Wasser and Wasser
[2007] FamCA 163
•9 March 2007
FAMILY COURT OF AUSTRALIA
| WASSER & WASSER | [2007] FamCA 163 |
| FAMILY LAW - CHILDREN - With whom a child spends time - Child abuse - Alleged sexual abuse - Emotional abuse |
| APPLICANT: | Mr WASSER |
| RESPONDENT: | Ms WASSER |
| INDEPENDENT CHILDREN’S LAWYER: | Ms LYNDON |
| FILE NUMBER: | CAF | 547 | of | 2004 |
| DATE DELIVERED: | 9 March, 2007 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | JUSTICE COHEN |
| HEARING DATE: | 21, 22, 23, 24, 25, 28, 29, 30 November, 2005 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms SAUNDERS |
| SOLICITOR FOR THE APPLICANT: | JOSEPH TALLARITA |
| COUNSEL FOR THE RESPONDENT: | Mr ARCHER |
| SOLICITOR FOR THE RESPONDENT: | LEGAL AID OFFICE |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | Ms LYNDON |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | MCGUINNESS ELEY |
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: CAF 547 of 2004
| Mr WASSER |
Applicant
And
| MRS WASSER |
Respondent
REASONS FOR JUDGMENT
These proceedings concern contact between the child, who was born in November 1997 and is 8 years old, and her father, the applicant. The respondent wife asserts that there should be no contact between them or, if there is, it should be limited to telephone, letter and the like or, if it must be face to face, it should be supervised. The applicant seeks a gradual introduction of unsupervised overnight contact each second weekend, during half of each school holiday and on special days. The separate representative largely supports the applicant’s stance.
The wife essentially relies on allegations of the husband’s sexual abuse of the child, sexual abuse of the wife’s son of a previous relationship, A, now aged 18 years, and the husband’s violence toward the child, A and herself. The husband denies the allegations of sexual abuse and largely denies that he has been physically abusive toward them. He says that the wife has made up the allegations of sexual abuse and/or has exaggerated the child’s words to suit her own agenda of removing the husband from her own life; an agenda which requires his removal from the child’s life. While the separate representative does not wholly accept the husband’s denials of violence, on the issue of sexual abuse she accepts the husband’s denials.
The wife is aged 44 years. She is in receipt of supporting parent’s benefits and lives in L in government supplied housing. She has not had formal, paid employment since A’s birth but has done some housecleaning. The child is the only child of the parties. The wife’s other child, A, who was born in April 1987, is the product of the wife’s marriage to Mr R. Mr R was her second husband. She had a short lived first marriage when she was very young but there were no children of that marriage.
The wife, who was born in New Zealand of English and Australian parents, adopted Buddhism when she was 16 years old. It appears to be central to her life. She is closely involved with a Buddhist community which meets at the wife’s home each week to pray and meditate. One room of this home is mainly devoted to a Buddhist shrine.
The husband is a native of Bhutan. He has had permanent Australian residency since 2001. He is 42 years old. He met the wife in 1995 when she came to Nepal on a pilgrimage to a Buddhist holy place. She was still married to Mr R but he did not accompany her to Nepal. He says he had been a Buddhist monk for 18 years at the time and was bound by a vow of chastity or the like.
Notwithstanding his vows, the parties soon commenced a sexual relationship which ended when the wife returned to Australia. The husband told the court expert, Ms H, that the relationship commenced not long after he learnt that the wife had become very upset with and scratched the face of another monk who was on the same pilgrimage because he had upheld his vows by refusing sexual congress with the wife. The husband asserts that the wife is in the habit of providing accommodation for visiting Buddhist monks and Bhutanese students and probably has had sexual relations with one or more of these, thereby exposing the child to experiences which have allowed her to make up some of her more specific allegations and observations which have been construed as disclosures of his sexual abuse of her. For her part, the wife suggests that the husband may not be all he claims and is a confidence trickster and something of an impostor who uses his guise as a monk to extract money from gullible believers. There is no evidence to the effect that he was not actually a monk. He seems to me to regard himself and to be regarded by other monks as a person who was a monk and who continues some of the practises and beliefs he had when he was a monk.
In 1996 the wife returned to the East with A and Mr R. They went together to India for a pilgrimage. By this time the wife and Mr R were divorced. In India they met up with the husband by arrangement then travelled together for 4 or 5 weeks. Mr R did not object to wife resuming her sexual relationship with the husband. In fact, Mr R then went his own way, leaving A with the husband and wife who remained together for another 4 months before the wife and A returned to Australia. By this time the wife was pregnant with the child. She only discovered her pregnancy on her return to Australia.
She then informed the husband she was pregnant and encouraged him to come to Australia to live with her. He arrived here in May 1998, when the child was about 6 months old. His English was less than elementary. The parties married in December 1998 and lived together with some interruptions from the time of his arrival until March 2001. A lived with them during this period as did others, including Mr R. A still lives with the wife, although recently he went to live with his father, who now also lives elsewhere and is remarried, for some months.
In mid 1998 the husband went to Darwin to find work. Although he returned for 2 weeks in late August 1998, he did not finally return to Canberra until about October of that year. The parties’ relationship seems to have progressed relatively smoothly for a short time. They married in mid December 1998 despite the wife’s allegation that the husband raped her on the day he arrived in Australia.
The husband travelled to India to meditate in March 2001. He returned in August or September of that year. The wife claims that separation took place in June 2001 while the husband was overseas. The husband asserts that the parties separated in August 2001 not long after he returned from India. For the purpose of deciding what is in the child’s best interest, it does not matter which of these assertions is correct. A determination of the date of separation is irrelevant to these proceedings, although I note that the parties are now bound by the date of separation alleged in the undefended divorce application which is not before me.
On 27 November 2002 the wife took the child to Nepal. She did not return until 14 January 2003. A remained at home. Mr R originally cared for him but he left for an overseas trip before the wife returned. The husband then cared for A until her return. The wife was aware of the arrangement.
The wife applied for an order to protect her from violence by the husband on 27 January 2004. Although the child was included in the order which was ultimately made, the wife made no allegation of any sexual assault on the child. The incident relied on by the wife for the order occurred on 25 January. There was no contact between the child and the husband between that date and 6 October 2004. Contact on 6 October was in the presence of Ms H, the court expert who had been appointed to provide a family report. Regular contact did not occur until after it was ordered by the Court on 2 December 2004. On that date, Faulks DCJ ordered supervised contact for one two hour period each month at the M Child and Family Centre. Thus, any sexual assault by the husband on the child must have occurred not later than late January 2004 when she was 6 years old.
When the husband arrived in Australia in May 1998 and commenced to live with the wife, the child was about 6 months old and the wife was working as a cleaner 4 to 5 hours each weekday. When the wife was at work the husband cared for the child. The husband was unable to find work when he arrived in Australia, so after about 2 months went to Darwin where he had heard he might obtain a job. He soon returned and the parties resumed cohabitation. They married later that year. The husband had obtained work but was doing much of the housework too. It was common for the wife to go out in the evening and not return until late, sometimes as late as 1:00am. The husband would care for the child and A when she was out. The marriage was neither happy nor stable. The husband claims the wife was suspicious, jealous, bad tempered, volatile, violent, duplicitous, very wilful and, at times, irrational.
He says she was jealous of his relationship with the child, among others. Nevertheless, after separation, he says the parties’ relationship was “amicable” and infers that he continued to see much of the child. The wife did not attempt to prevent him caring for the child away from the presence of others. When the wife worked she would leave the child with him for 4 hours or more. She and the husband saw a lot of each other and helped one another. However, he claims that, in August 2003, the wife commenced to become more and more hostile and distant towards him.
The husband was due to have a months leave from his job from mid December 2003. He asked the wife could he take the child on holiday to the Central Coast of New South Wales during that time. The wife agreed but a few days later asked if she herself could come too. The husband agreed, then, after a few days the wife told him that she and the child would not be going with him because it was “unsafe.” When the husband asked what she meant she told him that it was because he swears in front of the child.
According to the husband, the deterioration in his relationship with the wife coincided with a Bhutanese student, S, commencing to board at her home. The husband had introduced him to the wife and had suggested he board with her. He had been here for a few months when, on 25 January 2004, the husband visited the home so he could see the child. When he did so, according to the husband, S confronted him and told him he should not be there and grabbed the husband, injuring him with his fingernails. The husband says he reacted by attempting to push S away, then hit him in the face with the back of his hand. The wife appeared and intervened on behalf of S. She attempted to remove the husband’s spectacles. He cannot see much without them. He pushed her on the shoulder to stop the attempt, but says he did not hit her. All 3 then argued for a few minutes, then the mother left with the child and the husband and S went inside where they reconciled. When, later that day, the husband telephoned the wife to arrange to see the child, the wife told him she was going to Court and to the Immigration Department.
The wife applied for a Domestic Violence Order on 27 January. An interim order was made. In April 2004, the husband consented to a final order lasting 2 years without admission. The order was to protect the wife but the protection extended to the child. The husband, who was not legally represented and spoke very poor English, was subjected to the usual restraining orders and, in addition, was prevented from contacting the child or the wife unless by agreement or through a solicitor, except that he could speak to the wife once each week by telephone to discuss the child and could, of course, exercise any rights given to him under an order pursuant to the Family Law Act.
The husband immediately applied for contact in the Federal Magistrate’s Court. On 30 August a federal magistrate transferred the matter to the Family Court. He declined to make any interim contact orders. The Family Court ordered that a Family Report be prepared. On 2 December the Honourable Justice Faulks made interim contact orders after a defended hearing. Ms H, the author of the Family Report, gave oral evidence in addition to her report of 12 October 2004. His Honour permitted interim supervised contact for 2 hours once each month. The husband had not seen the child since January 2004.
Between late December 2004 and the hearing before me the husband largely had contact with the child in accordance with Faulks DCJ’s orders at M Child and Family Centre in K until final orders were made on 2 December 2005 at the conclusion of the 8 day hearing before me. According to the husband, most contact sessions were successful. He said, in effect, the child was usually happy and unafraid and unrestrained in approaching him. She seemed to enjoy the visits. The wife failed to attend one contact appointment, but this was then rescheduled.
