WHELDON & DINH
[2010] FamCA 740
•20 August 2010
FAMILY COURT OF AUSTRALIA
| WHELDON & DINH | [2010] FamCA 740 |
| FAMILY LAW – CHILDREN – ALLEGATIONS OF ABUSE – Assertions of unacceptable risk – The mother states that she will not accept a finding that the husband does not pose a risk – Consideration of the relationship chronology – Parties met online and were married in China – Mother and oldest child have spent considerable block periods living in China – Examination of the child’s disclosures and other ‘evidence’ of abuse relied on by mother – Consideration of the genuineness of the mother’s belief that the father has abused the oldest child – Consideration of the use of published research in Family Court trials – Consideration of best interests and reasonable practicability in light of MRR |
| Evidence Act 1995 (Cth) ss 79, 144 Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65AA, 65D, 65DAA, 65DAC, 69ZN, 69ZW |
| A & A (1998) FLC 92-800 AMS v AIF (1999) 199 CLR 160 Bolitho & Cohen (2005) 33 FamLR 471 Dylan & Dylan [2008] FamCAFC 109 Godfrey v Sanders [2007] FamCA 102 Goode v Goode (2006) FLC 93-286 ICI (Australia) v Workcover (NSW) (2004) 60 NSWLR 18 M v M (1988) 166 CLR 69 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 Marsden and Winch (No. 3) [2007] FamCA 1364 McCall & Clark (2009) FLC 93-405 McCoy v Wessex (2007) 38 Fam LR 513 MRR v GR (2010) 263 ALR 368 Murphy & Murphy [2007] FamCA 795 N and S and the Separate Representative (1996) FLC 92-655 Napier v Hepburn (2006) 36 Fam LR 395 Neil v Nott (1994) 68 ALJR 509 Partington & Cade (No 2) (2010) 42 Fam LR 401 Patsalou & Patsolou (1995) FLC 92-580 Potter & Potter (2007) 37 Fam LR 208 Re C and J (1996) FLC 92-697 RG v JR [2006] FamCA 293 Russell and Close (Unreported, Full Court of the Family Court Australia, Fogarty, Baker, Lindenmayer JJ, 25 June 1993) Starr and Duggan [2009] FamCAFC 115 U v U (2002) 211 CLR 238 X & X (2000) FLC 93-017 |
| APPLICANT: | Mr Wheldon |
| RESPONDENT: | Ms Dinh |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Chan |
| FILE NUMBER: | BRC | 8725 | of | 2008 |
| DATE DELIVERED: | 20 August 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 26-28 July 2010 |
REPRESENTATION
| APPLICANT: | Applicant appears in person |
| COUNSEL FOR THE RESPONDENT: | Ms Fajardo |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Mr George |
| SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER | Legal Aid Queensland |
Orders
Parental Responsibility
In respect of all “major long-term issues” as that expression is defined in the Family Law Act 1975 (as amended), the mother and father of the children S born … March 2004 and T born … January 2008 shall have equal shared parental responsibility.
In respect of issues that are not “major long term issues”, the parties shall each have parental responsibility during all such time that the children are in their respective care.
Live With
The children shall live with their mother.
Time with the Father
The father shall spend time with the children at all such times as might be agreed between the mother and father in writing and in the absence of any such agreement in accordance with the succeeding provisions of these orders.
Until 18 February 2011 (being a period of approximately six (6) months commencing on the date of these orders) the father spend time with the children:
(a) Supervised by such person or persons as the parties might agree and, failing agreement, at a Contact Centre; and
(b) For such period as any such supervisor or contact centre might accommodate on a Saturday or Sunday each alternate week not exceeding six hours; and.
(c) Each of the parties shall do all such things, sign all such documents and pay all such reasonable fees as may be reasonably necessary to facilitate such supervision.
Commencing on 19 February 2011, and each alternate weekend thereafter until the end of August 2011 ( a period of approximately six months), the father shall spend unsupervised time with the children on Saturday or Sunday in each alternate week for a period of 6 hours from 10am until 4pm.
Commencing on the first weekend in September, 2011 the children spend time with the father:
(a) From after school Friday until before school Monday each alternate weekend during school term time;
(b) For the first half of the June/July, September/October and December / January school holidays in 2011 and each alternate year thereafter and the second half or each such holiday period in 2012 and each alternate year thereafter;
(c) For the Easter school holiday period in 2012 and each alternate year thereafter.
Publication
To the extent that the exception provided for in Section 121(9)(g) of the Family Law Act 1975 (Cth) or the other provisions of that subsection do not otherwise authorise same, the Independent Children's Lawyer shall have leave to provide a copy of these orders and reasons for judgment to the Director of the Contact Centre at which the parties commence time pursuant to order five (5).
Receipt of Information
Each party shall do all such things and sign all such documents as may be necessary or required to:
a.Authorise each parent to communicate with, and receive communication from, any doctor or health professional of whatever type, whom the children consult;
b.To speak to, and receive at that parent’s own expense, oral or written communication, from any school or other educational institution attended by the children;
c.Keep the other parent appraised of the telephone contact number upon which that parent can be contacted, providing notice within two (2) days of any change in same;
d.Notify the other parent should either child suffer any medical emergency, serious illness, or other significant issue affecting either child’s health or welfare, whilst in their care.
Restraint on Overseas Travel by Children
The mother, by herself, her servants and/or agents is hereby restrained from taking or sending, or attempting to take or send, the children S born … March 2004 and T born … January 2008 from the Commonwealth of Australia, except as provided by these orders.
