3 of the Orders be discharged. In support of that, she filed an affidavit which she stated that she wished to show cause in relation to the Father’s Application, and that her affidavit was made in support of her claim that she had a reasonable excuse for contravening the Order. As a consequence, it was not necessary to formally put the alleged contraventions to her.
The matter was set down for hearing on 11th March 2003 and both Applications were heard together. However, the hearing did not conclude on that day so it was necessary for me to return to Hobart in early April to hear the rest of the matter.
Background
The Mother and the Father were married and they are the parents of the two children named above. They separated in June 2000 and, after negotiating through their solicitors, consent orders were made in relation to property and children’s matters on 31st October 2000. It is only the orders in relation to children’s matters that concern the Court at this time.
In mid 2001, the Father took a redundancy from his employment as a result of “downsizing” in the industry in which he was employed. Because he was not readily able to secure other employment in Tasmania, he travelled to the United Kingdom in November 2001. He says that he had been promised employment by his family there but that did not eventuate. Consequently, he returned to Hobart at the end of January 2002. Initially, he stayed with a lady with whom he had previously had a relationship, C J (“Ms. J”). However, it seems clear that the relationship did not continue after he returned from the United Kingdom. He had contact with the children overnight on a few occasions at Ms. J’ residence but generally his contact was on Sundays.
By the time the Father swore his affidavit on 4th December 2002, he had not had face-to-face contact with the children since 8th September 2002, apart from approximately fifteen minutes on the older child’s birthday, 27th November 2002. However, when the matter came on for hearing, the Father was having contact at the Children’s Contact Centre in Hobart.
Relevant Law
A contravention of an order requires either an intentional failure to comply with the order or a failure to make a reasonable attempt to comply. See Section 70NC of the Family Law Act 1975 (“the Act”).
Following the decision of the Full Court of the Family Court of Australia in Lindsey and Lindsey (1995) FLC 92-638, it is clear that a breach of an order of under the Family Law Act does not constitute an offence against or arising under an Australian law. It follows that such proceedings are not criminal proceedings and therefore the criminal standard of proof does not apply to them. The appropriate standard of proof to be applied is the civil standard. Their Honours went on to say that they were nevertheless of the view that Section 140(2) of the Evidence Act specifically incorporates dicta in cases such as Reifek v McElroy (1965) 112 CLR 517, Helton v Allen (1940) 63 CLR 691 and Briginshaw v Briginshaw (1938) 60 CLR 336, all of which state that the degree of satisfaction which the civil standard of proof calls for may vary, having regard to the gravity of the facts to be proved.
A passage of Dixon J’s judgment in Briginshaw (supra at page 361) reads as follows:
“The truth is, that when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independent of any belief in its reality.”
When a respondent claims to have had a reasonable excuse, the onus of proof shifts to the respondent to prove to the Court’s satisfaction that that reasonable excuse existed. In short, it is not the job of the applicant to prove the absence of a reasonable excuse.
The circumstances that may lead the Court to accept that a respondent has a reasonable excuse for contravening an order include, but are not limited to, the matters set out in Section 70NE. A reasonable excuse includes:
·a failure to understand the obligations of the order;
·where the court is satisfied that the respondent ought to be excused;
·where the respondent believed on reasonable grounds that it was necessary to protect the health or safety of a person and the resulting period of the breach was not longer than necessary for the protection.
The Mother is seeking to discharge contact orders. Consequently, she is seeking a parenting order under Part VII of the Act and the order that she seeks is subject to Section 65E of the Act. That makes it clear that the best interests of the children is the Court’s paramount consideration. It is the overriding principle.
The Mother is seeking to discharge the contact orders because of her concerns about possible sexual abuse of the children by the Father. Issues of that nature were considered by the High Court of Australia in B and B (1988) FLC 91-978 and in M and M (1988) FLC 91-979 and from those two cases the following is now clear:
·The paramount issue to be decided in residence and/or contact proceedings is whether the making of the order sought is in the interests of the child's welfare;
·The resolution of an allegation of sexual abuse against a parent is subservient to the Court's determination of what is in the child's best interests; and
·Courts must not grant residence or contact to a parent if that would expose the child to an unacceptable risk of sexual abuse.
In WK v SR (1997) FLC 92-787 the Full Court of the Family Court was required to consider a trial Judge's positive finding that sexual abuse had occurred. The Full Court held:
·Findings that abuse has occurred can only be reached by a strict application of the onus of proof as set out in Briginshaw v Briginshaw (1938) 60 CLR 336; and
·In children's matters under Pt VII of the Family Law Act, the grave consequences of a finding of sexual abuse cannot be overstated. Before trial Judges make positive findings of sexual abuse, as opposed to findings of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Brigginshaw and Section 140 of the Evidence Act 1995.
Evidence
Because the Mother has raised allegations of sexual abuse, it is particularly important to examine the evidence with great care. I will therefore set out much of the evidence is detail.
The Father relied upon his affidavits sworn 4th December 2002 and 18th February 2003, and upon the oral evidence that he gave at the hearing.
In his affidavit, the Father set out the details of his travel to the United Kingdom at the end of November 2001 and return to Hobart at the end of January 2002. He deposes to having had contact with the children at the home of his former neighbour and says that the children stayed with him overnight on approximately three occasions. However, his contact was mainly on Sundays when he took them on outings such as the cinema, ice-skating and the swimming pool.