The visits did not all go smoothly according to the husband. During the first visit the supervisor who was not from M unduly resisted the husband’s attempts to give the child a drink he had brought with him at the instigation of Ms H, presumably as a way to reduce any distancing which the child might have developed toward the husband. Nevertheless, the child seemed to enjoy herself, as she did on the next visit.
The third visit, which was on 19 February, 2005, was more awkward because the husband felt uncomfortable and constrained because Ms H was present as well as the supervisor. Despite this, he thought the child enjoyed herself. On his visit to the child in April, 2005, he brought some gifts for her; some money and a mandala, which she appeared very happy to accept and arranged to bring her more gifts next visit. She chose the gifts she wanted. The husband brought them for her when he next had contact with her. The visit was, as had previously been the case, a happy one, yet, when it was over, the director of the centre informed the husband that when the wife had brought the child to the centre that day she had brought the mandala back and had informed the director that it was to be returned to the husband because the child did not like it.
That the mother did this is clear evidence that she was attempting to alienate the child from the husband. Whether the child liked it or not, the mandala would not have been returned unless this was the case. If the child really did not like it and the wife intended to do nothing to harm the child’s relationship with the husband, she would not have put the child in a situation where she must have felt she was actively harming her relationship with her father by rejecting his gift. Of course, if the wife believed the child and/or A had been sexually abused by the husband, this attempt to distance the child from him is understandable but not excusable because it was in defiance of the spirit of the orders made by Faulks DCJ which were designed to maintain the relationship between the child and the husband until final determination of the relevant issues. The mother’s behaviour in returning the gift was high handed and irresponsible.
The wife’s case is not limited to claims that the husband has sexually abused both the child and A. She says she is violent too, both towards herself, the children and others. She says he is what might be described as a sexual predator. She complains that he attacked her physically and sexually on the first night after he arrived in Australia and did it a second time within three weeks of his arrival. She said he was either violent or threatened violence “on at least a weekly basis” and was prone to outbursts of anger thereafter. I do not understand, why if that is the case, she continued to live with him, then married him after about 6 months from his arrival. At least, this inconsistency gives rise to scepticism about her claims. The lack of detail relating to such a serious allegation as rape leaves room for even greater scepticism.
In August, 1998, when the husband returned from Darwin, he suggested to the wife that he should leave Australia. She tried to convince him to stay, saying “…we need you here.” This, too, is inconsistent with the picture the wife paints of the husband. The wife says that during an incident when he made this suggestion the husband also chased her while he held a carving knife up in readiness to stab her. If this is the case she has failed to explain why she was not actually stabbed and does not suggest he attempted to stab her.
In January, 1999, the wife claims that because she asked him to hold the child while she did some ironing, he threw the ironing board in the air. The wife says she became frightened and while trying to escape from harm she fell down while carrying the child in a backpack which was on her back. A called the police. The police report that she told the police the husband had pushed her but did not want him charged because she feared he might be deported or have his citizenship application refused. The wife now denies the accuracy of the police report in these respects but agrees she did not want him to be deported and says it was because the child would not be able to get to know her father. Yet she says that the husband was aggressive towards A from the time he arrived in Australia and that A used to eat his meals in his room to avoid conflict with the husband.
Among other incidents of the husband’s violence, it is alleged by the wife that in 1999 or 2000 he held her against a door by pushing his forearm against her throat with such force the wife thought her throat would be crushed. In order to escape, she scratched at his eye. At the end of 2000 she says he chased her in anger, pushed her into a chair, kneed her in the chest to trap her there and threatened to break her teeth while he had his clenched fist in readiness to do so. A’s father, who lived in the parties’ home at the time, punched the husband so the wife was able to escape but, while Mr R was trying to reason with the husband, the husband threw the video machine to the ground, kicked the wife and slapped her face.
In October, 2003, the husband, according to the wife, wanted to take the child out for breakfast rather than to school and called at the wife’s home in the morning. When the wife refused to let him take her, he tried to drag her away from the wife so the parties became engaged in a tug of war with the child in the middle. The situation seems to be as adverse to the wife as it is to the husband because of her failure to let go. The husband must have let go because he then threw tea from a cup across the room and followed that by throwing the cup at the wife, smashing it. He then overturned one chair and threw another. For a reason I do not know or understand, the wife then notified the school that the husband could no longer collect the child after school.
The wife says that the child was so aware of the violence between the husband and wife that in November 2003 during contact the child told the husband not to come to the wife’s home again because of the fighting which occurred each time he visited. This is consistent with things the child told her various interviewers in 2004 and later.
The wife alleges that, on 25 January 2004, the husband had telephoned her twice that morning demanding that she bring the child to a park so he could take her on an outing. The wife says she refused because she had made other arrangements. He then telephoned and said he was at the front gate and again demanded that he be given the child. The wife says she then noticed that the husband was sitting on a garden bench in the yard of the home. She saw him suddenly attack S. He hit him on the head, clawed at his throat and punched him. The wife alleges she then ran out and grabbed the husband’s spectacles. She knew his eyesight was poor and felt that he could not fight if he could not see. Quite disingenuously, in my opinion, she also justified her actions by claiming to wish to avoid the husband’s spectacles being broken and protect him from possible eye damage from broken glass. These assertions are so lacking in consistency with her alleged wish to prevent him from fighting with S that it undermines all of her assertions concerning her motives and actions during the incident.
The wife says she gave the husband’s spectacles back to him when “things quietened down” but the husband attacked S again. He was throwing “things” at S so she asked him to stop, but the husband turned on her and kicked her in the leg and punched her in the arm. S then approached the husband and the wife got between them to prevent any further violence between them. The husband screamed “prostitute woman” at her. She then left the home with the child. When she telephoned later, the husband, who was still there, threatened not to leave then threatened to kill the wife. The wife called the police and made a statement. The police summary indicates that S had tried to block the husband’s entrance to the home when he first saw the husband there that day. When the husband pushed S out of the way they commenced to scuffle. The wife says the police report is inaccurate in one respect. It seems to record that the wife was punched by the husband when she intervened in her effort to separate the husband and S. As I have already recorded, the wife claims the husband punched her earlier in the incident. The wife claims this incident was witnessed by the child. She was reduced to cowering in a corner.
It is part of the wife’s case that the husband did not manifest proper parental responsibility towards the child when he went overseas in March 2001 and did not return until September 2001. He had planned to be away for 3 years because he wanted to resume his religious vocation. I think that, irrespective of his motives, in the circumstance that he had conflicting obligations to his child, he did act irresponsibly in this instance. He did telephone on numerous occasions. The fact that he wrote only one letter does not seem to be of much relevance because of the child’s age. On his return, he resumed frequent, if erratic, face-to-face contact with her. He did not have it overnight because the wife would not allow it.
The wife claims that, after separation, she rarely left the husband alone with the child. Even when she worked as a cleaner, she would take the child with her and the husband would, occasionally, care for her for an hour, at most. The wife claims the first disclosures the child made about wrongdoing towards her by the husband were made in 2002. She would have been 5 years old or less at the time. Ultimately, at the hearing, the wife’s allegations against the husband were of the following forms of abuse of the child:
1.kissing her on the mouth with his mouth open;
2.using his tongue during such kisses;
3.touching her genital cleft, penetrating it and stroking her between her labia majora with his finger or 2 fingers;
4.manipulating her to drink his urine and semen;
5.fellatio;
6.ejaculating and/or urinating in her mouth;
7.manipulating her to touch his penis;
8.hitting her to discipline her.
When the wife swore her affidavit on 1 November 2005 she said in paragraph 5., that the first disclosure of abuse took place in November 2002. She gave no indication of what was disclosed. When she gave evidence of a short time later she claimed she could pinpoint the date the disclosure was made as 25 May, 2002 when the child was 4½ years old. She relied on notes she had written a few months earlier. I cannot understand why only a few months earlier she knew the precise date but when she made her affidavit thought the event occurred about 6 months after that date. She alleged in her oral evidence that the child had told her that the husband had told her that the husband had put his tongue in her mouth “to make her like a big woman.” This disclosure is reminiscent of the answers the child gave in response to the attempts of the police to lead her into specific disclosures when they interviewed her on 13 April, 2004 (see from Q128 to A201 inclusive of the 13 April, 2004 interview in Exhibit “K”). The inference from the child’s answers to the police is that she had no knowledge then of the husband doing anything of relevance other than what the mother had told her. The child, in effect, said her mother must know what had happened although she herself could not remember. That could be expected of a 6½ year old being asked to recall an event which occurred 2 years or more earlier.
The wife asserts that, as a result of this first disclosure, she said nothing to the husband but did her best to reduce his level of contact with the child. The wife and the child were in Nepal from late November 2002 to January 2003, so the child did not see the husband. When they returned there were four occasions when the wife left the child with the husband without her own supervision. During one of these, the child and the husband sat on the lounge watching videos with A and his friends for the whole two hours the wife was away. Another instance was also wholly in A’s company. One of the remaining occasions involved only about 10 minutes contact at most and consisted of the husband collecting the child from the home of a friend of the wife who lived across the road from the wife and walking her back to the wife’s home. Once, in late 2003, the husband collected the child from school and had her with him for a longer spell. Once the wife obtained the interim domestic violence order in January 2004, she ended face-to-face contact until Justice Faulks restored it. The provision for weekly face-to-face contact in the orders she obtained in April 2004 was not acted on by the husband.
The wife’s affidavit evidence of the alleged abuse is a combination of the wife’s claimed observations and things the child has said to her. She first noticed that the husband hit the child in 2002 when he was teaching her Tibetan. He would hit her on the head if she made a mistake. In September 2002, after a contact visit to the husband’s home, she told the wife that the husband had hurt her “with his big stick.” If the inference is that the child had been hurt by the husband’s penis, this is inconsistent with the allegations made against him which make up the wife’s case in these proceedings. The only evidence about the child’s genital condition is that she is “healthy”, which I take to infer that there is no medical or examination evidence that she has ever been penetrated.