The Court requests that the Australian Federal Police place the names of the children (S born … March 2004 and T born … January 2008) on the airport watch list at all points of international arrivals and departures in Australia for the purpose of preventing the removal of the children from Australia in breach of these orders.
The Marshal and all officers of the Australian Federal Police and the police forces of the states and territories are requested and authorised to give effect to these orders.
The passports of the children be held by the Father and not be used to travel by either the Mother or the Father except in accordance with agreement in writing between them or an Order of the Court.
Miscellaneous
All outstanding applications for parenting orders be otherwise dismissed and removed from the list of cases awaiting finalisation.
All subpoenaed documents shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
The Independent Children's Lawyer be discharged
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Wheldon & Dinh is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC8725/2008
| MR WHELDON |
Applicant Father
And
| MS DINH |
Respondent Mother
REASONS FOR JUDGMENT
The mother of two young children S born in March 2004 (6) and T born in January 2008 (2) asserts that they have been sexually abused by their father. The father denies the alleged, or any, impropriety of any type.
The mother goes further; she says that a finding by this Court about sexual abuse contrary to her belief as to its occurrence (even a finding that it did not occur) will have no impact on her asserted genuine and unshakeable belief that it did: “I could never accept such a result”. Further, she says that she will not countenance the children spending time with their father unsupervised: “I will sit outside his house for an hour, for a week, for as long as it takes”.
The resolution of this parenting dispute, in which the father applies for an order that the children live with him, can be seen to be centred upon two central issues emanating from the matter just described; what risk of sexual harm, if any, is presented to these children by their father and what might be the nature and extent of the children’s relationship with each of their parents which is meaningful and of benefit to them.
The mother contends that the children should live with her and spend no unsupervised time with the father. As will be seen, even if the court was to determine, in light of findings to be made, that orders of that type are in the children’s best interests, issues with respect to supervision – and, thus, the likelihood of any such ordered time occurring – emerge.
Background
The parties met on the internet in May 2003. At that time the mother was living in China and the father in Australia. The father was 57; the mother 27.
A few weeks later, in June 2003, the father travelled to China to meet the mother in person. The mother became pregnant with the parties’ first child in July 2003. Subsequent to confirmation of the pregnancy, the father asked the mother to marry him and in late July 2003 a wedding date was set. The father returned to China about fourteen days prior to the marriage in September 2003 and remained there for a further few days before returning to Australia on about 23 September 2003. It was necessary for him to make arrangements satisfying Australian visa requirements for the mother. She remained in China while this occurred, a process that took approximately twelve months. The mother first travelled to Australia in about September 2004.
In the intervening twelve months, however, the father had made approximately eight trips to China. Approximately a month after the wedding, in late October 2003, the father returned to China for a period of about six days. He returned to China on Christmas Eve 2003 and remained there for about twelve days, returning to Australia on about 5 January 2004. The father flew back to China on the next occasion on about 28 February 2004 ahead of the birth of the parties’ first child S in March. He returned to Australia subsequent to the birth on 27 March 2004.
The mother and S remained living in China (while the father lived in Australia) from 28 February 2004 until she and S arrived in Australia on about 30 September 2004, some seven months later.
S had, then, spent the first six months of her life with the mother, with virtually no face-to-face contact with the father.
The mother formally became an Australian resident in September 2006.
The mother returned to China with S in early July 2007 and remained there until 2 July 2008. During that time the parties’ second child T was born there in January 2008. The father travelled to China for the birth of T and returned to Australia.
When the mother and the two children returned to Australia in July 2008 S was just over three and T about 6 months old. S had spent about half her life in the sole care of the mother in China and T had similarly spent the first six months of her life.
The parties finally separated some fourteen months later on 18 September 2008. Statements made by S in late August and early September 2008 form the basis of the mother’s asserted belief as to sexual abuse and can be seen to have provided the catalyst for the parties’ separation.
The Proposals of the Parties in Context
The Mother
The mother proposes in her Response to an Initiating Application, filed 11 February 2009, that:
a)The children ought live with her;
b)She should have sole parental responsibility in relation to both major long-term issues and non major long-term issues; and
c)The children should spend time and communicate with the father as agreed or failing agreement for up to 2 hours per week supervised at a Contact Centre.
As earlier referred to, the mother’s position in that respect was underscored in the witness box by her adamant and tearful statement that she could not countenance unsupervised time between the children and the father, irrespective of the findings of the court. In answer to a direct question as to whether she would comply with an order for unsupervised time, the mother said, simply, “No”.
The mother went further in the witness box, making it clear that, not only will she not countenance unsupervised time, but her firm view is that the father ought not be informed of the residential address of the mother and children, or any details of the school attended by the children.
The Father
The self-represented father’s application filed 16 October 2008 and subsequent Case Information document filed 10 February 2010 seek orders that:
a)The children live with him;
b)He have sole parental responsibility in relation to both major long-term issues and non major long-term issues;
c)The children spend time and communicate with the mother as agreed or determined by the court; and
d)The existing PACE Alert be maintained such that the children are not permitted to leave Australia without Court order.
The father’s Summary of Argument document seeks a further order that “the allegations contained in the “Notice of Child Abuse or Family Violence” filed 11 February 2009 by [the mother] be found to be vexatious and totally without foundation”.
It can be seen that no specific proposals for time are offered in the event of either the children living with him, as he would contend, or if they are to live with the mother. In the witness box at the outset of the hearing, the father made it plain that, in either event, he sought orders for alternate weekend and half holiday time. The father handed up a “proposed orders” document that became Exhibit F1 in the proceedings, at the conclusion of the trial. These proposed orders altered the father’s position as to parental responsibility but essentially maintained the alternate weekend and holiday proposals. More will be said of this shortly.
