Wade and Sutcliffe
[2009] FMCAfam 1385
•27 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WADE & SUTCLIFFE | [2009] FMCAfam 1385 |
| FAMILY LAW – Interim parenting – allegations of inappropriate behaviour against the father – the context of the child’s disclosures – unacceptable risk – relevance of recent consent orders – reinstatement of time with the father. |
| Family Law Act 1975, s.60CC |
| Goode v Goode (2006) FLC 93-286 M v M (1988) 166 CLR 69 N and S and the Separate Representative (1996) FLC 92-655 |
| Applicant: | MR WADE |
| Respondent: | MS SUTCLIFFE |
| File Number: | SYC 7703 of 2008 |
| Judgment of: | Altobelli FM |
| Hearing date: | 25 November 2009 |
| Date of Last Submission: | 25 November 2009 |
| Delivered at: | Sydney |
| Delivered on: | 27 November 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Christie |
| Solicitors for the Applicant: | PAUL & PAUL LAWYERS |
| Counsel for the Respondent: | Ms Campbell |
| Solicitors for the Respondent: | H A MIEDZINSKI LAWYERS |
ORDERS
The matter be adjourned to 4 March 2010 at 9.30am for mention.
The Respondent has leave to appear by telephone on this occasion by arrangement with my Associate.
The orders made 11 August 2009 are varied for today, Friday
26 November 2009 only, with the Father’s time to commence at 6.30pm on this date.
On a without admissions basis, the Father is restrained from:
(a)Sleeping in the same bed as the Child [X] born [in] 2005; and
(b)Making inappropriate physical contact with the Child; and
(c)Being naked in the Child’s presence; and
(d)Showering or bathing with the Child; and
(e)Exposing the Child to age-inappropriate material by any medium.
Parties have liberty to apply on 24 hours notice.
IT IS NOTED that publication of this judgment under the pseudonym Wade & Sutcliffe is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 7703 of 2008
| MR WADE |
Applicant
And
| MS SUTCLIFFE |
Respondent
REASONS FOR JUDGMENT
(Ex tempore)
This application relates to [X] who is 4 years old. The applicant is [X]'s father. He is 49 years old, is a [occupation omitted], and lives in [N] in Sydney. The respondent is [X]'s mother. She is 38 years old, is a [occupation omitted], and lives in [M] in the New South Wales Southern Highlands Region.
By way of an application in a case that was filed on 6 November the father seeks certain orders the effect of which is to, in practice, to enforce consent orders that were entered into by the parents on
11 August 2009. The mother makes an oral application to suspend these orders and for there to be supervised contact.
The issue that is raised in this case is whether on the evidence before me there is or is not an unacceptable risk of abuse to [X] if contact is not supervised. The language of unacceptable risk of course comes from the High Court's decision in M v M (1988) 166 CLR 69 and from a long line of cases dealing with allegations of sexual abuse. An equally legitimate approach, I think, in this case is to consider the issue as one of whether there is a need to protect the child from physical or psychological harm, from being subjected to abuse - in other words, to adopt the language of section 60CC(2)(b). At the end of the day these two roads lead to the same destination.
A fairly detailed chronology is required in this case and commences for relevant purposes with the consent orders of 11 August 2009, just over three months ago. These orders provide for equal shared parental responsibility and for [X] to live with the father as defined, and otherwise to live with his mother. Even though this is not the language that the order uses I find it convenient to describe it in terms of the “contact” that [X] is to have with his father.
It is interesting to note that this order is very carefully framed to cover contact in two distinct stages in [X]'s life: firstly, prior to the commencement of primary school and; secondly, after that time. In short [X] was to have contact with his father each alternate weekend from 4.30 on Friday to 6.30 on Sunday and then on special days and on school holidays.
There are a number of provisions in these orders that are also relevant:
23. That without admission, neither party shall consume illicit substances while [X] is in their care or associate with other persons who are consuming illicit substances.
NOTATION
24. That both parties acknowledge that in the making of these Consent Orders, neither party relies upon any affidavit in these proceedings.