The next allegation is said in the wife’s affidavit to have occurred in November 2002 when the parties and the child were at the wife’s house. The child and the husband were in the child’s bedroom when the wife, who was not, heard the child cry. When she went to the room and asked the child what was wrong it is alleged that the child informed her that the husband had run his finger up between her legs, over her external genitals and up her torso and claimed he had also “put his tongue in my mouth and kissed me and tried to make me like a big woman.” That the wife left the child alone with the husband after 25 May of that year is surprising as she already seems to have believed that the first complaint which contained a similar allegation had connotations of sexual abuse and had already seen the child wipe her mouth after being kissed by the husband a sign which, by her case, is said to point to sexual abuse. Being lifted by the husband in a manner is also something which the wife must have perceived as having a sexual element by the time the child supposedly made the November 2002 statement.
Yet there is no evidence that, when the statement was made, the wife reacted to it in a manner which, in the circumstances, might be expected. She does not suggest she remonstrated with the husband or accused him of wrongdoing despite the child’s statement in his presence. All she claims to have done is watch the husband “more closely” so she later saw him “tongue-kiss” the child. The wife then told the husband he should not do it because it is “disgusting.” The wife admits telling the child “big people always kiss children on the cheeks or forehead. Never on the lips.” I do not accept that a small child’s father should not kiss her on the lips or that such kissing necessarily has any sexual connotation. The same can be said of the manner in which the wife described the husband as holding the child when he would lift her.
An observation the wife made of the child which she suggests is indicative of following the husband’s example and therefore of the husband’s illicit sexual contact with the child is that the child once, in 2003, touched the wife’s genitals and buttocks. The wife claims that when she asked her what she was doing the child replied that the husband had done the same to her when he had collected her from the neighbour on the occasion I have already mentioned. If it were not for the child’s reply, it would be difficult to regard her behaviour as resulting from anything more than her curiosity. The wife says that she saw the husband “tongue-kiss” the child and, at other times, he would hold her by placing his hand on her upper thighs or by cupping her with one hand between her legs and “cupping” her genitals. Ordinarily, there would be nothing exceptional in a father holding his young daughter in these ways.
The wife relies on a claim that from mid 2003 the child developed the occasional habit of masturbating in public. So far as I know, there is no reason to regard such behaviour as more consistent than not with experiences of sexual abuse irrespective of the relationship of the occurrence and contact with the husband. The wife relies on other behaviour by the child which, on its face, would seem to be even less likely to be a manifestation of sexual abuse. There is no evidence to suggest that the child has shown any symptoms which indicate that she has been sexually abused from any expert who has been available for cross-examination. There is some documentary material which suggests she has. This is semi-informed and uncritical opinion of a non-expert or non-experts usually employed by government or semi-government bodies to provide services to women. I do not accept this evidence.
There is an incident which the wife says she saw which could amount to part of an attempt at sexual assault. She saw the husband “running his finger up her (the child’s) inner thigh towards her genital region.” Such action could not be said to be more than innocent without more detail, especially as it took place while the wife was in the same room, although she was in the course of leaving and had had her back turned to the husband and the child when she looked around at them. Contrary to this type of allegation, I do not think it is likely that the husband was so obsessed with sexually assaulting the child that he would do so when presented with such a limited opportunity.
The wife alleges that the child said things to her more than once to the effect that the husband was a bad man and complained that he would put his tongue in her mouth by force despite her attempts to resist. It is said that in February 2004, which must have been a long time, two years, since he had the chance to do it other than very rarely, the child explained how he forced her to do it. Two years is a long time for the description the child gave as well as for the child to regard it as worthy of complaint. Nevertheless, according to the wife, the child has made other complaints from time to time. They started in late 2002. I shall list them:
September, 2002: the child said to the wife “[the husband] hurt me with his big stick,” leaving the inference open that the “big stick” was his erect penis.
November, 2002: The incident already discussed when the father is alleged to have ran his finger up the child’s inner thigh. She also said “He put his tongue in my mouth and kissed me and tried to make me like a big woman.” The child was just 5 years of age when she is alleged to have said this. It is difficult to believe she would know and understand enough to reach this conclusion.
February, 2004: She said that although she tried to prevent the husband from kissing her open mouth he would force it open.
6 July, 2004: She said “I don’t have a gina” meaning “vagina” and went on to say “[…] (the husband) broke it” and “He pulled at it like this.” She demonstrated this by pulling at her panties over her pubis and told the wife it happened “When you weren’t looking.”
17 July, 2004: The child said “Can I tell you something mummy?” and after the wife agreed that she could “[the husband’s] penis smells bad like pooh.” However, when the wife asked how she knows this she did not, if the wife is to be believed, say anything which might implicate the husband in wrongdoing; she said “He told me.”
mid 2004: The child told the wife that the husband had told her she would get into trouble if she told anyone and that is why she had not said anything earlier. It is not known whether this was allegedly said before or after the disclosures already listed here, but it was, the wife says, probably after the child started sexual assault therapy. The child received sexual assault therapy at the Rape Crisis Centre from July, 2004 until February, 2005 when Faulks DCJ restrained the wife from permitting her to continue with it. By that time she had had 15 sessions of “play therapy” usually lasting one hour per session at the Rape Crisis Centre. Her therapist was a Ms C.
The play therapy at the Rape Crisis Centre seems to have been non-suggestive, non-interventionlist, responsibly conducted and to be highly unlikely to have done the child any direct harm. It is said to have been non-directive, but the very method used was to wait until the child said or did something which would present an opportunity to lead the child to disclose abusive events or fears which would then be taken. The counsellor would respond in a manner designed to draw disclosures and concerns out. It was not really non-directive. However, if she has been sexually abused, it is difficult to understand from the report of it, which is Exhibit “C,” how it could have helped the child.
This report is quite enlightening. It contains a record of the wife’s telephone conversations with the therapist. The wife made allegations about serious disclosures by the child which have not been included in her evidence or otherwise alleged. The claimed disclosures are quite detailed and such disclosures make it seems more likely that the child had been sexually abused. They are not the type of statements which would be easily forgotten. They are such that they would probably shock any mother whose young daughter made them to her. They would be likely to bring immediate action either by complaint to the police or the child welfare authority. Not only did the wife not do this at the time, when the child told her of the abuse she telephoned Ms C and complained in detail about some of the disclosures the child made but did not mention others. She failed to tell the therapist of some of the disclosures which are contained in the wife’s affidavit.
According to Ms C, the child made disclosures on 5 and 12 October, 2004 and played with male and female anatomically correct dolls in a way which would suggest that what she was doing with them was something she had experienced. However, it was not suggested that she did anything with them which indicated she had been subjected to sexual assault and Ms C has no academic qualifications as an expert, although she has been to training courses for counsellors and has been one since 1965. I am not impressed by the level of her learning but regard her experience as sufficient to qualify her as an expert on sexual abuse of children. She has about 10 years experience in that field. Nevertheless, I do not regard Ms C as a credible expert.
On 5 October the child brought a book in which she had already written to the therapist. She must have shown it to Ms C. She had written that the husband had touched her “tooch”, which probably meant her buttocks or her external genital area. She had also written that the husband had made her drink his urine out of his penis by tricking her into believing it was water. She stated that he had put his penis in her mouth and demonstrated that he put his finger in her vagina.
On 12 October, 2004 the child told Ms C her father “touched my vagina and he touched my tongue and kissed me. I was very scared.” The juxtaposition of fear with touching which is unlikely to have made a small child afraid seems to have been more the product of outside influence than experience. However, the child also said: “He made me drink wee and out of a jug. He put wee in a jug and pretended it was water. He did most very bad things. He’s from Bhutan, he does gambling, he stole two thousand, he stole from a very high lama and he’s dead now, he does black magic and that makes people get very sick.” It is inescapable that what the child said was at least in part the result of what she had heard from an adult or adults. It could not have come from her personal experience and understanding. Ms C does not seem to have considered this. There is evidence from the wife and some of her witnesses which is intended to prove part of her case which seems to be that the husband gambles irresponsibly, borrows money without repaying it and uses false pretences to extract money from people by false pretences. There is also evidence that the drinking of urine is associated with some form of black magic among people of the husband’s cultural background.
Ms C seems to have placed some weight on the fact that the child played by putting naked dolls; anatomically correct male and female dolls, to bed together and called them mum and dad. She seemed to suggest that this might show that the child has been exposed to sexual abuse. It may have been intended to merely show that the child had seen her mother and a man, possibly her father, naked and in bed together. I cannot accept that this provides any assistance in deciding whether or not she has been sexually abused. It is noteworthy that the dolls were provided to her to play with without any clothes, so if she wanted to play mothers and fathers with them and put them to bed she did not specifically choose that they be naked. If she had deliberately chosen for them to be naked in bed together this would still have no forensic value. There are many otherwise righteous people in our community who are in the habit of sleeping naked and who are unafraid to allow their children to see them when they are naked in various normal situations within their homes. I was rather surprised by the attitudes of more than one of the witnesses who seemed to expect that the child would not have seen the husband naked unless he had sexually abused her. Ms H seemed to me to take that view. I do not. The wife herself, allowed her son A to bathe naked with the husband, if A is to be believed. If the husband is to be believed, the wife, at least once, was naked when she was at home with Mr R although divorced from him and married to the husband. I believe this element of the husband’s story.
August to September 2004: the child said “I’ve got something to tell you. Come into the spare room.” When the mother did she said “Mummy, you know when I did the pooh pooh outside [the husband’s] door at [W] and you and [P] left me there with [the husband]” and “Well […] (father) asked me if I wanted to drink and then he went to the toilet and came out with a jar of liquid.” When the wife asked her what colour the liquid was, the child said “Yellowish brown like his penis. He told me to drink it. I didn’t taste it. Then I tasted it and it was wee wee. Then he said it wasn’t but it was. I spat it out and I coughed and coughed and I still coughed.”