The father also said, though, that he hoped the parties would be able to have a relationship such that time could be spent on a more regular basis and in a more spontaneous way, than that constrained by the orders just referred to. As I said to the father during his cross-examination, it seems to me incongruous that the father would make such a contention in oral evidence in circumstances where his affidavit evidence (and that of affidavits sworn by witnesses in his case) is replete with what I regard as barely concealed contempt for the mother.
Indeed, in his affidavits, the father refers to the mother more than once as “a psychopath” and his witnesses are no less scathing of her in their material. Examples include:
122.I met [the mother’s] mother for the first time (she was not at our wedding) on Thursday 24 January 2008 when I was in China for [T’s] birth. [The mother] had told me she had “an illness of the brain”. …
123.Although I am not a medical professional, it was obvious to me that she was mentally incompetent. This has raised the thought of the possibility that her mother’s problem may have been inherited by [the mother]. Annexure A-K is a copy of some pages of a schizophrenia pamphlet…
…
127.I was in China with [the mother] and [eldest child] in late April 2005. …[The mother] introduced me to an acquaintance of hers…[The mother] wanted to introduce her to my brother so that she could get an “introduction fee”.
128.My brother refused to pay this “introduction fee” but, ultimately, the introduction was made, without any fee, at my insistence. They are now happily married. In fact, it is a joy to see their loving interaction. [My brother’s wife] has been in Australia for 2 ½ years, has a job and is a productive member of our society, not a Centrelink bludger.
...
150.One of my brother’s comments about [the mother] as a result of [a] confrontation was that he believed it possible that she may be a psychopath.
151.In response to this comment, I did some research on the internet. Annexure A-J is a list of common symptoms of a psychopath. I believe I can say, without contradiction, that I know [the mother] better than anybody else involved in this matter. I have marked with an asterisk the symptoms I believe may be attributed to [the mother].
…
419.With much sadness I have concluded that our marriage was a sham and simply a vehicle for [the mother] to gain Australian residency. I must commend her acting ability. She was the perfect loving wife up until the day we received the notification of the granting of her permanent visa…
[Father’s affidavit filed 22 February 2010]
My wife’s emotional IQ is low. I doubt she has ever read any books in regard to personal development. She is not equipped to handle any emotional problems that may arise with our daughters.
…
What will my daughters learn from my wife? How to lie and cheat? How to have tantrums to get her own way? I am afraid that this may be the case.
[Father’s summary of argument filed 4 March 2010]
These things are said of the mother of his children. To then swear orally that he is desirous of being able to have spontaneous time with his children accommodated by – and perhaps with – the mother, is, to me at least, extraordinary.
The reporting family consultant, Mr P says in his report dated 10 June 2009:
23.[The father] expressed quite serious concerns about [the mother’s] mental health. He made a reference to a meeting with [the mother’s] mother in China who he stated is “Strange and seems mentally ill” and that he believes [the mother] “Might have a similar disorder”. [The father] was rather damning in his opinion of [the mother’s] mental health yet in a document attached to his affidavit …a letter which was part of [the mother’s] Australia visa application … he emphasises her mental stability and praises her character.
The evidence of the mother followed that of the father. In that evidence, the mother’s implacable position with respect to unsupervised time emerged as did her clear evidence that she would breach any such order. That gave rise, in my view, to the need to hear further from the father, particularly in light of evidence before the Court in relation to difficulties arising from the father’s time at a contact centre and his erstwhile attitude to supervision at such a centre (and, probably, more generally).
I requested that he provide further evidence in respect of this issue (see s 69ZN(4) and (7)). At this stage the father handed up his “proposed orders” document. I assess the father’s presentation when recalled to the witness box as displaying genuine confusion and concern for the difficult considerations in this matter. The father said that despite the mother’s position he felt that an arrangement that would see him spending time with the children on alternate weekends could be achieved. The father stated that he felt the changeover times would give rise to the greatest potential stress for the children and as such a supervised changeover may be the only solution. The father was confident in his capacity to “quiet the children down” and “get everything back on track” once changeover had occurred. In response to direct questions about whether forcing the children to see him, in light of the mother’s implacable belief, may cause more harm than good, the father stated:
I feel that the first one or two instances would be a little bit challenging, but the subsequent ones may lose a bit of their strength. It may end up being that the children just consider ‘well that’s the way that mum is’.
The Independent Children’s Lawyer
Counsel for the Independent Children’s Lawyer (“ICL”) submitted at the conclusion of the hearing that the Court ought not be satisfied that the father poses an unacceptable risk to the children. Ultimately the ICL submitted that the children’s best interests call for orders that will see them living with their mother and spending time with the father.
In relation to the arrangements for father-child time, the ICL submitted two alternatives: if the Court finds that the mother’s belief as to the abuse allegations is genuine or if the mother’s belief is not genuinely held. Essentially, in either scenario, the ICL contended that the time the father spends with the children ought be supervised with a gradation to, or mixing with, unsupervised time.
I took the ICL’s submissions to contend that the finding as to the mother’s belief ought affect how quickly the gradation to unsupervised time, and ultimately alternate weekend with some holiday time, should occur.
The ICL’s submissions for supervised time were founded on the need to insulate the children from the mother’s anxiety about the father, rather than any need for protection from the father himself. The supervision of father-child time has about it a “remedial element”; it was submitted that supervised time without incident may go some way to appeasing the mother’s anxieties and allowing her to adjust to the notion of unsupervised time.