The Father states that on 24th October 2002 he moved to live with his current partner at her home on the Eastern Shore of Hobart. He says that he asked the Mother for contact in accordance with the Family Court Orders, but she refused.
The Father says that on 27th September 2002 when he was passing the Mother’s residence he saw the children waving to him from the window, so he stopped and spoke to them on the front steps of the house. He says that the Mother then sent him a text message on his mobile telephone stating:
“ DO NOT EVER CALL IN LIKE THIS AM AGAIN U R NOT WELCOME WILL GET RESTRAINING ORDER IF NECESSASZ”.
The Father says that later the same day, after speaking to his solicitor, he telephoned the Mother to ask for contact but the Mother subsequently sent him another text message saying:
“NOT HAVING THEM YOU HAVE NOT ABIDED BY COURT ORDERS IN THE LAST TWELVE MONTHS”.
The Father says that on Wednesday 2nd October 2002 the Mother agreed that he could have contact on the following Sunday. However, on the following Friday, the Mother informed him that C was sick and unable to attend for contact.
The Father complains that the Mother changed the children’s school without consulting him and she does not keep him informed in relation to the children’s health.
The Father instructed his solicitor to write to the Mother about contact and the Mother’s solicitors responded on 8th October 2002. Their letter contained the following:
“We advise that (the mother) will not be allowing (the father) to have contact with the girls pursuant to the current Family Court Orders. We give notice that she has legitimate reasons for refusing contact. In particular she has grave concerns that (the father) may have sexually assaulted C. (The mother) has referred her concerns to the Department of Health & Community Services, Children’s Services Division. She has also consulted a paediatrician with respect to her concerns. As a result of the consultation with the paediatrician, a report has been made to the Intake & Assessment Division of the Department of Children & Family Services. We understand that investigations are currently on foot.
In the above circumstances, contact will not be permitted. Any application to the Court for breach of the existing Orders will be defended on the basis of reasonable excuse.”
The final paragraph of the letter from the Mother’s solicitors indicated that the Mother had no objection to the Father continuing to have telephone contact with the girls on a regular basis.
In his affidavit, the Father stated that he strenuously refuted any suggestion of sexual assault upon his daughter.
The Mother relied upon the evidence of a Police Officer, which was essentially in the form of a videotape interview with one of the children. That videotape is an exhibit in the proceedings.
In addition, she relied upon her own evidence and that of Dr. L and Ms. J (who was brought to Court by subpoena).
It is the Mother’s case that she had a reasonable excuse for contravening the Orders because she believed it was necessary to deprive the Applicant of his contact with the children in order to protect their health and safety. Her concerns are that the Father had sexually abused the child C and that the children are at risk from him.
It is the Mother’s evidence that in May 2001:
“Claire began an uncharacteristic behaviour of rubbing her vaginal area against her bed, the lounge, floor and car seats. Sometimes she did this while clothed and other times while naked.”
The Mother says that she asked C why she was doing this, but she would not respond and would burst out crying. She says that at around that time C also told her that she did not wish to stay overnight with the Father. However, she says that she continued to allow the children to have contact with the Father because she had no explanation for C’s behaviour and:
“did not make any immediate connection between C’s expressions that she did not want to stay with the Applicant and possible abuse”.
The Mother then set out in her affidavit what she described as being:
“some extracts from my notebook entries in relation to events associated with contact that caused me concern …”.
For the period May 2001 to November 2001 she detailed the following in her affidavit as being extracts from her notebook entries:
4th May 2001
C now 4 years old – one year post separation. This is when C started not wanting to stay the night with her father. It was around this time she started masturbating by rubbing herself on the bed/lounge/floor and car seats (sometimes clothed, sometimes naked).
18th May 2001
C screaming when I dropped her off at her fathers house. She did not want to stay with him.
15th June 2001
On arrival at father’s house, C wanted to come home with me again.
17th June 2001
C vomited in father’s care on the way home (she never gets car sick).
29th June 2001
C did not want to stay at father’s house, would not let me go. I had to stay for ½ an hour to calm her down
1st July 2001
I made a note in my diary that I was concerned about the girls sleeping in their father’s bed (3 of them together at this stage). Told him they should be staying in their own bed, especially as they had their own beds in his unit.
29th August 2001
Father had C on her own today. L at school.
7th September 2001
Last sleepover before father went to the UK.
October 2001
Father went to UK.
November 2001
C stopped rubbing herself on the furniture etc.
The Father returned from the United Kingdom at the end of January 2002 and the Mother says that almost immediately after the children began having contact with him, C resumed her behaviour of rubbing her vaginal area against furniture. She says that C also began to express opposition to seeing her father and resisted speaking to him by telephone.
She says that although that she was concerned about C’s behaviour, she did not wish to believe that the Father would harm C in anyway. She went on to say:
“However, I became concerned and suspicious of the possible abuse of C or both girls and I recorded concerns in notebook entries.”
The Mother then listed what she says are further extracts from her notebook for the period February 2002 to September 2002. They are as follows:
31st January 2002
Father arrived back from UK.
February 2002
C started the rubbing again.