The reference to the time the child is said to have defecated outside the front door of the father’s home is a reference to an incident which is alleged to have occurred when the father lived in W in November, 2002. The parties had seen the child’s stools near the front door. When she questioned her, the wife alleges the child told her she relieved herself there because she felt the father’s toilet was too dirty to use. When the wife asked her why she did not mention the additional facts at the time, the child said she had been too embarrassed to do so in front of the wife’s friend, P, who was present and felt she might get “into trouble.”
1 October, 2004: When getting ready to see Ms H, the child said to the wife “Mummy, I have something to tell you about [the husband]. He got my hand and made me touch his penis. Then he held his penis and put it in my mouth. It smelled like poo and wee wee fell down my throat. And I holded his arm and got it out of my mouth. And then he touched my vagina and put his second finger up in it.” The child showed the wife her index finger and demonstrated how she held his arm on the wife’s arm. The child went on to say, “There were two times, first this time and then when he made me drink his wee-wee and he told me it was water.” The wife and the child had not been talking about anything prior to this. The wife said “you didn’t do anything wrong […]. It’s not your fault. There’s nothing for you to feel bad about.” The wife said this because, when the child first said she had something to tell me, she looked afraid; as though she expected to get into trouble.
8 October, 2004: The child said “Mummy, when [the husband] did wee-wee in my mouth it was in [W]. I was sitting on the bed in the lounge room and he said he was going to feed me.”
18 March, 2005: The child said to the wife “[the husband] took my clothes off. I was on the Buddhist bed when he did that thing to me.” The wife said “What do you mean the Buddhist bed?” The child said “The bed in [W]. It was all yellow and beautiful and wooden like our bed.” She went on to say “He had a black mark on his penis. You know the brown skin on [D’s] willy? When he pulled it down and you see the pink thing and I had to touch the pink part. And I had to drink from it. It had a black mark there and he scratched it and it bled and bled and it was yukky.” “[D]” is a name the child uses to refer to the husband.
2 April, 2005: The child said to the wife “Children can marry their mother and father if they are very good. [The husband] said he is a very good father so I can marry him.”
3 April, 2005: The child said to the wife “When he did that thing in my mouth I vomited on his penis and all my bones shaked and I thought he was killing me and I thought I was going to die specially when the wee wee went down my throat. Then he said to me, not to tell you mother because she won’t marry me again and I won’t be with my […] (daughter).”
20 April, 2005: The child was writing something and talking at the same time. The wife heard the child say “[The husband] put his penis in my mouth and I didn’t like it. And he said it was Bhutan white coconut but it was wee and it was soft and hard.” The child clutched at her face and puffed out her mouth.
3 April, 2005: When the wife and the child were visiting a friend in the same suburb as one of the husband’s alleged girlfriends; P, lived: “We shouldn’t be here. I don’t feel safe. We should go home now” and “[The husband] is at P’s house having sex with her.” Whereupon the wife asked her what she meant and the child replied “Doing what he did to me.”
The first allegations of a public nature the wife made about the husband’s alleged sexual abuse of the child occurred when, in March 2004, the wife told the child’s school that the child had been sexually abused. The wife said she informed the school so it would be able to make allowances for the child’s poor performance.
The school, in conformity with its legal obligations in such an event, reported the matter to the Office for Children Youth and Family Support (OCYFS). It is probable that the wife told the school that the husband had abused the child inappropriately by putting his tongue in her mouth. She may also have said that the husband had stroked her and in doing so had touched her external genitalia. The OCYFS referred the matter to the Federal Police who, on 13 April 2004, interviewed the child. They recorded the interview. There are more than 200 questions and answers. This seems to me to have been far too onerous for a six year old, especially one who, as the child was, was struggling at school by comparison to other children of her age. The clear evidence is that she suffers from intellectual disability. This disability is demonstrated by the examples of her writings which are in evidence.
The child made more disclosure in this interview. In answers A69 and A73 she disclosed that the husband “hits” her. What is clear from the child’s answers at A59 to A66 is that the wife had prompted the child to tell the police “Everything her does” (A66). The police seemed to be very keen to get the child to make a disclosure. By question Q109 the interviewer had commenced to tell the child that she should tell her of things that she might be afraid of or have happened to her which were not “right.” In Q12 the child was asked “…your mum’s told me, right, that [D] [the husband] might have hurt you. Made you feel uncomfortable. What can you tell me about that?” The child’s answer was consistent with her prior answers when they were attempting to drag answers which suited their cause out of her, she said “I don’t remember about that.” That did not prevent the police from immediately repeating the question in an even more suggestive way. This time the child was asked whether the husband had ever “touched you or hurt you.” The child’s answer was the same as before. The police then changed interviewers in their efforts to get the answers they wanted and expected by polluting the child’s mind. Q119 concludes “You know before you said that [the husband] sometimes hurts you? Tell me about that.” It was quite wrongful of the questioner to say this, particularly because the child had not said that the husband “sometimes hurts” her. She had said that the husband “sometimes hits” her and had specifically corrected the interviewer when, after giving this answer, the interviewer rhetorically repeated “He sometimes hurts you?” (Q68). By answer A124, there had been sufficient interference with the child’s thought processes to have her say the husband had “hurt” her.
A remarkable example of questioning which demonstrates a risk in asking little children leading questions is contained in this record of interview. The answers undermine what the child earlier may have said to a Ms T. The relevant part is:
Q134:Oh, okay. So you know how married people sometimes do things together?
A134: Yes.
Q135: Yeah. Like big people.
A135: Yes.
Q136: Has [the husband] ever made you feel like that?
A136: I don’t know.
Ms T’s affidavit evidence is that in late March or early April 2004 the child had said to her that the husband had “kissed me like a grown up woman and stuck his tongue in my mouth. And he touched me on my vagina.” This disclosure was allegedly made while the child was at a restaurant with Ms T and the wife. The child’s failure to repeat such a clear and precise allegation suggesting a knowledge of adult ways beyond that which might be expected of a child of her age and ability to the police only days later seems to indicate, if it was said to Ms T, it was said after the child had been coached by the wife. Q139 and the subsequent conversation until and including the answer to Q148, when the child said “Well he kisses me in a terrible way” are loaded with an attempt by the questioning police woman to coax the child to disclose, for the sake of the recorded interview, what it is clear the police had already been told she had earlier alleged. The questioning continued in the expectation of further disclosures which must have been fuelled by attempts to lead the child without appearing to a Court, and possibly a jury, to be leading. The police succeeded in clearly demonstrating that the child did not know what it was that had actually been done which she described as “terrible” or why it was “terrible”. They do show she had been coached. She must have been repeating the words of an adult, highly likely to be the wife, when she said “..children don’t get kissed like that and it was not good” in A159 on being asked why it was “terrible” because, in A103, she clearly said she did not know what it was that the husband did which was “terrible”, only she knew the husband did it.
Ultimately, in answer to the continuing barrage of questions by the two police officers conducting the interview, who incidentally have the same surname, the child told them what ought to have been obvious to them; that although the child did not know what “terrible” thing had been done to her by her father, “…mummy knows”. I interpret as having only one logically and realistically possible meaning; that the wife knew because the wife coached the child about what the wife now alleges had occurred, that she had made it up and that the child had either never disclosed anything like that alleged, although, at times, she had, to some extent, repeated what the wife taught her and believed what her mother had told her or made up allegations from time to time but did not recall what they were when later expected to repeat them. For the child to volunteer, as she did at A165, that the father kisses her when the wife is “not looking” is highly likely to be the product of the wife’s attempts to pollute her mind. Any unexceptional child of the child’s age would not think that it would be worthy of mention that her father kisses her when her mother “isn’t looking.”
My assessment of this interview is that goes a long way to prove it is unlikely that anything untoward happened to the child at the hands of her father but that the mother is highly likely to have attempted to make the child believe it did and to tell others.
On 25 August, 2004 one of the same two policemen again attempted to extract disclosures of abuse from the child. Two attempts seem to have been made to transcribe the tape recordings of the interview. I shall refer to the second attempt. The child came to the interviews with a letter. The police knew she had it with her before she told them of it (Q57). The child wrote it (A65). She was asked to read it but the tape recording was not transcribed because it was indistinct. When the recording tape was changed the policewoman put to the child that she had been saying that the father had “touched” her “many times” (Q67). The child’s response was “two times” (A68). The interviewer suggested to the child her had told her that the father had “touched” her “on the vagina” when she lived at W (Q84), but a page is missing from Exhibit “K”; page 7of this record of interview; the page immediately proceeding Q84, so I cannot conclude that the child made such an unequivocal allegation. The record of interview then deteriorated into indecipherability. No conclusion can be drawn from it.
This did not stop the police from attempting to interview the child again; this time on 27 April, 2005, 8 months later and a year since the first interview. Constable L was, again, one of those who were present. This time a camera also recorded the interview, but I did not become privy to what it disclosed, if anything. The child must have been primed by someone, probably the wife, to say something in particular and the police knew this (Q48). Her disclosures immediately followed. They are: Q50/A50-A75.
However the interview continued for many questions after these. The questions appear to have been designed to improve the police case against the husband. They do not succeed in doing so. They succeed in demonstrating that alleged disclosures were stage-managed. All were as contained in a book or folder which the police gave the child to read into the transcript (see Q262). Apparently this had been composed before the interview took place and presumably after the previous interview because it was not mentioned at it. It is germane that one of her writings (at Q277) is “[The husband] has hurt my family and he has hurt me. Please believe my mum and what she’s saying because she is telling the truth.” The reference to hurting her family is not a child’s way of thinking and gives the strong impression that it is something the child has written after being coached and influenced to write it by an adult. The plea to believe her mother because her mother, in contrast to the child herself, is telling the truth reinforces this impression. This book did get into evidence. I shall refer to it again later.
Other parts of the book or folder were read by the child, eg at Q353, which are even more suggestive of her mind and written words being polluted deliberately by an adult with a covert but obvious agenda. The reference to “come” is not something a child of her age would write without coaching. She would not know what ejaculation is let alone a common colloquialism for “ejaculated.”