25. That the Respondent agrees that she is no longer fearful of harassment or intimidation at the hands of the Applicant and that she will take such steps as are available to her to cause the Domestic Violence Order consented to without admissions by the Applicant on 27 April 2009 to be cancelled or discharged.
I also make the observation that these orders have obviously been very carefully drafted and appear - though I acknowledge this really is nothing more than an inference - to be the product of much consideration and negotiation. The father was represented by his current lawyers and the mother by Hamish Cumming Family Lawyers, and both firms are highly respected specialist family law firms whose practitioners regularly appear before me.
Neither parent produces any evidence of difficulties with contact prior to on or about 18 October. The father asserts and the mother does not seem to deny that he had contact in accordance with the consent orders and this means that based on the consent orders [X] would have spent about five or six weekends with his father and the last weekend of contact was 16 October.
In the mother's affidavit that was sworn on 25 November 2009 - and in this regard I note that the mother's evidence is filed after the father's evidence - she deposes at paragraph 14 that on 18 October [X] had a sore mark on the area above his top lip and a chipped right eye tooth when he came home. The mother deposes that the father explained that [X] fell over when chasing his friend, [Y].
This was later confirmed to the mother by [Y]'s mother. The mother's evidence indicates that she was clearly upset that the father did not tell her of the injury at an earlier time and in fact complained about this to the father by telephone in what she describes at paragraph 17 as a “firm and calm” manner.
The mother's own description of what she was trying to achieve in this telephone call is - and I quote:
I was attempting to inform him how to be a more responsible parent.
She says that the father was agitated because of this. [X] was present during this telephone conversation. Both the stated purpose of the telephone call and the fact that [X] was present provides some insight into the mother's perception of these and later events.
The tooth issue must not have been a big concern for the mother of itself because she did not take [X] to the dentist until 28 October 2009, and in this regard I note that this is a different date to that which is asserted by her at paragraph 16 of the affidavit. Nonetheless the annexure C to the mother's affidavit is a report of Dr M, the dentist, and it confirms that the attendance was on the 28th.
I summarise the contents of this report by saying that whilst Dr M noted enamel fractures to teeth 51 and 61 he was not able to say that these were caused by the fall and, indeed, in his report he offers another explanation. In any event, he says there was no recommended treatment and certainly the tone of the letter is that this was not a major issue.
At paragraph 18 of the mother's affidavit she deposes to [X] still being upset about the fall and she goes on to say certain things:
18. After the conversation ceased with [Mr Wade] I attended to [X] who was still upset about the fall. I said to him that “daddy should have told mummy that you had a chip in your tooth and you should not have to feel upset by telling me yourself, daddy is a naughty daddy for not telling mummy that you hurt yourself” [X] then said “oh Mummy, don’t call daddy a naughty daddy” I then said, “If daddy has been a naughty daddy then I can call him that” he responded with “If you call daddy a naughty daddy he will hurt you” I said “Daddy cannot hurt mummy because we do not live together anymore”. [X] has seen Mr Wade on many occasions be violent, aggressive and verbally abusive to me. [X] said “Sometimes daddy is a naughty daddy and sometimes he is a good daddy” I said “when is daddy a naughty daddy?” [X] said “when he pokes me in the flat part of my back for a long, long time when I am trying to sleep”. I asked “Show mummy what he was doing”, [X] then indicated his back and that he could not see, and said “he was going poke, poke, poke, poke, poke, poke, poke, poke, poke, poke, poke, poke, poke, poke, poke, poke” I asked “where were you when this happened?” he said “it was night” I then said to [X] “but it was a game that you were playing with daddy”, and I recall [X] said to me “No, it was not a game, I wanted him to stop I was really tired mummy”.
The first limb of the mother's case that there is an unacceptable risk of abuse is [X]'s disclosure about poking in the flat of his back whilst in bed. This disclosure, however, needs to be considered in the context of the mother's comments preceding it wherein she says to [X], in effect, that:
Daddy is naughty
and the comments about - and I quote:
Daddy hurting mummy.