22nd April 2002
When father rang, C hid under the dining table and would not speak to him at all. She said that her dad had hurt her and when I asked where she pointed (at her pubic area) and said “gina”. When I asked her where this happened, she told me that it happened at the pool. I made a note in my diary that I was worried Tony may be sexually assaulting her.
June 2002
First time the girls stayed overnight since father back from UK. Girls slept on blow up mattress in lounge room.
2nd August 2002
Girls stayed another night. Apparently C slept in her father’s bed again. C came home with sore mouth. She was scraping her teeth over her bottom lip, causing a large red dry rash.
10th August 2002
L now has sore lips. Her lips are red and sore all around her mouth. She is constantly licking them.
21st August 2002
When T rang, C would not talk to him. She walked out of the room crying saying “I’m not going to talk to him”. When I told C he wanted to have them over to sleep at the weekend, C said “I don’t want to go. I am not going”.
25th August 2002
T arrived unannounced. L’s lips were clear before he arrived but 2 hours later they were red raw. She began licking them constantly after seeing T.
1st September 2002
Father’s Day. The girls visited T.
4th September 2002
L draws a picture which depicts, amongst other things, an erect male penis.
16th September 2002
As I was driving in the car with C she brought up T. I had a chance to ask her about what happened at the pool when he “hurt her”. She said he was “scratching my vagina” and she gestured a scratching motion with two of her fingers. She actually got two fingers, put them together and showed me how he was scratching.
The Mother goes on in her affidavit to say that as 2002 progressed, she became more and more suspicious in relation to the Father’s contact towards the children and by August she had decided to consult a solicitor. She says that as a result of that consultation on 19th August 2002, she initiated a report of allegations of a sexual abuse to the State Child Protection authorities “via a visit to a paediatrician”. Further, she says that the Child Protection authorities referred her allegations to the Police.
She says that she received a telephone call from Ms. J on 24th August 2002, at which time she was informed that Ms. J had asked the Father to leave her home.
The Mother goes onto say that on 28th August 2002, Ms. J telephoned her and stated that she wished to meet to discuss some issues concerning the children and the Father. That meeting took place on 29th August 2002. However, it is not necessary to set out in full detail what the Mother says Ms. J told her, because Ms. J gave evidence herself. I shall, however, refer to discrepancies between the evidence of the Mother and Ms. J later in these reasons.
The Father filed an affidavit on 7th March 2003 in which he responded to some of the matters raised in the Mother’s affidavit.
The Father says that the Mother was aware prior to their separation in June 2000 that C had exhibited the behaviour of rubbing her vaginal area against various objects.
The Father also said that following separation the children had told him that they were to keep secrets about A, a medical practitioner who employed the Mother. The Father went onto say that A often spends a lot of time at the house of the Mother and that he and the Mother and the children had been away together for a weekend.
In response to various allegations made by the Mother, the Father said the following;
·C had vomited in the car on 17th June 2001 because she had had a meal from McDonalds, ice-cream and sweets
·He had agreed that there were occasions when the children would come into his bed, however, he always encouraged the children to sleep in their own beds that had been set up for them during contact visits.
·He agreed that there were occasions when C would not speak to him on the telephone but said that it was because she got upset if L spoke to him first
·He specifically denied hurting C
·C had had an unfortunate habit of sucking her bottom lip for some time. He said that he had been concerned about it and had discussed it with the Mother.
The Father stated in his second affidavit that he and Ms. J had not resumed their sexual relationship after his return from the United Kingdom and he lived with her as a boarder. He said that Ms. J was extremely upset when he informed her that he was moving out because he had met another woman and intended living with her.
At the hearing, the first witness was a policewoman who had conducted a videotaped interview with C. That videotape is an exhibit in these proceedings.
The Mother was sitting to C’s left throughout the videotaped interview and on at least one occasion C turned to the Mother as if seeking her approval. Throughout the interview, C child was clearly uncomfortable with the process and she tended to move about in her seat in a nervous fashion.
After preliminary questions, she indicated that her father had scratched her with his fingers when they were together with L at the pool. L was beside her at the time.
When she was asked where he had scratched her, C pointed towards her crutch but was not more specific than that. The Policewoman asked her whether she knew what that was called and C shook her head.
The Policewoman then asked her whether she knew what her bottom was. She pointed to the back of the body. When asked where she had been scratched, she indicated that it was in the front. She also said that it had happened when her father was picking her up.
When C was asked how did the scratch in the front happen, she was unable to answer that question. However, C indicated that it was on top of her bathers and she had told her father to stop because it hurt. When C was asked how it made her feel about her father, she said nothing.
The Policewoman asked C whether her father had done it deliberately or by accident and C’s response was that she did not know.
When C was asked whether there were any other times when her father had done things like that, her response was that she did not think so.
When she was questioned about the sleeping arrangements at Ms. J’ house, she indicated that she slept in a sleeping bag on a mattress with L in the loungeroom. She indicated that her father slept in the room next door to Ms. J.
C indicated that she sometimes slept next to her father and when asked why she went into her father’s room, she gave no answer.
When C was asked whether her father had touched her anywhere her answer was that he had not.
C was asked whether she heard any funny noises, and she indicated that she had heard Ms. J snoring. She was asked whether her father made any noises and she indicated that he did not. She was asked whether he tickled her or anything. Again her answer was that he did not.
At the end of the interview, when the Policewoman asked C whether she wished to see her father again, she gave an animated and quite definite nod.