Overall, the material allegedly disclosed in the interviews encourages scepticism. The original tapes or videotape was not tendered so the accuracy of the transcript and, more importantly, the level of distinctness of the material said to be too unclear to reproduce as transcript was not able to be tested. Although, prima facie, the child made quite alarming and serious disclosures of sexual abuse, I could not come to any conclusion other than that what she said was probably so much the product of the wife’s coaching and leading questions by the police, often repeated, especially where she had already given what they must have believed was an unsatisfactory answer to suit their purpose, that it cannot be regarded as sufficient even to raise the spectre of an unacceptable risk of sexual abuse to the child at her father’s hands. For a child of her age and abilities to be asked so many repeated questions was bound to risk inconsistent answers. Of course questions were only repeated where such inconsistencies were sought by the police because the original answer did not suit their purpose. I do not accept that, where there was inconsistency, the earlier answer is less likely to be accurate than the ultimate answer.
A, aged 17 at the time, was interviewed by the police in October 2004. He was then living with his father. Originally, in the interview at A30, he said “yeah, he showed me his penis-yeah, kind of like encouraged me to touch him and stuff.” This allegedly occurred in India in 1996 when A was 8 or 9 years old. It appears from what was later said at the interview, see Q46 and those which follow, that while A was having a bath with the husband with the wife’s knowledge and consent, A saw the husband naked and the husband inadvertently touched A’s penis with his foot. About a week later, while the wife was present, but with her back turned, the husband started playing a game with A. He would lift up his robe and expose himself to A for fun. They would then laugh but say they were doing nothing when the wife asked what had made them laugh. It is said in A48 that this game evolved to the stage where the husband encouraged A to touch his penis in fun by gesturing that he should do so. The gestures were by facial expressions. He only touched his penis once.
In this interview A also said he saw the husband do things which could be interpreted as sexually assaulting the child. The part of the interview where this were alleged was undertaken in slightly suspicious circumstances. Apparently, previously, a police officer had earlier attempted to interview A when he had attended the police premises with his mother but the interview had either not taken place, failed or had been unsatisfactory (see Q177 to A180). Ultimately, A alleged in the interview that the husband had used his tongue when kissing the child and had touched her external genitalia by putting a finger between her labia majora. Bearing in mind A’s age and that he felt the kissing was in fun and was not intended to be sexualised and that it and the touching were in A’s presence and that A may have later understood what he saw to be wrongful rather than innocent, as he originally judged it to be, the evidence by no means strongly favours a finding of sexual abuse by the husband of the child. After all, even fathers must clean their children or touch then while carrying them. The circumstances which the touching is said to have occurred were not investigated further. This is unsatisfactory.
The affidavit A swore is largely consistent with the things he told the police during the interview, although in the case of the allegedly abusive touching of the child’s genitalia, it makes it seem more innocent.
Two interviews between A and counsellors became part of the evidence. Little of relevance was discussed. The interviews confirm my impression from all the other evidence of A’s observations and experiences relating to allegations. It is that it is highly likely that the abuse he allegedly suffered did not amount to abuse or any wrong doing. It is likely to have been no more than relatively harmless fun or male game playing. Ms H seems to have suggested this to the wife or in her oral evidence before Justice Faulks. It does demonstrate a distinct degree of immaturity and crassness in the husband. The allegations A makes of abuse by the husband of the child are likely to be based on distorted perceptions of innocent acts he has seen and things he has been told by others, including the child. In his oral evidence he said that the child told him she had been sexually touched internally, that the husband had put his penis in her mouth and had penetrated her with his penis. The child told A these things a little before late April 2005 at a time when she was 7 years old. The evidence contradicts penile vaginal penetration.
In his affidavit, A said he had seen the husband kiss the child on the mouth when both had their mouths open and press his tongue into her mouth. I don’t know how he could have seen this but, if he has, that would not be sexual abuse and alone would not be evidence of an attitude by the husband to the child which was other than consistent with that of a loving father. He said he had also seen the husband run his hand up the child’s body from her crutch to her head. He saw him do both things a few times. He did not regard them as having any sexual implications at the time. That they were not done furtively, because A was present, reinforces this possibility.
The single court expert, Ms H, first saw the child, her parents and A in late September 2004. She interviewed the father again in mid December 2004, observed the contact which took place between the child and the father on 19 February 2005 for 2 hours and interviewed the child immediately after it. She read considerable material which came before the court and some which did not. She produced 3 reports which are in evidence, those of 12 October, 2004, 1 March, 2005 and 10 November, 2005. She also gave oral evidence.
When Ms H interviewed the child in September 2004, rather than demonstrating fear of the father, she was keen to see him initially but unwilling to let the wife know of her keenness. The only disclosures she made were in relation to being hit by the father, to being forced to drink urine and to open mouthed kissing involving tongues. The disclosures were lacking in detail and specificity. When Ms H spoke to A he mentioned only one thing of relevance which the child had told him. It was “He kissed me with his tongue.”
Ms H arranged for the child and the father to see one another. It was the first visit in a long time. The father behaved appropriately during the visit. He concentrated on meeting the child’s emotional needs rather than his own. The child was wary of him at first but told Ms H she had had a good time with her dad and wanted to see him again but then told Ms H “…he did terrible things…you can’t imagine.”
Ms H’s first report contains a number of considerations which she regards as important in assessing the veracity of sexual abuse disclosures by children. They are:
(i)The delay between event and recall or report, which is significant in this case, may make the disclosures unreliable.
(ii)A disclosure made with confidence is not necessarily indicative of its accuracy.
(iii)Many matters may distort a child’s memory. They are particularly suggestible by those who have a good rapport and high level of influence over the child. That a child knows such people do not like someone is also a factor in distorting the child’s “memory” against that person. The type of questioning used to obtain and repeat disclosures is another distorting factor, as is praise for giving the wanted response. Consequential attention and sympathy also tend to distort a child’s perception of events.
(iv)Children are subject to errors of commission, omission and confusion in reporting so called “facts.”
(v)There is a tendency to confuse memory of an event with memory of a previous reporting of the event.
Ms H recommended that the child should have supervised contact with the father without undue delay. Faulks DCJ. ordered that contact. She was concerned that the wife might be alienating the child from the husband to her long term emotional detriment. The wife was able to give the child the clear message that she did not wish for the child to see her father. Ms H formed the view that the wife is unlikely to support any relationship between the child and the husband without receiving counselling. She also formed the view that the wife “has features of histrionic and borderline personality.”
The essential elements of each of those descriptions of personality- rather than descriptions of any illness- are stated clearly in DSM-IV-TR (4th Ed.). Borderline Personality Disorder involves “a pervasive pattern of instability of interpersonal relationships, self image, and affects, and marked impulsiveness…” Histrionic Personality Disorder represents “a pervasive and excessive emotionality and attention seeking behaviour.” For example, in the latter case, a person may draw attention to himself by making up stories. In the former, a manifestation is to initially idolise and empathise with someone, then dramatically shift from this view to one of rejection and demonisation of that person.
The second contact visit between the father and the child on 19 February 2005, at M, was unremarkable as recounted by Ms H. Whereas the child was hesitant in interacting with the father at first, she was not afraid of him and warmed to him. She appeared comfortable in the M setting. When interviewed afterwards by Ms H, she said she did not like to see him and did not wish to do so and repeated much the same allegations as she had made when last interviewed by Ms H.
In this report the counsellor concluded that the child did not have “a good relationship” with the father. She reiterated the need for supervised contact even if the father had sexually abused her because there are aspects of a parent child relationship in those circumstances which are worth preserving. What these are was not revealed. I cannot imagine that they might be worth preserving in the face of the inferences raised when contact between the abused and the abuser who is in such serious breach of trust is encouraged by an authority representing the community. She recommended that the visits last at least 2 hours at a time and occur at least once each month. She felt that the mother’s opposition to contact might increase if it is more frequent and that this might cause her to discourage P from cooperating with it. Ms H’s opinion was that this level of contact would merely maintain the existing relationship rather than improve it.
Ms H’s third report resulted from her review of much written material from various sources. Her ultimate conclusion is that there is very little evidence in anything the child has told people when interviewed to show that the child is recounting a memory of a real event. In effect, Ms H said that the plethora of interviews the child has been subjected to, her mother’s influence and the influence of others supporting her mother, the play therapy and the possibility that the child has overheard her mother’s conversations with others all make it more likely that what the child has said is not accurate. I think this opinion overlooks three things. They are that the child has volunteered little to anybody except her mother, that it must be considered as a possibility that what the child has said to others is the result of the mother’s deliberate attempt to get the child to make false disclosures and that what the mother alleges that the child has said to her is untrue or largely untrue.
In considering this, it does not mean that I have ignored another of the possibilities Ms H presented in her oral evidence. It is that the allegations the child has made may be a manifestation of attention seeking behaviour in the child which is driven by a feeling that she is getting insufficient attention due to conflict between A and the wife and the wife’s preoccupation with the other people who have lived in the home, a situation which has been aptly described as a “regular presence of other people through the home.” The is no real doubt that A has presented problems for his parents and that there has been a lot of conflict between the wife and A. The wife is certainly in the habit of accommodating a lot of relative strangers in her home, some for lengthy periods, many of them monks or others associated with her religious affiliation to whom she is very deferential and, therefore, probably very attentive. I think it is quite possible that some of those who have lived in the wife’s home after the parties separated have had a sexual relationship with her including one or more of the monks and lamas who have lived there. However, I must view this in light of my assessment that the sexually related allegations the child has made are unlikely to have all been invented by her because, at the age when she is said to have made these claims, she would not have had the knowledge necessary to invent claims which actually accords with some of the sexual behaviour alleged. It is much more likely that she is either telling of her actual experiences or that somebody has manipulated the child to make false allegations because the child falsely believes they occurred. It could be that the situation is a combination of manipulation and her own fabrication as part of attention seeking behaviour.
Ms H gave other oral evidence. By this time she had observed the father with the child again. She said something which is, in my opinion, of critical importance. It is that a child of, say, 6 or 7 years, as the child was when she made disclosures to people other then her mother, is unlikely to have an accurate memory of facts which occurred 2 years earlier. There is a likelihood that she would incorporate newly learnt material into events which she said to be recalled from the more distant past. She also said that, despite the mother’s resistance to contact, the child’s relationship with the father had improved and is more comfortable with the father. She had no real fear of him or any anxiety about contact.