I note that the mother asserts at paragraph 18 - and I quote:
[X] has seen Mr Wade on many occasions be violent, aggressive, and verbally abusive to me.
I further note the inconsistency between this assertion and the terms of the consent orders, as well as order 25 of the same.
The next event is that the mother calls her friend, Ms J, having said to her on the telephone - and I quote:
[X] is saying some stuff that is seriously worrying.
By the time that Ms J arrives 20 minutes later paragraph 19 of the mother's affidavit records that she said to Ms J - and I quote:
[X] had made allegations against his father that I feel are extremely concerning.
Again this provides an insight into the mother's perception of these events. On the mother's own evidence it is difficult to see how what [X] said is elevated to an “extremely concerning” allegation against his father, but that did not deter the mother from, in effect, creating the opportunity for [X] to repeat these comments to Ms J and for Ms J to record them.
The record of this is annexure D to the mother's affidavit. It is a document signed by Ms J dated 1 November 2009, 13 days after the event. The account is similar but not identical to what [X] said to his mother and one significant matter, however, was that [X] asserted to Ms J that the poking was in the back and that it continued until it was morning.
I do not know whether Ms J took this to be literally true, which is inherently unlikely and therefore implausible, or an exaggeration, which might have warranted a degree of caution and circumspection in relation to the allegation.
The mother's perception of these events is further evident by paragraph 21 of her affidavit. She calls Mr M, a Department of Community Services Health Care worker and a friend, to speak to [X]. By impersonating the children's character, Buzz Lightyear, Mr M speaks to [X] and [X] confirms once again that he was poked in the back, but this time he adds a new disclosure - and I quote:
That daddy put tape on my mouth
The mother also records that he said - and I quote:
to stop me from screaming.
Curiously, this is not recorded in annexure D, the statement of Ms J, or annexure E, the statement of Mr M. This is a significant omission which does lead me to doubt whether [X] did in fact say the words:
to stop me from screaming
though I cannot of course make a finding in this regard. In any event, the disclosure about the tape on [X]'s mouth is the second limb of the mother's case that there is an unacceptable risk of abuse.
I note that according to the contact orders contact was to conclude at 6.30 pm, but the mother says she first called the father at 4 pm at paragraph 17, and then at 7 pm, paragraph 22. On the mother's version of events between 4 and 7 pm the mother says that [X] made disclosures about his father in relation to poking and the tape across his mouth to the mother and two witnesses. There can be no doubt that the mother's anxiety was increasing over this period and this is evident from her own evidence; namely at paragraph 22, as well as the statements of Mr M and Ms J.
According to paragraph 24 of the mother's evidence she put [X] to bed with Ms J present in the room. From the mother's affidavit if her evidence is set out chronologically this was some time between 7 and
8 pm when she texted the father, and in this regard this is set out in paragraph 25. At paragraph 24 the mother goes on to record [X]'s disclosure that the father had used his finger and penis to poke him in the back, and I extract the relevant part of this evidence and I quote:
[X] said to me, "I like daddy during the day but not at night." I said to [X], "Was daddy's face, penis, knees, or nose or something else poking you in the back as well as the finger or was it just his finger?" [X] said, "His finger and his penis."
It is clear that this was not a spontaneous disclosure and that it was the mother's suggestion that introduced the word “penis”. Ms J was obviously not in the room when this disclosure was made. The disclosure relating to “daddy's penis” is of course the next limb of the mother's case of unacceptable risk of abuse.
The mother asserts that at about 8.15 pm she told the father about the disclosure in the presence of Ms J, and this was confirmed by way of a text message at 8.44 pm, and this was then confirmed by an email sent to the father on, according to the mother in paragraph 29, the following day.
This email is dated Tuesday, 20 October, and this suggests that the chronology of events by the wife is incorrect by about a day. Of more significance, however, is the inconsistency between the mother's evidence at paragraph 24 where she asked [X]:
Was daddy's penis poking?
and the email where the mother asserts:
Mr Wade,
Yesterday [X] said to me and Ms J ‘Daddy kept poking me in the back, poking, poking, poking, poking’ he kept repeating this. [X] indicated the small of his back, he said that he was ‘tired and wanted to sleep’ but that you kept ‘poking’ him in ‘the flat part of (my) back’. When I asked ‘what part of Daddy’s body was he poking you with’ [X] said ‘his finger and his penis.’