As indicated above, Ms. J was brought to the Court as a result of having been served with a Subpoena. It was her evidence that she had been in a relationship with the father prior to his travel to England but when he returned from England he stayed at her house but they were not in a relationship.
It was Ms. J’ evidence that she had rung the Mother towards the end of August 2002 to inform her that she had asked the Father to leave her home. She said that she had done so to let the Mother know the reason why she had asked the Father to leave. She said that her asking him to leave had not had anything to do with the children.
Ms. J said that some days later the Mother telephoned her to ask her to meet for lunch to discuss matters. On or about 29th August 2002, they met for lunch at a hotel in Hobart and had some private discussions before the Mother’s parents and a friend arrived for lunch. Those private discussions took thirty to forty-five minutes.
Although Ms. J could not remember exactly what the Mother said about the children, she said that she thought that it would have been in the context of the trouble that she was having with C every time the Father rang:
“and that C had been hurt between the legs at the pool”.
Later in her evidence Ms. J said:
“I can remember (the Mother) telling me about C and being hurt down below and I felt ill about that because of a particular night at my house. Like, that made me feel sick and it made me look at what I heard in a different light”. She went on to say that at the hotel on that day the Mother had told her “that C had told Mummy that Daddy hurt her vagina.”
Ms. J also said that this made her reflect upon the night when the Father had C in his bed and that she heard “scuffing of the sheets” and C had got angry and asked her father not to rub her. She said that she had got up and said to the father: “Why don’t you put her back to bed?” and then she went back to bed and shut her bedroom door.
Ms. J said that on that night she had been asleep and that she had been woken by the Father going to the toilet. She then said that she heard him waking C up. However, she subsequently said that she “thought” that the Father had woken C up and that she heard him say:
“C, are you right? Are you right? Come with Daddy”.
She said that she heard him take C into his bedroom.
Ms. J was asked if she was able to tell from the noises that she heard what happened next. Her response was:
“No. He used to rub C all the time, so it was like a fabric sound, like that kind of sound and I could hear that noise in the bedroom.”
She was asked whether she gave any consideration to whether the noise resembled anything else and her response was:
“I did after I had spoken to (the Mother), but at that time I didn’t. I was just annoyed that he had woken her up and took her into bed and then was, like, keeping her awake.”
Ms. J said that she got up and asked the Father why he did not put her back to bed in the lounge room but she added that she was annoyed that he had woken C up. She disagreed with what was written in the Mother’s affidavit but did say that she had a go at the Father about waking C up.
When she was asked about the date of the incident, she was unable to recall the date but was sure that it was the same night “that earthquake shook Tasmania”. (However, nobody in court knew when that had occurred.)
Ms. J said that the next day she noticed that C was:
“holding herself” in that she used to “put her hand on her trousers or her pants and, like, pull them tight down below, and she had a habit of doing that.”
Ms. J could not accurately recall her conversation with the Father the following morning.
The Mother in her affidavit had said that Ms. J had told her that she had seen the Father showering L and that he got into the shower with her naked. When that was put to Ms. J, she denied that. She said that L would get in the shower and the Father would stand and help her wash or tell her what to do. She did not ever see them in the shower together.
Ms. J confirmed that she had once found C “rubbing her pubic bone against the border of the bed”. She said that she had picked her up and left her on the floor. However, when she went back into the room C was doing it again, so she picked her up and laid her on her back on the bed and left her there. When the Father came to her unit later, she had told him about it. She said that the Father had said that C had done it before and that the Mother had been looking into it.
In her affidavit, the Mother said that Ms. J had told her that she had seen the Father “make C watch him doing a wee” and that:
“She saw (the father) force C to put her head between his legs while he was urinating.”
When this was put to Ms. J, she clearly denied it. She said that she had only seen the children run into the toilet when the Father was there. She said that she had told the children to get out and told The Father that he should shut the door.
She said that C and L had told her that the Father had made C stand between his legs while he was urinating. However, the children were laughing and thought it was funny.
The Mother had stated in her affidavit that Ms. J had told her that, on the morning following the incident in which the Father had taken C to his bed, Me. J had asked him if he had been having “a wank” the previous night. When that was put to Ms. J, she said that she had not said that to the Mother. Instead, it was her evidence that she had said to the Mother:
“Oh, my God, I hope he was not having a wank.”.
When the Mother’s counsel put to her that she had put what she had been told by the Mother and the “rubbing sound” together, she said “Yes, and made a mountain out of …..” but she did not complete the sentence.
When questioned further by counsel for the Mother, Ms. J again confirmed that she had not seen the Father in the shower with L and she also confirmed that the Father had told her that the Mother was aware of C rubbing herself and “had it in hand”.
When she was cross-examined by counsel for the Father, Ms. J was more forthcoming about the day on which she asked the Father to leave her home. It appears that he had spent the whole of the previous night elsewhere and, when she asked him to leave, he had “stormed off in a huff”. She packed up his things and left them outside the house. That same day she had rung the Mother. She stated that a few days later the Mother had rung her:
“to ask me if I would discuss something with her which wasn’t a very nice topic, and it wasn’t a phone conversation that you could have”.
She later said that she did not really want to meet the Mother at the hotel, but that she had gone “out of curiosity”.