There were quite a few other witnesses. Few gave evidence which might assist me to decide where the truth on the sexual abuse issue lies. More than one gave evidence of disclosure of sexual abuse of the child. There is an interview between an officer of Care and Protection Services (Services) which is incorporated in the affidavit of Ms J sworn on 22 June, 2005. The tone of the various reports so incorporated is of bias and willingness to believe the wife’s claims without question with no thought to analyse the wife’s claims or make any attempt to discover what the husband might say. More importantly, on 30 September, 2004, the wife reported that the child made a disclosure which is reminiscent of but more serious than the other claimed initial disclosures about being made to drink urine and is more like an amalgam of all the child’s other disclosures of sexual abuse. It is of some significance that this report is to the effect that the disclosure occurred at 7:30am on 30 September, 2004 when the child and the wife were having a shower; that is, on the day the report was made.
On receiving this report a process designed to verify the claim and discover the truth was supposedly then performed. During that process the wife was interviewed on 29 October, 2004 and the report made on 30 September, 2004 was reviewed. The wife then told the reviewer that the report was wrong in that the sexual abuse occurred in 2002 whereas the report stated “Reporter (the wife) stated that child was allegedly sexually abused by father earlier this year.” The wife also may have said that the actual report of what she said the child disclosed was erroneous. There is a great deal of ambiguity and lack of clarity in the whole report files itself. Nevertheless, either what was reported as the complaint which was made by the wife on 30 September, 2004 was accurate or, if it was inaccurate, the information in it, although not accurate as to timing of disclosures, is quite unlikely to contain disclosures which the wife did not tell of. In either event, the disclosures the wife must have alleged the child made go further than any others in that they clearly accuse the husband of digital vaginal penetration, something which is contained nowhere else in the mother’s evidence of disclosure. It is in A’s.
Despite establishing that the child had not been digitally penetrated and knowing that the wife’s complaint of 30 September, 2004 was highly questionable, Services concluded that the husband had either sexually abused her or was grooming the child for sexual abuse; presumably by sexually abusing her as that would be the logical conclusion one could draw if what the mother and the child had told it were believed. If it were not believed, there would be no room for reaching a compromise conclusion of grooming which is not actual sexual assault. The child made no disclosures when first interviewed on 23 November, 2004 but “went on to say” the husband had “put his tongue on my tongue and kissed me in a yukky way” and that the husband had tricked her into drinking his urine by telling her it was water and had made her “drink out of his penis.” However, she said they had happened in 2003 when she was 5 but had been doing “some things” when she was in preschool (ie. 2002) hundreds of times. The child also told the interviewer she was “scared” of the husband, something which, demonstrably to Ms H, she was not, and that the husband had “touched my vagina- outside and inside.”
A rather bizarre aspect of the Services’ investigation was that the only other person interviewed about the facts was Ms T. Ms T gave oral evidence. I was most unfavourably impressed by her. She gave me the impression that she was virulently hostile towards the husband and blindly biased in favour of the wife. She probably came to dislike him when he borrowed or begged money from her and failed to repay her. She seemed to be easily led and to be likely to be easy prey for the wife if the wife had attempted to influence her perception of fact or the truth of her evidence. She seemed to feel confident, vindicated and implacable in her stance and attitude to the husband. She left me with little doubt that, if she were to be in contact with the child she would use it as an opportunity to alienate her from the husband. She believes the husband to be a child abuser.
In paragraph 6 of her affidavit she described the child’s exhibitionism focussed on her nether parts. She also says that, in March or April 2004 when she was having a meal with the wife and the child, she disclosed that the husband had kissed her “like a grown woman” and “had stuck his tongue in my mouth” and “touched me on my vagina.” She immediately accepted these claims as fact and told the child that it was “…a very bad thing to do” and that the husband should not have done it. She also said that during a party in 2002 she had overheard the husband talking about “magical” rituals in Bhutan and other reasons for drinking urine.
Ms T told the interviewer at Services she had noticed that the child had been extremely sexually exhibitionist since she was 2½ to 3 years old and wondered since she was 3 if she had been “interfered with.”
Ms T’s statement to Services contains a lot of material which is virtually irrelevant to his qualities as a father but attacks his inclination to sponge off others and suggests he is not a Buddhist monk. It is noteworthy that the Buddhist monks who gave evidence, all in support of the wife, did not suggest this and that the evidence is such that one could only conclude that living off money received from others is a way of life for Buddhist monks. Given that the husband, whether or not he has always kept his vows or practised as a monk, was raised since childhood by monks to be one and was imbued with their culture, I do not understand why anyone who was familiar with Buddhist culture, as Ms T seems to have been, would be so intolerant of such a way of life. Virtually all ministers of religion rely on donations from their congregations.
It is quite disturbing that those who were employed by Services to investigate the wife’s complaint appear to have come to their conclusions about whether the child has been sexually abused as a result of what Ms T told them including what a Tibetan man had told her of his theory about why someone would induce a young girl to drink urine. The lack of professionalism of the persons within Services who were involved with the wife’s complaint is disappointing. Unless it is found that the father has actually sexually abused the child, I am of the view that the mother should be restrained from permitting Ms T to come into contact with the child because she is highly likely to deliberately and unconsciously behave in a manner which will tend to alienate the child from him.
Ms B gave evidence and was cross-examined. I formed the opinion that her evidence was truthful. She once saw the husband kiss the child in a way which she felt was exceptional. It was when the child was about 4 years of age. She was visiting the husband at the time. The husband was sitting on a lounge and the child was standing either on his knee or on the lounge with her arms around him. She saw him kiss the child “repeatedly” on her mouth and lips. He encouraged the child to kiss him on his mouth. At least one kiss was lingering. Ms B said she estimated it to have lasted about 4 seconds. She regarded it as having sexual undertones particularly because she later noticed that the child had an unusual preoccupation with sexual matters.
I cannot regard what she saw as confirmatory of sexual abuse. That it occurred in her presence infers otherwise. It is more consistent with an unexceptional expression of parental love of a small child but goes a long way to explain why the child regarded the husband’s kisses as distasteful. I cannot imagine anybody has not seen a child of about the child’s age wipe its mouth or face after being kissed by an adult. For a child, it is a very normal reaction to being kissed. I can take judicial notice of that fact.
Ms B did give some evidence which tends to confirm that the husband was more violent to the wife than he has admitted. She also gave evidence of the child’s disclosure to her. It occurred on 13 October, 2005. The child said: “[the husband] is a bad man. He hurt me.” “He touched my private parts and hurt me.” She then produced some paper on which she had already written. She read it to Ms B. It was “[The husband] put his penis in my mouth. It was soft, it was hard, it was soft. There was coconut juice.” She then said “He touched my vagina and he touched my bottom.” There is no doubt that “coconut juice” is a reference to semen. Either the child has been sexually abused and has seen semen or somebody has emotionally abused her by concocting a story and making her believe it.
The wife’s ex-husband, Mr R, has remarried. His wife, Ms C maintains a cordial relationship with the wife. She saw the child often. Her evidence is that the child made a disclosure to her while they were playing together on an unspecified date. The child said “[The husband] put his tongue in my mouth. I don’t like him. He hurt me. He’s disgusting. I hate him. He hurt my vagina.” It is of no minor significance that Ms C volunteered, in her affidavit, that she already had knowledge of the allegations of this nature when the child made them because the wife had already told her. She said the child knew she already knew because the wife had informed Ms C in the child’s presence. Ms C said of this that “…[the child] was nearby. We did not include her in the conversations but she may have heard us.” Ms C was unequivocal about the child’s appreciation of Ms C’s prior knowledge. The child must have heard her mother tell Ms C rather than “may have heard” them.
Later, in about January 2005, the child said to her “I hate [the husband]. He hurt me. He hurt my vagina…I didn’t want to but he made me. I didn’t kiss him back.”
As is the case with others, Ms C was told things by the child many times which indicated she did not like the husband, feared him and sought revenge. I have not catalogued such statements from Ms C or others because I do not regard these statements, with one exception, as evidence on the issue of sexual abuse. If the child was sexually abused or not, in view of her disclosures, she would be as likely to say the things about her attitude to the husband whether or not they are true. The exception relates to the fact that she claimed to be in fear of the husband and to dislike him yet displayed neither of these emotions to Ms H. It is also significant that the child was in year 2 at primary school by the time of hearing. She had therefore been at school for at least 2 years. In that time she made no disclosures to her teachers, did not behave unusually and did not indicate in writing or orally that she was afraid or resentful of her father. She did write a card for him indicating her love for him. Even more convincing on the issue is the fact that, in a video of her with both parents which was made in January 2004, the child appears to lack anxiety when with the husband and does not seem to fear him. There is a high level of proof that, if the alleged assaults occurred, they must have occurred before the video was made. It was made in January 2004.
The husband’s case on the facts is necessarily simple. He denies the allegations of impropriety and offers a few possible explanations for the child’s statements. One is that he has been in the habit of chewing betel (not beetle) nut and also chewing gum and that the child would often want some and would attempt to get if from his mouth. Another explanation is that he merely picked the child up in various ways, thereby being in normal contact with parts of her body. I do not think these explanations could make much difference to my ultimate conclusion on the issue of sexual abuse. If the allegations are unjustified and therefore false, it does not matter what he might otherwise have done. His actions could not, in themselves, explain the allegations on the ground solely of mistaken perception of them by the child.
Nevertheless, one event which the husband has explained seems to be of significance. It is his version of the incident when it is alleged the husband made the child drink urine. He said that the child had drunk some apple juice which was set aside to be thrown away because it had putrefied. The husband saw her doing this and told her to stop. She then indicated her disgust and said she needed to go to the toilet. The husband had been cleaning the bathroom and asked her to wait until he had finished. When he told her she could go to the toilet she announced that she had already defecated elsewhere. The husband cleaned it up. The wife was not at home at that time. She arrived home with a friend of hers, P. Despite the plethora of witnesses relied on by the wife, Pwas not one of them. No explanation was proffered for her absence. It can be assumed that her evidence would not have furthered the wife’s case. According to the husband, he told the wife that the child had defecated outside the house and had drunk some of the apple juice. She replied about the apple juice, he thought jokingly, “It looks like wee-wee.”