It is to be noted that, while the ICL submitted that S and T’s best interests require a fostering of the father-child relationship through regular time, it was not submitted that orders for “substantial and significant time” (as defined) ought be made.
Best Interests: Issues, Considerations and Basic Findings
The interplay of the Act’s two Primary Considerations is central to a determination of orders which best meet the best interests of these two young children. I am conscious that, whilst those two Primary Considerations, have primary importance, they must also be seen in the context of all other Considerations enumerated in s 60CC relevant to the particular circumstances of these two children. (See, in that respect, eg, Warnick & Thackray JJ in Marsden and Winch (No. 3) [2007] FamCA 1364 at par 77).
Primary Considerations
The undefined expression “meaningful relationship” has been considered in a number of recent decisions. (See McCall & Clark (2009) FLC 93-405, but noting also the earlier comments of Kay J in Godfrey v Sanders [2007] FamCA 102 at par 36).
There is no doubt that the Act gives primacy to the benefit of children having such a relationship with each of their parents. That primacy is consistent with the Act’s Objects and Principles: children have a right to know and be cared for by both their parents and to spend time on a regular basis with both parents and others significant to their care, welfare and development. In making parenting orders under Part VII the best interests of the children are to be met by, among other things, ensuring they have the benefit of both of their parents having a “meaningful involvement” in their lives “to the maximum extent” consistent with their best interests.
In this case, however, as in so many cases that proceed to final hearing in this court, the Primary Consideration of the children having a meaningful relationship with both parents has the potential to collide directly and powerfully with the other Primary Consideration, which predominates the need to protect children from specified harm.
In my judgment that potential collision poses the central dilemma for this court in arriving at orders that best meet these very young children’s best interests.
Parties and their Presentation
The evidence of each of the parties is attended by features of which account ought be taken in assessing its veracity and the credibility of the parties generally. I refer to these features at this early stage as they are important for findings to follow.
First, the father represents himself and has prepared his own material. He represented himself throughout the trial. I am mindful that this may create for him some disadvantages, and I have sought to be particularly careful when assessing his evidence (and submissions) to bear that in mind. (For example, I bear in mind what the High Court said in Neil v Nott (1994) 68 ALJR 509 at 510: “…[A] frequent consequence of self-representation obviously is that the court must assume the burden of endeavouring to ascertain the rights of the parties which are obfuscated by their own advocacy.”)
That said, self-representation can also bring with it the opportunity for a trial court to see and hear things from a party that otherwise might be shrouded in the expertise of their representation. In his Atkin Lecture in 2002 The Misnomer of Family Law Mr Justice Wilson (UK) made the following observations:
“… I have reluctantly to admit that there are benefits for the judge in the appearance in person of a parent, let us say for convenience, a father. One sees him in action throughout the case, not just when produced by the advocate for his performance in the witness box. One sees him when he is tired and under stress and whether he fails with good humour to cope with minor irritants such as the mislaying of a document. Furthermore, one sees him cross-examine the mother. Although the problem must be more acute in prosecutions for sexual offences, family judges have to guard against barbarity which sometimes effects the exercise. But, even if he is misusing the cross-examination in order to harass the mother, the father provides the judge with a valuable insight. There is no better way to discern the quality of their dealings outside court, for example, whether handovers of the child between them would proceed sensibly, and to study their language including of the body, towards each other in that unenviable situation.”
The father was at all times respectful of the process and the mother during the conduct of these proceedings. I have, however, already referred to the material sworn by him and to that sworn by witnesses in his case. I consider each to provide the sort of insight of which Mr Justice Wilson spoke (albeit in a different context to that referred to by his Honour).
Mr P notes in his report dated 10 June 2009 what he observed to be uncertainty and ambivalence in the parties’ interactions and attitudes to one another:
… I get the impression each [party] remains ambivalent about their future as a couple. There are agreed occasions of the parties sporadically meeting and there are indications that the negative emotions they hold towards each other have relaxed from time-to-time. …I am unable to specifically ‘put my finger on it’ I [get] a strong sense from my assessment that there might be various factors or agendas underpinning each party’s ambivalence…
…It is my opinion that whilst each party has pursued their respective challenges against the other person they have largely lost sight of the impact this has had on their children….
I consider that the submissions by the self-represented father display the “ambivalence” highlighted by Mr P.
The mother is Chinese and Mandarin is her first language. She participated in the proceedings (and gave evidence in the witness box) with the assistance of an interpreter. Her affidavit reveals that it is sworn through an interpreter; the interpreter having first sworn that she has interpreted what is contained within it.
What is contained within it, though, is in English (as distinct from being given in Mandarin and later translated to English). That can give rise to issues such as appeared when the mother was asked to read passages in the witness box and needed the interpreter to interpret parts of those passages.
The mother has been permanently in Australia only a short time. She has no family support here. She is not surrounded by her culture of birth. As Mr P puts it in his report:
56.… [The mother] is relatively new to Australia and its dominant language and now finds herself in a largely isolated and unsupported situation with two young children to care for …”
The mother claimed on a number of occasions in oral evidence that her difficulties with English explained (or partly explained) her actions and inaction. An example is her failure to raise with S’s kindergarten an apparent disclosure that abuse had occurred “in kindy” which included reference to a carer being a short distance away. This will be discussed further below.
I have attempted to bear in mind difficulties arising from those circumstances when assessing the mother’s credibility and particularly where there is the potential for adverse findings against the mother. Specific aspects will be dealt with below.