Under cross-examination, Ms. J stated that on the night of the “earthquake”, she had not been woken up by the Father going to the toilet because she had only shortly before gone to the toilet herself. She also conceded that both C and L could have been awake.
Ms. J stated that has no children herself and, although she was aware that little boys sometimes masturbate, she had never heard of little girls doing it.
Ms. J also said that after she had spoken to the Father about shutting the toilet door, he had done so.
The Father gave his evidence after Ms. J.
When I queried the relevance of questions put to the Father about any relationship between Dr. L and the Mother, it became apparent that Dr. L had forwarded a letter to a paediatrician, thereby commencing the process of investigation by Child Protection and the Police into the alleged sexual abuse of C. I made it clear that it was my view that Dr. L should be called to give evidence.
It was the Father’s evidence that he had seen Dr. L’ car at the Mother’s residence on a number of occasions, sometimes early in the morning and that the Mother had used that car to transport the children.
The Father said that on one occasion he had been speaking to the children on the phone and Dr. L had been listening to the conversation on the other telephone.
In relation to the evidence given by Ms. J about what happened on the night of “the earthquake”, the Father said that the two children had been in sleeping bags and were together on an air bed. He said that he did not go to the toilet that night but he had gone out to see what the commotion was. Both girls were awake and L was complaining about C “wriggling and tossing and turning”. He said he was cuddling C and she indicated that she wanted to go and sleep in his bed so he let her do so. He said that he had tried to comfort her for ten minutes “tapping her on her back”.
When asked what noise Ms. J might have heard like material being rubbed, the Father said that, if she had heard anything, it would have been the sleeping bags.
The Father did not recall C saying anything like “Don’t” or “stop it”.
The Father admitted that when the children were younger it was a lot easier for him to have a shower with them. However, he realised that as they were getting older they needed a bit of privacy.
It was the Father’s evidence that initially when he took them to the pool that they would all go into the men’s changing rooms. However, that had also ceased as they got older.
In relation to the allegation that he had scratched C while he was at the pool, the Husband’s evidence was that he could not remember such an incident but that he plays a lot of games with the girls, which included them holding them on their buttocks and throwing them in the water. He felt it was possible that he may have “caught her with a fingernail or something”. He also said that “it was unintentional” and that he “wasn’t aware of the incident on the day”.
In relation to C rubbing her vaginal area, the Father stated that C had been doing that when he and the Mother were living together at Blackmans Bay. His comment was that he did not know whether it was normal or abnormal because he has not had children before and the older child L had not done it.
In relation to the allegation about C being involved when he was urinating, his evidence was that on one occasion when he was at home the children came running into the toilet behind him and L hit him in the back of the legs. He said the children had made a joke about L nearly going through his legs and into the bowl. He said:
“it’s just kids having a laugh and it got blown out of proportion”.
In general, the evidence given by the Father under cross-examination was consistent with his evidence-in-chief.
The Mother gave her oral evidence some weeks after the Father’s evidence was concluded. She confirmed that she was employed on a part-time basis by Dr. L and that she had been in a relationship with him since mid-December 2002. She confirmed that she had been away with him and the children to Orford.
It was clear from the Mother’s evidence that the Father was in the United Kingdom when the children were moved from the Blackman’s Bay School to a school nearer the Mother’s home. She said that the Father had become annoyed because their new school did not have his contact details. However, she pointed out that, because he was living in the United Kingdom, “there was no point having him down as an emergency contact”.
The Mother conceded that the children had had meningococcal injections after the Father returned from the United Kingdom but said that there had not previously been any discussion about immunisations because the Father had always left that to her. Further, on one occasion when one of the children had been taken to hospital with suspected appendicitis, the pain had stopped after approximately one hour. She said that she did not get a chance to tell the Father about that because L had done so.
The Mother said that C started rubbing herself on furniture at the Father’s home at Austins Ferry. She denied that she had ever seen her doing it at Blackman’s Bay.
The Mother conceded that both children had had creams prescribed for rubbing into their vaginal area.
It was the Mother’s evidence that she first became concerned about a possibility of sexual abuse when C told her that her father had hurt her and hid under the table. She said that this had happened when the Father was on the telephone. She said that C was screaming:
“I’m not speaking to him.”
The Mother conceded that C regularly “had a go at Lucy because she wanted to get to the phone first”. She also conceded that C would scream and say that she would not talk to her father.
On the occasion that C hid under the table and screamed that she was not going to speak to her father, she had said that her father had hurt her. The Mother said that she asked C what he had done and C did not say anything. However, when she asked C where she had been hurt, the Mother’s evidence was that:
“She pointed and said, ‘Gina’”
The Mother said that she thought that that could not be right and that the Father would not do anything like that. Her evidence went on as follows:
“Then I got her out and sat her down and said, “Where did this happen?” She said, “At the pool”. So I asked her where it happened at the pool. I mean, I did not get much out of her that day. She was just screaming. She wouldn’t say much. Later on I did ask her again.”
The Mother was asked by counsel for the Father if C had used the word “scratch” when talking to her, as she had done in the video taped interview. The Mother’s response was:
“Yes. She got her fingers up and actually showed me, but of course, they don’t do everything that they tell you on a video, especially when the Police have to get it out of them first and then tape it the second time and not as much information comes out the second time.”