That night I called a health care professional, Mr M, who pretended to be Buzz Lightyear on the speaker phone while [X] was in the bath, this is when [X] said that ‘Daddy put tape across my mouth’. Ms J, Mr M and I heard [X] say this.
[X] said that when you were asleep he ‘took off the tape and put it in the bin’ and that he ‘liked putting the tape in the bin’. He later said that ‘he wanted to scream’ but the tape stopped him.
I am very distressed by what [X] has said and will have him properly assessed by a child psychologist. I am also concerned that [X] has a badly chipped tooth and that didi[sic] not communicate this to me on his return on Sunday, but that [X] told me himself and was upset while telling me.
This morning [X] said to me and Mr R when I asked [X] what the mark on his lip was from ‘it is where Daddy put the tape on me and I pulled it off’
I am concerned and worried that your behaviour with [X] may be inappropriate.
We will meet together with [X] at [H] on Saturday 24th at 1:30
Ms Sutcliffe
The email in question contains this statement from the mother to the father:
When I asked, "What part of daddy's body was he poking you with?" [X] said, "His finger and his penis."
The email is plainly wrong because that is not what the mother asserts happened when the disclosure of the penis was made. According to the mother, [X], himself, did not say “finger” and his “penis”, it was a matter that was introduced by the mother herself.
The email again gives further insight into the mother's perception of these events. The email conveys the impression that the disclosure was a spontaneous one rather than a suggested disclosure insofar as it relates to the penis.
It is clear that when confronted with the allegations the father makes a clear and forceful denial and this, for example, is evident at paragraph 30 of the mother's affidavit in the annexure I which is the email that the father sent back to the mother. In paragraph 31 the mother says that she made arrangements for [X] to see a child psychologist, Mr S. Annexure N is a record of that attendance dated 20 October 2009 and I quote:
On speaking to [X] (mother present) he told me a similar story. He was in bed and his dad was poking him in the back (lower back area indicated). He didn't like it. He wanted to yell but dad put tape over his mouth. Later he was able to pull it off himself. It went for a long time (held up 10 fingers) - a game? Apart from this incident he enjoyed his time with his dad and is keen to go back another time.
I note that, firstly, in these notes [X] made no reference to “penis” and, secondly, [X] stated that he was keen to go back to his father. An issue arose during the course of submissions as to whether the extract of the notes of Mr S, which comprise annexure N, were in fact the complete record.
Ms Campbell, the solicitor for the mother, indicated that it was certainly the complete record known to her. Before I commenced delivery of these ex tempore reasons, however, Ms Middleton, the solicitor for the father, was able to produce a further page of notes from Mr S and those notes are dated 16 November 2009 and appear to relate to a further consultation, this time between the father, [X], the child, of course and Mr S. The relevant part of this document is as follows:
Spoke to [X] alone for 10 minutes about how things had gone and if he was keen to return to his dad's in two weeks - enthusiastic yes.
The context of this further consultation on 16 November will become apparent in due course, but the significance of this document is consistent with the record of 20 October. The common theme is of what Mr S detected to be [X]'s enthusiasm to spend time with his father. It transpires that the mother was either aware of this document or has it in her possession but did not consider that it was relevant and therefore did not produce it to her solicitor or to the court.
In any event, in paragraphs 32 and 33 the mother resurrects concerns about the father taking the drug commonly known as ice even though this concern was so plainly absent when she entered into consent orders on 11 August 2009. It is hard to discern the mother's thinking about the allegations - that is about the drugs - and its relationship to fears about the father's drug consumption in the present events. Nonetheless, her concerns about the father's drug consumption is yet another limb to her case of unacceptable risk of abuse.
The mother sets out evidence about the involvement of the Department of Community Services at paragraphs 34 to 36 of her affidavit. She says that the department could not become involved due to resourcing matters, but at paragraph 36 she goes on to raise issues about the father's alleged arousal about gay porn when using ice based on events supposedly occurring prior to the date of separation.