Protection From Harm and Unacceptable Risk
I have previously attempted to distil the principles emerging from the cases binding upon me that apply in circumstances where risk of harm lies at the heart of the issues relevant to prospective parenting orders. It is, I think, useful to repeat them here as follows.
The Nature of Unacceptable Risk
In cases where allegations of abusive behaviour involving children, or potentially involving children, are made, an assessment of any risks associated with the parenting orders contended for, and, ultimately, those which might attend orders made by the court, must play a central role. “Unacceptable risk” is the measure (sometimes said to be a test) which, in this jurisdiction, has been used to assess parenting orders which might be impacted by potential harm to a child. (See M v M (1988) 166 CLR 69).
It is important to record part of what the High Court said in M v M (at 76):
“Viewed in this setting, the resolution of an allegation of sexual abuse against a person is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse…”
Further, in the passage just quoted, the High Court (prior to the passing of the Family Law Reform Act 1995 (Cth)) pointed out that:-
“In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents.”
That is, it seems to me, all the more true now consequent upon the passing of the Reform Act which introduced significant changes to Part VII of the Family Law Act. Now, just as when M v M was decided, an allegation of potential risk of harm ought not divert the court from the central task of assessing the best interests of these two young children. The identification of the need to protect children from specified harm as a Primary Consideration does not, in my view, alter that. That the inquiry about harm in the current legislative context occurs in the context of a broad assessment with an ultimate focus on best interests is clear from a number of sections within Part VII, for example, s 65CA and s 60CC(3)(m).
Unacceptable Risk: Nature, Extent and Relationship with Orders
In McCoy v Wessex (2007) 38 Fam LR 513, Brown J refers to a number of decisions where the place of “unacceptable risk” is considered. In particular, her Honour refers to the decision of the Full Court in N and S and the Separate Representative (1996) FLC 92-655. There, Fogarty J said (at 82,713-4:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of a particular case fall, and to explain adequately their findings in this regard.
In her Honour’s reasons in McCoy, Brown J also refers to the judgment of Warnick J in Napier v Hepburn (2006) 36 Fam LR 395, (subsequently cited with approval by the Full Court in Potter & Potter (2007) 37 Fam LR 208 and Partington & Cade (No 2) (2010) 42 Fam LR 401). Warnick J says this:
[114] I also wish to add some comment on what I perceive as a further goal of fulsome discussion by a trial Judge of the component aspects that may, in any given case, lead to a conclusion of “unacceptable risk” of harm to a child. That goal is to provide a platform, for any future consideration of the family circumstances. Once a finding of unacceptable risk is made, imperfect though the process that leads to that result may be, the finding can come down between parent and child like an iron gate, that no subsequent efforts can raise. At least a close examination of the steps leading to a finding of “unacceptable risk” can eliminate paths by which a family (or court making decisions for a family) might subsequently explore options for change”.
The reference by Warnick J to the process leading to the result is, in my respectful view, extremely important. Frequently, (I would respectfully venture, too frequently) “risk” is referred to as an all-embracing term, a “general” finding of which can (purportedly) be seen to have some form of “ipso facto consequences” for the orders made. Yet, “risk” is, without more, but a convenient description; orders must, surely, address its constituent components which must, axiomatically, vary according to the circumstances of each case.
In that respect, it is both interesting and instructive to refer to what has been said about this issue first by the Honourable John Fogarty AM, and, secondly, by an English author, (the latter qualified as both a psychiatrist and a barrister.)
The latter said:
Risk assessment in any situation involves, in essence, the asking of the following questions:
(1)What harmful outcome is potentially present in this situation?
(2)What is the probability of this outcome coming about?
(3)What risks are probable in this situation in the short, medium and long term?
(4)What are the factors that could increase or decrease the risk that is probable?
(5)What measures are available whose deployment could mitigate the risks that are probable?
(B. Mahendra, ‘Psychiatric Risk Assessment in Family and Child Law’ (2008) 38 Family Law 569).
Mr Fogarty, writing in the Australian Journal of Family Law said this (20 AJFL 249 at 254-5):
…the reality is that all courts deal with issues of “risk” and degrees of risk (however described) in various situations and that concept is increasingly used in legislation.
Risk is difficult to define in a way which is not ultimately circular. But it is an inevitable part of life at all its levels. It is inherently risky to breathe, eat, drink, walk, drive, work, invest and play. The world is full of different risks and consequences and everyone is prone to dangers. We confront varying levels of risk everyday. People frequently face potentially dangerous situations; not many live at home in complete isolation to avoid getting in harms way. Most people try to avoid what they perceive to be risk; some willingly take on high risk activities.
Risk involves two component; the degree of “likelihood” of the happening of an event, and the possible consequences (good or bad) if it does [cases and citations omitted]. Individuals in their assessment of some risks may focus more on one than the other of these components.
But at some point it usually becomes necessary for that person to make a judgment of the risk and whether it can/should be taken. Where the risk relates to a third person to whom one owes a responsibility, it is likely in the nature of things that the estimate will be conservative.
Risks are relative and usually involve trade-offs. Crossing the road with oncoming traffic to catch the last connection to the airport involves the risk of being hit by a car or the risk of missing the plane. Very much a balancing exercise of facts, experience and intuition, but essentially which risk carries the greater detriment (usually the car).
Then there is the common experience of a mother watching her child cross a road to go to school. The risk is seen as greater (although it may not be) because the consequences may be death or injury to the child and because the responsibilities of the mother will be seen by her as greater than for herself or another adult….