When questioned about her conversation with C in the car on 16th September 2002, the Mother said that C had brought the subject up and the Mother had pulled over to talk to her because she could not have a proper conversation when the two girls are together. She said that she and Claire were on their own in the car at the time.
The Mother conceded that C had not talked about the matter between April and September. She also conceded that the first time the word “scratched” was used was in the car in September.
It was the Mother’s evidence that she had taken C to see a paediatrician, who had reported the matter to Intake & Assessment (Child Protection) and they had, in turn, reported the matter to the Police.
The Mother was asked a number of questions by counsel for the Father about Dr. L. When she was asked:
“Why did he draw over her stomach? Do you know anything about that?”
her response was:
“Just trying to cheer her up and have a bit of fun because she was sitting there just moping. Her nose was bleeding for about an hour, I think.”
When asked what Dr. L had used to draw on her stomach, the Mother said it was just a black pen. She also said that he was just having a bit of fun and that he had drawn a little face or something.
The Mother said that Dr. L wrote a letter to the paediatrician and that she had asked him to write a referral.
The Mother said that she had wanted the paediatrician to do an internal examination: “For my own peace of mind”. However, the paediatrician had said that he would not do that because another paediatrician was the person to do that and he had referred it to Intake & Assessment, who had in turn referred the matter to the Police. She said that her visit to the paediatrician happened before Ms. J had rung her.
The Mother was adamant that Ms. J had telephoned her the second time and that Ms. J’ evidence in relation to that was in correct. She conceded, however, that she had asked Ms. J to meet her for lunch.
The Mother stated that she made notes of her conversations with Ms. J at the hotel after she had got home and got the children “to bed or out of the way”. She conceded that there were inconsistencies between what she had written and Ms. J’ evidence. However, she said that she had only written down what Ms. J had told her.
In her affidavit, the Mother had said that Ms. J said she had heard a noise that sounded like the Father was masturbating and that she (Ms. J) had asked the Father the next morning whether he had been “having a wank last night”. It was put to the Mother that Ms. J’ evidence was that she had only been concerned that the Father might have been masturbating as a result of her conversation with her. The Mother said that that was not Ms. J had told her.
It was also put to the Mother that Ms. J had not actually said to her that she had seen the Father showering naked with L. The Mother said that she did actually say that to her.
It was also put to the Mother that Ms. J did not actually say that she saw the Father force C to put her head between his legs while urinating. The Mother said that Ms. J had said that.
It was apparent from the Mother’s evidence that she had questioned C regularly. However, her comment was that C “won’t talk about it”. The Mother also conceded that C knows that she (the Mother) is concerned that the Father has “done the wrong thing”.
The Mother also conceded that she had encouraged C to talk to the Police.
Following a request from me, the Mother’s counsel produced the drawing that she said had been made by L on 4th September 2002 “which depicts, amongst other things, an erect male penis”. The Mother appeared surprised that I might have the view that what she thought was “an erect male penis” was only one of the two legs of the character that Lucy had drawn.
Dr. L gave evidence. He had not sworn an affidavit but a document described by his counsel as a “proof of evidence” was confirmed by him to be correct and was admitted into evidence. In that document, Dr. L says that he has known the Mother since the late 1980’s when she commenced employment in the medical practice where he was engaged. He and the Mother have been friends since they first met.
Inter alia, Dr. L’ proof of evidence says the following:
·In 2001 (the Mother) spoke to me about her concerns in relation to C who was showing reluctance to spend time with her father and an excessive and inappropriate degree of masturbation. I discussed with (the mother) strategies to encourage C out of this
·During 2002 (the mother) spoke with me about her concerns about the children’s contact with their father, their reluctance to go and the increase in C’s unusual masturbation. I observed this myself on several occasions and in my opinion it was well out of the ordinary
·Following these discussions with (the mother) and also with her mother on one occasion I was requested by (the mother) to have (the paediatrician) investigate the concerns further. I held the view that the possibility of sexual abuse could not be ruled out as a result of the concerns.
·I wrote to (the paediatrician) on 21st August 2002 expressing my concerns as a result primarily of what I had been told by the Mother but also in part from my own observations.
·There was one recent occasion when I was in (the mother’s) kitchen when (the father) telephoned the children. L was speaking with him, I could see and hear that she was becoming distressed, she was speaking mainly in monosyllabic answers and making faces. From L’s answers it was apparent to me that (the father) was questioning her about her mother and L was uncomfortable. I was not listening on the other phone. I did take the telephone from Lucy and asked if he was asking L about (the mother) and my relationship. He replied, “No I was just talking to L and I am going to see a solicitor because I have problems about you being there”. I replied, “I do not have any problems with that but I do have problems with you”. This is the only occasion I have spoken with (the father) by telephone.
Attached to Dr. L’ Proof of Evidence is a copy of a letter to him from the Paediatrician indicating that he had made a mandatory report to Intake & Assessment and that a follow up telephone call had revealed that the matter had been reported to the Police. The Paediatrician’s letter is dated 5th September 2002.
Dr. L was shown a copy of his letter of referral to the paediatrician he confirmed that it was his letter of referral and provided an additional page.
In cross-examination, Dr. L confirmed that he had been friendly with the Mother for many years and that their sexual relationship had started at the end of 2002.
Dr. L was adamant that he had not written on L’s stomach during the previous week.