Again, it is hard to discern how there is any link about the present events, [X]'s disclosures, and what is asserted to have happened during the relationship, or certainly prior to separation. Any such concern, I note, is clearly inconsistent with the mother entering into consent orders recently.
By 4 November the mother deposes in her affidavit to the statement that she made to Bowral police about [X]'s alleged “indecent assault” by the father. This is the mother's own language. It is notable that in her thinking poking with a finger became poking with a penis and escalated to indecent assault. This police statement is not in evidence, which I find curious. What I do have in evidence is a police statement that the mother made on 30 September 2008 about facts leading to an apprehended violence order. In any event, there is no evidence before me of current police involvement or even of current Department of Community Services involvement.
The mother alleges at paragraph 40 that [X] also made a disclosure to Mr R who then made a report to Goulburn police on 6 November. This evidence goes nowhere and is of no assistance in the present context.
In paragraph 40 the mother recounts what she now believes to be a suspicious incident prior to the date of separation when [X] had a fall in the shower whilst he was showering with his father. It is not evidence that is in any way probative or supports the mother's case, but it again provides insight into the mother's perception of events and in particular her ability to reconstruct past events. Any concerns that she had about this incident are clearly inconsistent with her signing of consent orders.
On 24 November 2009, several weeks after the litigation commenced and, indeed, the day before the interim hearing the mother took [X] to another psychologist, Ms N, and this evidence is found at paragraph 61. Ms N's report is annexure P and I read into these ex tempore reasons extracts from that.
Firstly, I asked [X] what sorts of things does he do when he is with daddy and he told me, "I sometimes go in daddy's truck that pulls the boat." He also said, "We go in the boat on the water and daddy sometimes has friends with him." He also said, "I have fun with daddy in the day" and that's all.
Later on she says:
After a short pause I asked [X] if his daddy was only playing a game and he said, "No, it wasn't a game, he was poking me with his penis." I asked him, "How do you know it was his penis; did you see it?" He replied, "No, I thinked it was."
The significance of this report is again a statement by the child that he enjoys his time with his father. Moreover, the doubts that must have been apparent about the allegation of [X] being poked with his father's penis is demonstrated: he only thought this but saw nothing and the context of the mother first introducing the idea of a penis must not be lost at this particular context.
One would have thought that Ms N's report would provide to the mother some reasonable reassurance about [X]'s safety. The mother goes on to say that [X] has suffered night terrors starting from 21 October 2009. Curiously, on this night even though it was 11.30 pm, Mr R was present and filmed these night terrors.
In the father's evidence he denies that he did any of the matters attributed to him. He says the inquiries made by his lawyers indicate that the Department of Community Services is not investigating. He also deposes to the absence of telephone communication.
In the father's affidavit of 24 November he refers to an attendance of Mr S, a psychologist, with the mother on or about 10 November at which agreement was reached for contact on the weekend of
13 November provided it was supervised, and in this regard it was agreed that this would be by Mr C. In his affidavit he sets out the confirmatory email sent by Mr S.
Curiously, the mother's reference to Mr S's involvement in relation to facilitating supervised contact is fleeting and incomplete. She does not even refer to the contact on the weekend of 14 November, but in submissions does not deny it occurred, nor did she cavil with the accuracy of the confirmatory email in question.
The father says the email is evidence of an agreement by the mother that supervised contact occur on the weekend of 14 November and that on 28 November it would be unsupervised provided that [X] and his parents would meet with Mr S on the following Monday.
I am unsure what to make about this alleged agreement. The mother's solicitor asserts it was a conditional agreement; the father says it was unconditional. Insofar as it is asserted that there was an agreement between the parents about a weekend of supervised contact and unsupervised contact I am not able to make any finding about an agreement. However, the evidence that has come to light this afternoon by way of the notes of Mr Wade dated 16 November indicate that whatever happened on the weekend as a result of Mr S's attendance with [X] he was certainly keen to return to his father's in two weeks' time.