At times the courts and the legislature have attempted to give an indication of the content or quality of the risk – otherwise “risk” may mean any risk, however small or unlikely. Hence the use of adjectives such as “serious”, “grave”, “real”, “appreciable” and “unacceptable”. [paragraphing added to the original for ease of reference]
I respectfully agree, as I also do with Mr Fogarty’s statement (which also has echoes in the English author’s statement earlier quoted) that:
“… unacceptable risk in the High Court’s formulation [in M v M (1988) 166 CLR 69] requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is “acceptable” when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of “benefit to the child”. It is, as I suggested earlier, calibrated to its use in individual cases. It is unrelated to the exoneration or otherwise of the alleged abuser; it is all about the bests interests of the child and protection from risk”. (at 261)
If, as the High Court said in M v M, above, “the resolution of an allegation of sexual abuse against a person is subservient and ancillary to the court’s determination of what is in the best interests of the child” and subsequent amendment to the Act reinforces that position, it is necessary to visit the principles upon which such a determination must now be based.
Unacceptable Risk and Harm: Discussion and Findings
The “Disclosures”
While the details of the disclosures made by the child and the parameters of the assertions of abuse and unacceptable risk were somewhat imprecise, it became clear throughout the hearing that the best exposition was contained in the mother’s affidavit filed on 19 July 2010. I will quote the lengthy paragraph in full:
92.…At that time [early September 2008], I was very distressed and the Singaporean police officer, who was not a qualified interpreter, clearly was unable to adequately understand what I was trying to explain to them. As I have deposed previously, there were 2 disclosures. The first disclosure occurred when I was undressing [S] for her bath and she was lying on the carpet upstairs. [S] pointed to her fanny (vagina) and said “Daddy put finger in”. I asked her when did this happen. She said it was when I was in hospital having the baby. My thoughts were I could not believe this had happened. This occurred at the end of August 2008. I thought to myself I doubt my daughter would make up something like that and then thought, I doubt it really happened, weather [sic] my husband really did it because my daughter is so young. [S] is his biological, blood related daughter, how could he do this?
The second disclosure occurred in early September 2008 after [S] returned home from kindergarten. She was very quiet that day so I gave her favourite food (strawberries) to her but she would not eat. I asked her what is wrong? [S] did not answer me but she appeared to be upset. I asked her “did daddy touch you here today (she pointed towards [S’s] vagina). [S] said two fingers and the then word blood in Mandarine” [sic]. I asked her where did this happen? She responded that it happened at kindi. As soon as my daughter told me Kindi I started to quickly think, where did this happen because how could this happen at Kindi with all of the people there. I asked did father do it in the car. My daughter said “No” in Kindi. I asked her “where at Kindi and where is your carer,” [S] said in Mandarin just over there”. Then I asked [S] where were you and your father. Can the carer see you and your dad? [S] did not say anything. I asked her was it in the toilet. [S] said “stop asking me”. I stopped asking her these questions because I did not want to push her too hard or upset her anymore. I carried [S] upstairs top her bedroom because she had told me two fingers and blood so I wanted to check if she was okay. I closed the bedroom door and I took her pants off and layed [sic] her on the bed and lifted her leg up. I looked at her vagina and saw a cut on her vagina. Tis is when I relised [sic] that what my daughter had been telling me was true. After the second disclosure I was not sure what to do. I could not sleep so my eyes were red and swollen and I could not eat any food. I did not know who to talk to and who could help me and my children. The stress caused my breast milk to dry up and I was not able to feed my baby. I was worried about how I would pay for rent if I left my home. I was worried about the safety of my children. I thought if I watched [S] closely then I could keep her safe.
I was afraid to confront my husband about the disclosure from [S] so I kept this to myself until I could not take the stress any longer. I wanted to leave but I did not have any place to go. I could not speak English and I did not have any support. I did not know what to do. I asked my husband if he could help find me a place to live and then my husband asked me why I finally confronted him about the disclosures and he dined [sic] this. This was on or about the 12th of September.
Earlier in that affidavit, the mother clarified the timing of the second “disclosure”, which she deposed in her first affidavit (filed 11 February 2009) as occurring on 12 September 2008. In relation to this second disclosure the wife deposed:
16.I seek leave to rely on my 11 February 2009 affidavit subject to the following amendments. This affidavit was completed with extensive assistance of my previous solicitors…however there was a misunderstanding between my solicitor and I which resulted in an incorrect date being placed in my affidavit. On 28 October 2008 I wrote a letter to the Department of Child Safety. After I finished the letter I emailed a copy to my layer. Using this information the Lawyer wrote the response to the father’s initial application. When the lawyer was preparing the material with me and the interpreter in his office, my younger child was with us. She would not stop crying and I was comforting her. When the lawyer asked me to read through the material with the assistance of the interpreter I was so distracted by my child that I missed this detail and it has been replicated in all my documents by the lawyer. … My intention in writing [the letter to the Department of Child Safety] was to say 12/10/08 was after the second allegation of sexual abuse by the child. This was misunderstood by my lawyer when preparing my documents. … I can not recall the exact date that the child made her allegation but it was early September 2010.
17.…my solicitor placed the incorrect date in my affidavit dated 11 February 2009. It was earlier than 12 September 2008 that the child was alone with the father in his car, approximately 1 week earlier.
The final date reference in the quoted paragraph 16 above is an error and it seems clear that this should in fact refer to September 2008.
As already noted, the mother gave evidence through and with the assistance of a translator. Clearly enough, language barriers can create difficulties in the preparation of affidavit material. Neither the father nor the Independent Children’s Lawyer took issue with the material as set out above. The hearing proceeded on the basis of the second “disclosure” occurring in ‘early’ September 2008.