Dr. L stated that his letter to the paediatrician was a letter of referral and his concerns expressed in that letter were based upon his observations of C masturbating and the “history” given to him by the Mother and the maternal grandmother.
It was his clear evidence that he had written the letter to the paediatrician in his capacity as a doctor and not as a friend of the Mother.
In his evidence, he said that he was present when C hid under the table. When he was questioned further about that he said that he thought he was there.
Dr. L agreed that C sometimes cried if she could not get to the telephone first when the Father telephoned his daughters.
In cross-examination, Dr. L said that he had quite liked the Father but that he did not have a lot of respect for him now and added:
“any man that’s going to urinate over his child”.
When questioned about that, he indicated that C had told him about it.
Dr. L indicated that the Mother had discussed with him her fears that C had been sexually molested by the Father.
When he was re-examined by the Mother’s counsel, Dr. L was asked further questions about C telling him that her father had urinated on her. He said that in the Mother’s home the toilet is very small and that it is difficult to close the door. Consequently, there is a temptation to leave the door open if one is alone. On a particular day in December 2002 he was in the toilet and the girls were playing outside. He said that to his horror, the girls had run in the back door and that he had called out:
“Girls, don’t come here, I am doing a wee. Young girls shouldn’t watch men do wees.”
He went on to say that he came out to wash his hands in the kitchen and C was laughing and saying:
“I have seen Daddy wee wee. He put my head between his legs and he weed over my hair and down my face.”
He went on to say:
“The poor little mite was laughing about it, so I did not say anything that would imply that was bad or anything like that. I thought it was best to let that go. But I thought, you poor little bugger, basically”.
Dr. L then discussed the physical difficulty that would be involved in a man urinating on a child in the fashion suggested by C. He later said that he accepted what C had said at the time because nothing would surprise him as a doctor.
When it was put to him, Dr. L did not accept the Father’s explanation that the girls had run into the toilet while the Father was standing there with the door open.
Credit
I find that where the evidence of the Mother and that of Ms. J conflict, the evidence of Ms. J is to be preferred. In her recording in her affidavit of what Ms. J told her, the Mother has exaggerated significantly. For example I find that Ms. J first became concerned about whether the Father had been masturbating when she and the Mother were having their discussions at the hotel. That was where she heard about the Mother’s concerns and only then did she consider that possibility.
I also find that Ms. J had a grievance against the Father at that time (probably because she was upset that he had found another partner) and she was quite willing to paint him in a bad light. Unfortunately, that only fuelled the Mother’s concerns about him.
The Father was generally honest and straightforward and where his evidence conflicts with that of the Mother, I find that his version is to be preferred. For example, I have no hesitation in finding that C started her rubbing herself on furniture prior to separation and that he and the Mother had discussed it, leading to him telling Ms. J that the Mother was dealing with it.
I have some difficulty with the evidence of Dr. L. I have no hesitation in concluding that he was deliberately not telling the truth when he denied writing on L’s stomach. Questions about that were clearly put to the Mother and Dr. L by the Father’s counsel on instructions from the Father. The Mother clearly accepted that it had happened, yet Dr. L was adamant in his denial.
I also gained the clear impression that Dr. L was inventing evidence as he was questioned. For example, he said that he was present when C had hidden under the table but when he was questioned further about that he said that he thought that he was present. Surely, if he had been present on 22nd April 2002, the Mother would have mentioned it in her affidavit and he would have included that in his document said to be a proof of evidence.
The consequence is that I conclude that the evidence of Dr. L is somewhat tainted.
Issues
The issues in the matter appear to me to be as follows:
a)Is there evidence from which the Court can conclude that the Father has sexually abused C and/or L?
b)Even if the Court cannot come to that conclusion, is there sufficient evidence to conclude that there is an unacceptable risk to the girls?
c)Did the Mother have a reasonable excuse not to comply with the contact orders?
d)Should the contact orders be discharged?
I shall deal with each of those questions in turn.
Is There Evidence of Abuse
It seems to me that the Mother’s claim that there may have been abuse is based upon her concerns about the following:
a)C began her “uncharacteristic behaviour” of rubbing her vaginal area against furniture after separation, which stopped when the Father was away and resumed when he returned
b)C did not want to talk to the Father on telephone and on one occasion (22nd April 2002) she hid under the table.
c)C said that her father had hurt her at the pool.
d)L and C both had sore mouths and lips on occasions
e)L drew a picture which depicted an erect male penis
f)The Father may have been masturbating while C was in his bed at the home of Ms. J.
g)The Father showered with L
h)The Father made C put her head between his legs when he was urinating.
As mentioned above, I have formed the view that C’s masturbatory behaviour started prior to the parties’ separation and that they discussed the matter. However, I need to decide whether the behaviour is an indicator of sexual abuse.
Masturbation is something that is discovered by all children at some stage. It occurs earlier with some children than it does with others, and some children indulge in it more frequently than others. In itself it is not an indicator of sexual abuse. However, I can understand the concerns of the Mother in relation to C, especially as her elder daughter clearly had not indulged in such public displays.
The fact that C did not want to talk to her Father on the telephone is not significant in itself. In this regard, I accept that C sometimes got upset because she could not get to the telephone first. However, it is the Mother’s evidence that on 22nd April 2002 C also said that the Father had hurt her at the pool. She is said to have pointed towards her pubic area and said “gina” when asked where she was hurt.