The above is a summary of the evidence before the court together with a few observations and the question is does the evidence amount to evidence of unacceptable risk of abuse if [X]'s time with his father is unsupervised? Alternatively, does this evidence suggest that there is a need to protect the child from harm?
The mother's solicitor asserts that the various matters that have been referred to above cumulatively and collectively do constitute unacceptable risk of abuse and the need to protect [X]. The father's counsel says that the evidence does not.
There is no dispute that [X] said certain things. If it is disputed about whether [X] said certain things I think that evidence tends to indicate that he did. Whether these disclosures amount to unacceptable risk depends, I think, on the evidence and on their context.
What is the applicable law in these cases? I incorporate into these ex tempore reasons the statement about what is meant by unacceptable risk as contained in the High Court's decision in M v M (1988) 166 CLR 69.
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. The degree of risk has been described as a ‘risk of serious harm’ (A v A (1976) VR 298 at p 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC 91-830 at pp 76,240-76,242; (1987) 11 Fam LR 765 at pp 770 and 771 respectively), ‘a real possibility’ (B and B [Access] (1986) FLC 91-758 at p 75,545), a ‘real risk’ (Leveque v Leveque (1983) 54 BCLR 164 at p 167), and an ‘unacceptable risk’ (In Re G (a minor) (1987) 1 WLR 1461 at p 1469). This imposing array indicates that the 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 worth stating what should be obvious to both parents in this case; that sexual and other abuse of children does occur in the community, as abhorrent as that may be, with devastating implications for the child and hence children need to be protected from such abuse. However, courts must be vigilant because not all allegations of abuse are true and false allegations may be made either by parents acting in good faith or as a result of misperception of information about the child, or sometimes - one would hope rarely - by parents deliberately fabricating allegations: Fogarty J in N and S and the Separate Representative (1996) FLC 92-655. As Fogarty J said in that case at p 82711:
Ambiguous events often have innocent explanations.
Ultimately, I am bound to make a decision that is in the best interests of a child. In these cases there is a balancing of risk and, specifically, that the risk of harm to the child of having contact outweighs the benefits of that contact. In each case the evidence must be meticulously examined, and if the context allows tested.
Fogarty J in N and S and the Separate Representative at p.82714 said that it was essential that certain questions be asked:
In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as: "What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?"
He says:
This is not a catalogue of the correct questions but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to cases but it is essential that questions like these be asked.
In interim applications like the present one it is necessarily the abbreviated inquiry that is referred to in the Full Court's decision in Goode v Goode (2006) FLC 93-286, but what is significant in this particular case is that it can be decided by reference to the mother's evidence alone so that it is not necessary, for example, for me to make findings on the basis of contested assertions. I simply look to the evidence that the mother has asserted in support of her claim and decide the question of what is in [X]'s best interests under the circumstances.
In this case the solicitor for the mother articulated the risk to [X] as the risk that he would be exposed to further inappropriate behaviour and that the child's perception of past events would be altered. This would be remedied by supervised contact as suggested by the mother.
When one asks the questions referred to by Fogarty J in the context of this case these are the strong impressions that I form even on an interim basis. The context of the first disclosure by [X] about poking in the back was the mother's disapproval of what the father had done in not telling him about what turns out to be a fall that caused no harm to [X]. She clearly expressed this disapproval in [X]'s presence. It was inappropriate to do so.
The mother says [X] was upset about the fall; I wonder whether the mother was more upset about the fall. The disclosure of poking occurs in a context where the mother tells [X] that his father is naughty. This was inappropriate. It can hardly be said that [X]'s disclosure of poking occurred in a neutral setting or context, rather it occurred in a context where the mother was clearly unhappy with the father and told [X] that the father was naughty. Even if I am wrong, however, the assertion of poking is hardly abusive or harmful in the context in which it was made.
What then occurred was a succession of almost cascading events, all of which were initiated by or through the mother, all of which reflected on her clear anxieties which almost inevitably led to more serious disclosures. It was in many respects a self-fulfilling prophecy of the mother.