Specifically the two “disclosures” asserted by the mother are in August 2008: “Daddy put finger in”, and early September 2008: “two fingers [in English] and blood [in Mandarin]”. Under cross–examination the mother was firm in her evidence that there were two “disclosures” made by the child to her and in neither such “disclosure” did the child tell her how far the father’s finger or fingers penetrated the vagina.
By reference to the documentary evidence which records “disclosures” as reported by the mother to others, the ICL ultimately submitted that the mother’s evidence since separation has included widely varying versions of the child’s disclosures such that the Court should have some concerns about the credibility of the mother’s evidence.
The ICL referred to the report of Dr N, a paediatric consultant for the Queensland Police C area child abuse unit, dated 19 September 2008. In that report the doctor records the mother stating that the child told her that the father put his finger in her vaginal area. The doctor records the mother stating that she asked the child if the father ‘touched’ her.
In the notification made to the Department of Families, which became Exhibit ICL5(a) in these proceedings, the records reveal that “Mother said that at the end of August the child told her that the father put his finger in her vagina and it was broken and bleeding.” This “disclosure” was not contained in any affidavit material by the mother nor did the mother provide this detail when questioned about whether any other “disclosures”, aside from the two already highlighted, were made by the child.
The ICL cross-examined the mother about this specific phrasing of “broken and bleeding”. The mother deposed that she had used that form of words in telling someone at a women’s refuge about the asserted abuse. The notification to the Department also records that “the child said that [the father] keeps playing with me down there and it hurts”. This detail finds some reflection in the notes of Dr N which record “Alleged sex abuse – a long time ago – about 2y ago. Whenever [mother] bathed [S], [S] would touch vagina & complain that it hurt. Did not say anything had happened”.
The ICL questioned the mother about when, and whether, the child had made complaints about the father touching her and it hurting. The mother deposed that the child had in the past told the mother “don’t touch, don’t touch [her vagina] very sore”.
In response to questioning as to why these phrases do not appear in any affidavit material of the mother’s, the mother deposed: “It was left out of the affidavit as I thought this affidavit was simply to answer the father’s questions”.
Counsel for the ICL asked the mother whether she felt the differences in versions of what the child has said was due to language misunderstandings. The mother deposed: “I do not there are different versions, should be the same version”.
I accept the ICL’s elucidation of ambiguity in the recording of disclosures by the child. However, it seems clear that the accounts noted above are second-hand, or even third-hand, hearsay voiced through translators and retold by support workers and the like. The mother deposed in the witness box to being assisted by multiple translators and accompanied by support workers at the various doctor’s visits. There is, it seems to me, considerable potential for distortion in such a process and that the reliability of the evidence is questionable.
Counsel for the mother submitted that the mother’s evidence was deposed to in the context of language difficulties and the use of multiple interpreters. The father submitted that the mother had exaggerated her language concerns throughout the hearing; he does not speak Mandarin and says he was able to communicate effectively with the mother throughout the relationship.
I am not prepared to attach significant weight to the evidence of disparity in versions of “disclosures” such that a broad finding adverse to the mother’s credibility or veracity ought be made.
I take the mother’s affidavit material filed on 19 July 2010 at paragraph 92 as containing the best evidence of the “disclosures” made by the child to the mother.
Evidence of Abuse/Risk Upon Which the Mother Relies
Statements of the Child
The second “disclosure” was the subject of considerable cross-examination. It is appropriate to repeat the relevant section of the mother’s affidavit material:
I asked her where did this happen? She responded that it happened at kindi. As soon as my daughter told me Kindi I started to quickly think, where did this happen because how could this happen at Kindi with all of the people there. I asked did father do it in the car. My daughter said “No” in Kindi. I asked her “where at Kindi and where is your carer,” [S] said in Mandarin just over there”. Then I asked [S] where were you and your father. Can the carer see you and your dad? [S] did not say anything.
The mother was cross-examined about what, if any, steps she took in relation to contacting the child’s kindergarten and enquiring as to how any such interference could have occurred while the child was “at kindi”. In response the mother deposed:
…about the kindy incident, I don’t know where the incident occurred, inside or outside the kindy. That’s why I asked [S] if it occurred in the car…I know not in the car but could be inside or outside [the kindy].
There are houses, trees, fences, the carer could be on the other side of the fence and still not far away. I could not call the kindy as my English was so poor. So I did not ring to check if the father was present…
I don’t believe the abuse occurred inside the kindy with carers present. If it had occurred inside the kindy the carer would have notified me. …From the beginning to now I believe it occurred outside of the kindy.
It became clear throughout the mother’s evidence that she has sought no details from the child’s kindergarten that in any way relates to the alleged abuse. No enquiries have been made as to whether the father was present at the kindergarten on any of the relevant days in early September, no enquiries have been made as to who the carer who was ‘just over there’ may have been. I am not at all satisfied that the mother, who otherwise deals with the kindergarten in relation to her daughter’s attendance, would be unable to express her concerns about this alleged incident because of language concerns. I find it extraordinary that a mother who believes a father has interfered with a child in or around the kindergarten and within the vicinity of a worker would not raise the issue in any form with the kindergarten.
In addition to the statements made by the child to the mother, the mother relies upon the evidence of support worker Ms H. Ms H provided support and assistance to the mother at and through a women’s refuge. Ms H deposed in her affidavit filed 26 July 2010 that, while driving home after a contact centre visit with the father the child said “that her Daddy had promised that the bad thing he did would not happen again”. Ms H deposed in the witness box that she felt this was “a really odd thing for [S] to say just out of the middle of nowhere” and as such she had a fairly clear memory of the words used.