The Father’s evidence was that he played games with the girls, throwing them about in the water and that he may have caught C with his fingernails. He said it was unintentional and that he was not aware of any such incident.
It is significant that C’s own evidence to the policewoman was that she had been scratched when her father was picking her up. It is also significant that C said she did not think that there had been any other times when her father had done anything like that.
One must also bear in mind that if this incident did occur, it occurred at a crowded swimming pool while L was present and Ms. J was also in the vicinity.
Consequently, I accept the Father’s evidence in relation to that matter.
I see nothing significant in the fact that the two children have had sore mouths and lips on occasions. Certainly, it does not suggest any sexual abuse.
Having examined the drawing that L did on 4th September 2002, I cannot see how the Mother concludes that there is an erect penis. It is clear that the Mother has mistaken a leg for a penis and that suggests to me that the Mother is all too willing to see symptoms of abuse where they do not exist.
In relation to the suggestion that the Father may have been masturbating while C was in his bed, I find that Ms. J’ evidence of the incident is confused and I accept that the Father acted appropriately when the children were awake that night and restless. The Mother has quite inappropriately exaggerated Ms. J’ version of that incident and I find that Cl’s own version in her interview with the policewoman is the most likely version. See paragraphs 52 to 55 above.
I accept the evidence of Ms. J and the Father that he did not shower with L.
In relation to the allegation of urinating on C, I accept the Father’s evidence that he has not done so. I also accept his evidence that the children made a joke about the matter after running into the toilet when he had left the door open. That evidence was corroborated by Ms. J – see paragraph 71 above.
Having considered all the evidence in relation to the various allegations, I must conclude that there has been no sexual abuse by the Father of his daughters. I am therefore not surprised that the Director of Public Prosecutions has decided not to take the matter any further.
Is There an Unacceptable Risk?
Given what I have said above, it follows that I am also of the opinion that there is no unacceptable risk to the children of unsupervised contact with their father.
Did the Mother Have a Reasonable Excuse to Withhold Contact?
It is clear that the Mother is relying upon the provisions of subsection (3) of Section 70NE as her defence to the Father’s contravention application. That subsection requires the Wife to have had a belief upon reasonable grounds that she was protecting the health and safety of L and C by withholding contact.
In my view, the Mother’s denial of contact may have been reasonable if there had been some stronger evidence that abuse had been occurring. However, I have found that the evidence does not support a finding that abuse was occurring and also that there is no unacceptable risk to the children from unsupervised contact with their father. It follows that I need to consider the question whether it was reasonable of the Mother to withhold contact if her beliefs were genuinely held, although misguided.
In my view, the answer to that question is to be found in the words “believed on reasonable grounds” in subsection (3) of Section 70NE. In this regard, I have had the benefit of seeing Hannon J’s unreported decision of 10th March 1998 in Kelly & Kobelnek (1998) FamCA 296 where he said:
“In my opinion the Respondent, in order to exculpate herself from the contravention must establish that she has or had a reasonable excuse according to an objective test namely, whether a reasonable person in the position of the mother would consider on reasonable grounds that she had a reasonable excuse for the contravention”.
Those remarks must surely be correct and I find that, looked at objectively, the Mother’s beliefs were not based upon reasonable grounds. In my opinion, the Mother has all too quickly formed an opinion that abuse has occurred without properly considering other reasonable and logical explanations for particular factual situations. Consequently, I must come to the conclusion that the Mother has not convinced me that she had a reasonable excuse for withholding contact.
However, the possibility that the Mother held a genuine but mistaken belief about the possible risk to the children may be relevant to the manner in which I deal with her in relation to the contraventions of contact orders. I will hear further from counsel about that at the next mention of this matter after these Reasons have been provided to the parties and their legal representatives. See paragraph 165 below.
The Other Alleged Contraventions
It is also alleged that the Mother has:
“failed to communicate with the Applicant regarding the children’s long term care, welfare and development”
in relation to schooling and health. However, I find that these alleged contraventions are not proved because:
a)There is no specific requirement in the relevant order to “communicate”;
b)I accept that the Father was out of the country when the children changed school; and
c)I find nothing unusual in the Mother taking the children to a doctor for immunisations, particularly as I accept her evidence that the Father had not discussed those matters with her previously.
It seems to me that these alleged contraventions have probably only been included in the Father’s application because he was alleging contraventions in relation to the withholding of contact. In short, they seem to be just a device to bolster that application.
Should the Contact Orders be discharged?
Given that I have found that there is no unacceptable risk to the children, it is logical to conclude that the Orders for contact should not be discharged. There is nothing in the evidence that leads me to a conclusion that contact is not in the best interests of L and C, and when the Orders were made by consent, I presume that the parties had those best interests in mind.
I will therefore dismiss the Mother’s Application filed 5th February 2003 and it follows that contact should resume in accordance with the Orders of 31st October 2000 without delay.
Procedural
Both parties live in the Hobart area but my next sittings there are not until October. Consequently, I will hand down these Reasons for Judgment in Launceston and otherwise adjourn the matter for mention on the first day of my next scheduled sittings in Hobart.
I certify that the preceding one-hundred and sixty-five (165) paragraphs are a true copy of the reasons for judgment of Roberts FM
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