My comments about the mother's anxiety should not be misinterpreted here. I am not being critical of her. I daresay that any mother who had heard the disclosures made by [X] would become anxious. That is not the question I have to decide. The question I have to decide is whether on the evidence there is an unacceptable risk of abuse to this child.
Others rapidly became involved. Ms J first, then Mr M, then Mr S,
Mr R, Ms N, and along the way the Department of Community Services and Police. The more people who became involved, at least initially, the disclosures became more serious. Poking in the back became poking in the back and putting tape on my mouth, or putting tape on my mouth to stop me from screaming. The mother of course does not appear to notice the significant inconsistency in the evidence of her witnesses and herself about the screaming.
A further escalation occurs when, at the mother's suggestion, [X] states that he was poked in the back with his daddy's penis. It was not a spontaneous disclosure. None of the disclosures are when the context is closely examined, but the momentum of these cascading disclosures gathered, probably fuelled by the mother's anxiety, and all happening in a relatively short timeframe.
Perhaps the most insightful document is the mother's email to the father on the day following the disclosures where further escalation is evident and the mother's complete misconception of these events is apparent. Suddenly [X]’s disclosure about daddy's penis is a spontaneous one rather than one suggested by the mother in the question she asked. Ambiguous events often have an innocent explanation, but ambiguity fuelled by anxiety leads to sinister hypotheses.
By the time [X] goes to Mr S, however, there is no mention of penis and, indeed, [X] affirmed that he wanted to spend time with his father. This does not appear to deter the mother who in her mind escalates this to an allegation of an “indecent assault” when she speaks to the police. Ms N's report should have again arrested or at least slowed down the mother's anxiety when it became patently obvious that [X] did not know whether it was his father's penis and again affirmed how much he enjoyed contact with his father. Indeed, the same comment can be said about the notes of Mr S dated 16 November.
Along the way the mother resurrects allegations and concerns about the father's drug-taking, family violence, and past sexual practices, all of which are totally inconsistent with the mother's actions in entering into consent orders only a few months ago.
On the mother's own evidence it is not possible to say that there is an unacceptable risk of abuse or risk of harm to [X] unless his contact is supervised. The mother is clearly an anxious woman. That is the risk in this case. It is not a case of risk of harm to [X] if he spends time with his father unsupervised.
The challenge to the court is how to restore contact in accordance with the consent orders whilst addressing some of the mother's concerns. I have a number of proposals. Firstly, I note the that the parties entered into consent orders on Wednesday providing for the appointment of an expert and I note that appointments to see Dr Rikard-Bell are scheduled for January. Secondly, I can impose a number of restrictions on the father, though I propose to do this on a without-admission basis to govern what happens during contact, but in the hope that this provides reassurance for the mother.
I will restrict the father from sleeping in the same bed as [X]. Nextly, the father is to not make inappropriate physical contact with [X]. Nextly, the father is not to expose [X] to age-inappropriate material by any medium. The father is not to be naked in [X]'s presence and the father is not to shower or bathe at the same time as [X]. I wish to reiterate that these restrictions are being imposed on a without-admission basis and with an attempt to address the mother's concerns.
[X]'s last contact with his father was only a fortnight ago. The record of Mr Burgess indicates that that was a satisfactory experience. It is interesting that the mother leads no evidence, for example, about night terrors following the weekend of 16 November.
This coming weekend is a contact weekend. These orders are being provided just after 3 o'clock on Friday, 27 November. The existing orders provide for contact to commence at 4.30 pm. For tonight only I will vary the orders so that contact starts at 6.30 pm just to give both parents the opportunity to prepare.
The mother's solicitor in the application asks me to make a recovery order in the event that the mother does not comply with these orders. I decline to do so for the time being. I would like the mother to take some reassurance from the fact that I have reviewed all of the evidence and concluded that there is no risk of harm or abuse to [X] arising out of having unsupervised contact with the father.
In these circumstances the mother should be given the opportunity to comply with the consent orders. I will, however, grant leave to re-list this matter before me on 24 hours' notice should there be any difficulties.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Anthony Thompson
Date: 12 January 2010
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