In my opinion, the husband’s allegation that the wife was very keen on fellatio but that he was unwilling to engage in it because of his cultural values is of little probative worth. His allegation that the wife was in the habit of walking naked from the bathroom to the bedroom and that once, he came home to find that she was in the kitchen naked despite her ex-husband, who still lived with them, being in the living room watching T.V., is of some significance because it is an illustration of the fact that the child could well have gained some of the knowledge needed to make some of her statements in an innocent manner.
The husband’s general description of the wife and her behaviour is, it must be said, quite consistent with Ms H’s suggestion that she suffers from personality disorders. I do not know whether Ms H relied on her own observation or the observations of others including the husband to reach her conclusions. If she relied on the husband’s descriptions, it is remarkable that the husband, if not telling the truth about the wife, was able to fabricate descriptions of her which are consistent with known personality disorders. If she relied on her own assessment of the wife, it is equally remarkable that the husband’s description of the wife is consistent with Ms H’s conclusions from her own observations. My assessment of the husband is that he is highly unlikely to have been able to fabricate descriptions which accord to such a high degree with known personality disorders. The characteristics would be known to skilled professionals in a relevant discipline but not to a Bhutanese migrant whose English is poor and who has led an existence for much of his life as and has been educated since childhood to be a Buddhist monk.
Some significant documents which have become exhibits after production in answer to a subpoena ought to be considered. Exhibit “D” comprises of documents produced by the Australian Federal Police. In this bundle only two sets of documents have been relied on by the separate representative who tendered them. Both are the child’s writings. Some seem to have been dated by an adult. One document, tagged by a yellow sticker, says “[The husband] has hert my famly and he has hert me. Plese bleve my mum and what she saye becasue she is telling the trooth did you no that.” Another, flagged in red, is “[The husband] has hert my body and I fill sked of him he herted my body and I dont fill saffe and [he] is bad. [The husband] has tuch my vejner and tong. I had his. I dont what to see him. Keep sang it in till you are finishe. To [R].”
“Vejner” is child’s spelling of “vagina”, “tong” is tongue and “sang” is saying. The references to hurting her body and not feeling safe seem to be commonly occurring terms used by people who are engaged in counselling children they believe or suspect have been sexually abused or are at risk of abuse. I do not regard what she wrote using these terms as likely to have been the words the child would have chosen if, without coaxing, coaching or other forms of mind pollution, she had decided to make written disclosures. That she was coaxed to write the yellow flagged document seems abundantly clear because of her entreaty to “bleve my mum and she saye becasue she is telling the trooth” and her inclusion of “keep sang it in till you are finished.” It is these writings which were also produced during one of the interviews the police subjected the child to.
There are other writings in each set which are consistent with what the wife and others including the police have said the child told them. Some do not amount to disclosures. Most indicate that the child does not wish to see the husband. Some are of serious disclosures. Most seem to be associated with pending or just completed supervised contact with the husband or the assessment of whether or not there should be contact. A court counsellor is the “[R]” the child wrote to. She was the facilitator who was to be and was present at the husband’s first contact after the Deputy Chief Justice ordered the resumption of contact. The child’s writings, which were probably mostly made in 2004 and 2005 and when she was about 7 or 8 years old, emphasise that the child is not very capable intellectually, making her more vulnerable to insinuation and less likely to be able to recall what really happened when she was much younger. Another example of this is Exhibit “E”.
Another Exhibit, Exhibit “O”, is of importance. It relates to claims by the child that she has seen a dark spot or spots on the husband’s penis which bled as she was being sexually abused. In it, Dr O asserts that the husband has a small dark spot on his penis but that it is quite unlikely to bleed more easily than the other skin on his penis and that only someone with an intimate knowledge of the husband’s penis, who had been able to inspect it in good light in a searching manner, could become aware of it. He said that it is “impossible” that the child could have noticed it while being abused and that the suggestion that she did is highly suggestive of a story made up by someone who has sighted the mark under very different conditions.” The underlining is mine. The child did not recall this mark when questioned by the police about it.
Exhibit “Q” is a statement by A made on 25 August, 2004 a few months before his statement to the police was made. It is of interest because it is quite misleading. In it A complains of being shown the husband’s penis and of being “made” to touch and grab it without any indication of the context in which this occurred ie, in the wife’s actual presence as part of childish “play” when she was not looking. A was old enough to appreciate this. The deception involved leaves the accuracy of all his statements open to question. A’s statements are typical of the child’s statements in that they disclose more facts and details and/or become less ambivalent and more damning with time. Yet the overall evidence is that A has, or at least has had during periods when he has been making allegations which amount to assertions that both the child and himself have been abused by the husband, a better relationship with the husband, and in fact likes him, than he has had with his own father.
A review of all the evidence, including matters which I have not mentioned because I do not regard them as having sufficient significance or because they are not of forensic value and tend to be red herrings, leads me to conclude that it is highly likely that the husband has not sexually abused the child and that the child’s statements and writings to the contrary effect are the products of a combination of perverse and deliberate attempts by the wife to poison the child’s mind against the husband and condition her to make statements which can be used to erase the husband from the wife’s life, direct and deliberate coaching by the wife with coaxing to make the statements or writings, pollution of the child’s mind by conversations she has overheard between the wife and her friends, leading by the police and other misguided do-gooders and the child’s own need to draw attention to herself by making outrageous or shocking statements. No doubt the child did not take long to realise that when she made those to people other than the wife they resulted in increased attention to her. I also hold the firm view that the wife has made up much of what she has claimed the child said to her. I find it difficult to rely on anything Ms T said the child told her and regard A as exaggerating because he has been influenced by his mother to see, in innocent actions, sinister undertones. It is likely that the child, too, believes that perfectly innocent acts by the father have abusive implications as a result of her mother’s influence. Although I regard Ms B as a truthful witness, I think that she, too, has been influenced by the wife to see wrong in the father’s innocent actions. She is a person of limited outlook and narrow standards
It should be emphasised that I have, in deciding that I am not satisfied that the husband has sexually abused the child, applied the civil standard of proof while acting in accordance with Briginshaw v Briginshaw (1938) 60 CLR 336. Nevertheless, I have then taken some steps further. I have concluded not only that there is no unacceptable risk of sexual abuse from unsupervised contact between the child and the husband but that the husband has not sexually assaulted the child or groomed her for sexual assault. I regard it as necessary to take these further steps because the additional findings are of importance in deciding what orders are to be made for contact. The ultimate finding that the husband did not assault the child sexually puts the wife’s behaviour into proper perspective and is necessarily an element in deciding what contact orders ought to be made.
Despite the findings I have made on the issue of sexual assault, I do not regard the husband as a wholly credible witness. I believe he has been more violent to the wife and some other adults than he admits. I do not accept that he has raped the wife or assaulted either the child or A. He has struck the children, but within the limits of what is still accepted by many otherwise responsible and law abiding parents as proper, reasonable and justified disciplinary action. In the case of his disciplinary action, he justified that which he admitted on the grounds of Bhutanese cultural values and norms. I accept that he cannot be criticised for being slow to abandon these. That is the situation with many of the cultural values of migrants when they differ from those of a newly adopted host country. I do not regard the husband’s propensity for violence as posing any threat to the child’s welfare if he has unsupervised contact with her. Nor do I think the husband will expose the child to violence. What violence there has been so far has involved the wife. Now they are not likely to interact with one another in the child’s presence for any substantial period so the opportunity for situations to develop where violence is a factor is reduced to insignificance.
By s68F of the Family Law Act the Court must consider specified factors in deciding what orders are in a child’s best interests. A child’s best interests are of paramount importance although not the only determinator in making parenting orders. Here there are no factors of substance which are not related to the child’s best interests and might have an impact on what decisions the Court makes about parenting orders. I shall consider the matters specified by s68F(2) in the order in which they appear in the Act.
S68F(2)(a) - The child’s expressed wishes and factors determining the weight there should be given. – The child has consistently told the wife to the extent the wife is to be believed and told others that she does not wish to have contact with the husband. Her writings express the same wish. These statements seem to be the sole result of the wife’s deliberate influence, the child’s wish to please her mother and her disturbed perception of the husband. According to the Ms H, the child’s observed behaviour belies her expressed wishes. She is not afraid of the husband like she says or awkward in his presence. She was happy to accept gifts from him. The basis for the child’s expressed wishes is unfounded. The child is likely to be easily led by the wife and, if she does not have sufficient contact with the husband, is likely to become completely estranged and alienated from him. She will thereby lose the advantages of having an unexceptional relationship with her father and of gaining a realistic view of him. Because her attitudes derive not from the husband’s conduct but from that of the wife and because the child has been mislead and is still quite young and not very able, very little weight should be given to her expressed wishes.
S68F(2)(b) - The relationship between the child, her parents and others of significance. – The child is close to, comfortable with and very attached to the wife. This makes her vulnerable to the wife’s influence, but also vulnerable to rejection by the wife. The child’s relationship with the husband can be regarded as quite unsatisfactory and potentially damaging to the child’s development. But it is not as bad as her expressed statements seem to indicate. It is not at a stage where it cannot be redeemed. As the wife is the type of person who has intense feelings, there is always a possibility that the wife will transfer her focus to another and away from the child. She needs the security of a close and healthy relationship with her father to guard against such an event. The husband is likely to be a good influence on the child and may be able to reverse the ill effects on her of the wife’s influence. The only other person who is currently close enough to the child to matter is A. Their relationship appears to be good. It will not be threatened by any contact order which might reasonably be made. As A appears to like the husband and enjoy his company despite his allegations, he is not likely to abandon the child if she spends regular time with the husband nor is he likely to attempt to undermine any bond the child develops to the husband.
There is one other significant person whom has not so far been referred to. She is not, but will become, significant to the child if contact orders are made. She is Ms M, with whom the husband has been living in a de facto relationship since early 2005. They share a 3 bedroom home in a Canberra suburb with another couple who have a 3 year old son. Ms M knows the wife has been friendly with her and has known the child since 2002. She is a teacher of English as a second language and at the time of hearing was 39 years old. She impressed me as being an honest and non-aggressive person who would make a very good surrogate mother for the child if she were to spend extended time with the husband.
S68F(2)(c) - The likely effect of changes in the child’s circumstances including separation from parents and others of significance. – I have already mentioned the likely effect of failure to provide the child with adequate contact with her father. She is likely to fall more and more under the adverse influences the wife deliberately and inadvertently imposes on her. She will become a captive of the wife’s whims in circumstances where the wife, by her past behaviour, has shown that she will place her needs and impulses ahead of the child’s welfare. The child will lose the husband as the person she must fall back on in such an instance because she is likely to become completely estranged from him.
Because the child is actually likely to be or to easily become accepting of and loving towards the husband if a regime of worthwhile contact is established, such a regime will not be a setback to her and is likely to advance her welfare. It should not be difficult for the child to return to a non-rejecting relationship with the husband if the wife does not interfere too much. Contact with the husband is highly unlikely to undermine the child’s relationship with the wife or with A.
s68F(2)(d) - Practical difficulties of contact. – The parents live within easy transport of one another. The only real difficulty relating to contact is that associated with supervision. Supervision limits the extent and frequency of contact visits and is associated with some cost. The cost should not be and is not likely to be so great that the parties cannot afford it. However, the greatest practical difficulties with supervised contact are that it must commonly occur in a depersonalising situation where the child does not get to see and know the contact parent in his everyday life and therefore cannot properly involve that parent in her everyday life. Of course, supervised contact cannot be continued for very long or it will defeat the purpose it should have in this instance. The purpose is to introduce the child to her father in unchallenging and secure circumstances so that the relationship can evolve to the point where it will be appropriate to transfer to unsupervised contact. The less time the child spends with the wife the less she will be exposed to her adverse influence. As I think the husband is likely to be a good influence on the child, it will benefit her to spend considerable time with him, but because of the wife’s interference with the child’s perception of the husband and her current reaction to him that position must be approached gradually and with caution.
s68F(2)(e) - The parents’ capacities to provide for the child’s emotional, intellectual and physical needs. – There is no reason to believe that the parties cannot each equally provide for the child’s physical and day-to-day living needs. The wife, by her actions, has shown she does not wish to provide for the child’s emotional needs even though she could well be capable of doing so. I regard the husband as more capable of meeting the child’s emotional needs. So far as the evidence permits me to judge, he does not seem to have recently done anything which might be regarded as placing her emotional needs after his needs or wants despite having earlier behaved violently in the child’s presence. He has never attempted to remove her from the principal care of the wife who is undoubtedly her major attachment, has not attempted to harm her image of A or the wife and displayed his sensitivity to her needs when contact was reintroduced by his appropriate behaviour at contact visits.
The child is not a capable student. The wife does not seem to be doing much to advance her in this respect. She prefers to emphasise the child’s creative side and appears to ignore the fact that if she is to be best able to put any creativity to good use she needs to derive optimum benefit from educational opportunities. The husband is obviously quite studious and is keen to advance the child’s education. I think the husband has more motivation and ability to advance her by catering properly for her intellectual needs.
S68F(2)(f) - The child’s maturity, sex, background and other relevant characteristics. – The child is not very mature or intellectually able. She is of mixed background although both parents are Buddhists. To attain the best prospect for her emotional development she needs to know as much as reasonably possible about the cultures of her parents. This will allow her to develop her own cultural identity. Living in Australia with the wife will achieve this in respect of the cultural identity she has inherited from the wife. She will learn something of her father’s culture in this situation too, because of the wife’s involvement with Buddhists and, in particular, Buddhist monks from Asian countries near Bhutan and from Bhutan itself. However, she needs to spend time with the husband while he is in his milieu to gain a proper grounding in the father’s culture. The fact that she is a girl is of little relevance.
S68F(2)(g) - The need to protect the child from harm. – I do not see any need to take steps to protect the child from harm or exposure to harm, either physical or psychological, at the hands of the husband. He poses no threat of any type to her. The wife poses a substantial threat to the child’s psychological or emotional wellbeing. She has already done things which have had the potential to do the child great harm and she may well have already actually caused her psychological harm by making her believe her father is a sexual and physical predator who has abused her sexually and will continue to do so. The wife has already led A to believe that the husband raped her at least twice despite the fact that the wife married the husband after the time each rape is said to have been perpetrated. In my opinion, the wife is likely to continue to attempt to distance the child from the husband by resorting to false allegations and adverse distortion and exaggeration of his actions. I am extremely concerned that if there is unsupervised contact the wife will use it as an excuse to push the child to make more groundless allegations of sexual assault against the husband. Because of her intellectual disability and attention seeking, the child is likely to be more vulnerable to this type of manipulation than other children of her age. The child is also likely to be adversely affected in her attitude to the husband by Ms T who, as I have said, I assess as likely to use any opportunity to disparage the husband to the child.
S68F(2)(h) – Parental attitudes and responsibility. – There is nothing in the evidence which causes me to regard the husband as other than a loving, dutiful and responsible parent despite past irresponsibility when he went overseas in March 2001. The wife is not sufficiently responsible to be inhibited from distorting her child’s perception of her father and subjecting her to a resultant and unacceptable risk of emotional harm for the purpose of meeting the wife’s wishes and convenience. In the process, she has deliberately caused others to adversely judge the husband by slandering him. The child is at great risk from the prospect of the wife continuing to do this, not the least because there are so many people in positions of power to harm her relationship with the husband if they believe the wife. Many of those whose actions have been scrutinised in these proceedings are quite unwilling to or incapable of viewing the facts in a balanced and critical manner. Too many of the people who the wife has set out to influence against the husband, including those who were charged to deal with the allegations in an official capacity, accepted what she and the child said without question and without hearing the husband’s version. The wife’s irresponsibility was to the degree that she did not seem to care that the child would be treated at school, socially and officially as having been sexually abused and would believe she had been so abused when she was not. In fact, the child has been emotionally abused by the wife in a very serious way. There is no reason to believe the wife will not continue to meet her own needs in preference to those of the child.
S68F(2)(i) - Family violence. – I think there has been some physical violence perpetrated by the husband against and in the presence of the wife. Some was in the child’s presence. It was a long time ago and is not likely to be repeated. By contrast, the wife has, up to the time of this hearing since early 2004 at least, perpetrated a high level of emotional violence. The victims have been the child, A and the husband. Her violence of this nature is likely to continue. I must make orders designed to protect the child from it as well as I am able in the circumstances that she will continue in the wife’s principal care.
S68F(2)(j) - Family Violence Orders currently applying. – There are none still in force.
S68F(2)(k) - Preferably of orders designed to avoid further proceedings between the parents. – Such orders are nearly always preferable and are preferable in this instance. I shall make orders which I regard as likely to avoid rather than stimulate further litigation over the child’s parenting.
S68F(2)(l) - Other relevant facts or circumstances. – I have not canvassed all the matters raised in the proceedings. I have only mentioned such of these which, alone or in any combination with mentioned or unmentioned facts and circumstances, could affect the orders to be made.
It is my conclusion, after considering or weighing all the matters referred to, that the child should have 2 hours contact each fortnight with the husband at and supervised by M Family Centre until she reaches 9 years of age; that is, until 8 November, 2006. The purpose of this order is to protect the child and the husband from the otherwise likely prospect that the wife will continue to attempt to have the child believe and make fresh allegations about sexual assaults of her by the husband. There is a benefit in such an order that it might act to help the wife settle and reconcile herself so the reality that the child will be having direct contact with the husband and will also allow the child time to regain her relationship with the husband and develop it to the point that she will gain the full benefit of overnight contact with her father, as well as attain an age by which she will be better able to distinguish between fact and falsity. The evidence is that supervision at M is available to the extent ordered.
For much the same reasons I have for making the M supervision orders, I do not think that supervision orders should end with the child’s 9th birthday. I think the supervision should continue for another year; to her 10th birthday, but it should be of a less institutionalised and impersonal nature. Contact can be at places and in circumstances of the husband’s choosing between 10am and 3pm each alternate Sunday, but in the presence of a supervisor provided by MS Children’s Contact Service which, I am told, is able to provide the necessary supervision at the modest cost of $30 per hour. I think that the parties should share this cost equally. I would have required the wife to pay it if I had believed she would not claim inability to afford it as a reason to avoid contact. She can afford to pay $37.50 per week.
Once the child is 10 years of age she will be as able as she is ever likely to become to resist the wife’s efforts to delude her about her father’s behaviour. Nevertheless, because of the likelihood of lingering doubts in her own mind, I think that the evolution of contact should continue to be gradual. Until she turns 11 years she should have unsupervised contact with the husband between 9am and 5pm each alternate Sunday. Hopefully the wife will have become sufficiently resigned to it that she will not try to sabotage it.
Once the child reaches 11 years of age I think she and the wife will probably be ready for continuing contact between the child and the husband which involves overnight stays. This should be from 9am on Saturday to 5pm on Sunday in each alternate week during school term and for the whole of the first half of each school holiday period.
Strangely, there has never been an issue over collection and delivery for the purpose of contact or over telephone contact, so I shall make no orders about them. This does not mean that there is to be no telephone contact. I am of the view that the parties will be able to cooperate and agree on transport for contact purposes despite the allegations which have been made.
There are other matters which are ordinarily raised in parenting cases which were not raised here. Apparently, the parties do not regard them as likely to cause a problem. I do not think they will. Despite the wife’s conduct, it does not seem likely that the parties will become involved in disputes over school visits and information and health information. I think orders should be made restraining the parties from having the child counselled for sexual abuse because she has not been so abused and such counselling is likely to reinforce in the child the belief that the husband has abused her. I have already given reasons why I think that Ms T should not be permitted to have contact with the child.
I made orders on 1 December, 2005 based on these reasons.
I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen
Associate:
Date: 9 March, 2007
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as WASSER & WASSER
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