The contact centre’s visit details, correspondence and session observation notes became Exhibits 2(a) – (ss) in these proceedings. The observation notes contain pertinent features of the session as recorded by the facilitator. The centre was aware that time was being supervised because of an allegation of sexual abuse. A statement by a child of the type deposed to by Ms H is precisely the sort of matter to which supervision is directed. It is also precisely the sort of matter one would expect to find recorded in the centre’s notes.
The notes of the session occurring on 4 July 2009 record that: “[S] asked her father of a toy man “Does he do bad things?” [The father] responded by saying “I don’t know.” No other reference of ‘bad things’ or any similar terms occurs in the contact notes and no connection is made between the “bad things” and the father”. It is not clear on which date the statement from S to Ms H occurred. Ms H deposes to the disclosure occurring after the “first” contact centre visit. The centre notes – and the parties’ evidence – reveal that, on some occasions, the father, mother and children arrived at the contact centre together as a result of the father collecting the mother from a nearby train station. The session on 4 July 2009 is the third session contained in the observation notes in Exhibit(2). The earlier sessions on 28 March and 13 June 2009 each include notes that the father had driven the mother and children to the centre.
Father’s ‘admission’
The mother relied on what she asserted to be an ‘admission’ by the father that he had interfered with the child when toileting her. The asserted ‘admission’ is contained in a letter dated 27 September 2008, written by the father to Dr N in response to the doctor’s examination statement. This letter became Exhibit ICL1 in these proceedings.
Relevantly the letter says:
…I heard [S’s] little voice “Daddy please come and wipe my bum”. Unbeknown to me, she had come upstairs to go to the toilet. I went into the toilet, got two layers of two ply toilet paper on my fingers and asked her to bend over. She did not bend over far enough for me to see her anus and, not thinking about what I was doing because my mind was on my talk, I inadvertently put my fingers a little forward of her anus and just touched her vaginal opening. My fingers were only slightly bent, hence I do not believe that there was any significant penetration. She said “that hurt daddy”. I said “sorry sweetheart”…
In response to questioning from the ICL the mother also deposed to having had “a conversation” with the father where he “admitted” that his finger went in to S’s vagina to the “second line”, explained to mean the major knuckle of the finger. The reference to the “second line” on the father’s finger appears in the Notification to Child Safety annexed to the mother’s affidavit but does not appear in any of the mother’s own affidavit material.
The mother deposed in her oral evidence to believing that the father had admitted to her that his finger had gone into the child’s vagina to the depth of the ‘second line’. I am not satisfied that the father made any such statement to the mother. Further, I do not accept that language difficulties provide a reason for it not appearing in the mother’s affidavit and I find its absence remarkable.
Counsel for the mother submitted that the father’s explanation for touching the child’s vagina, that he was not paying attention to the task of toileting, could not be reconciled with the level of detail of the toileting task now provided (e.g. that the toilet paper was 2 ply, that the father’s fingers moved just forward to the child’s vagina etc). I took counsel for the mother to be submitting that the Court should have significant concerns as to the father’s credibility and, specifically, the veracity of this evidence. Counsel also refers to the evidence by Dr N about the father’s extreme reaction to his report.
The father’s letter to Dr N does, indeed, seem both an odd and an extreme reaction to that doctor’s letter, especially in light of its final “neutral finding”. I draw no adverse inference about the father’s credibility or his veracity based upon it. If allegations of improper behaviour to a young child are made and are not true, reactions by those accused are likely to vary and may include the remarkable.
The detailed information of assisting the child in toileting and inadvertently catching the tip of her vaginal opening with his finger does not seem to be at all implausible. The details provided by the father are of a task carried out on innumerable occasions (not only on these two children, the father having two adult children from a previous relationship). As the father deposed he could provide the details because he “knows the routine”.
I am by no means convinced that the description of the toileting incident ought be labelled an “admission” of sexual interference as the mother asserts. The incident described by the father is, in my view, a plausible description of an accident while carrying out an everyday task.
Medical and Interview Evidence
Dr N examined S on 19 September 2008 in his role as staff paediatrician (child protection) at C Hospital. Dr N’s statement is annexed to the mother’s affidavit filed 11 February 2009. The statement records that the examination was normal and “neutral, neither confirming nor denying the alleged abuse”.
S was seen by a Dr E sometime after she saw Dr N. The Notification to Child Safety annexed to the mother’s affidavit filed 19 July 2010 records that an appointment was made with Dr E in response to “information that [S] had been itching her private parts and that [the mother] could see a lesion there.” The Notification goes on to record that “Dr. [E] advised that the lesion had not been caused by trauma, and was most likely caused by urine leakage.”
Counsel for the ICL cross-examined the mother in relation to the visit to Dr E and the ultimate opinion that the lesion was not a result of trauma. The mother deposed: “when the doctor explained this to me I did not know anything about medicine but as far as I knew and from what I saw my daughter had a cut”. The mother went on to confirm that the observation of the cut confirmed in her mind that her daughter had been abused. The ICL asked the mother if once the doctor’s opinion about urine leakage had been explained to her did she then think perhaps the child had not been abused. The mother replied: “No. I’m quite clear that instance did happen”.
The notes of police interviews conducted soon after the mother first confronted the father with the abuse allegations became Exhibit ICL4. The notes of interviews conducted on 16 September 2008 record: “The child was interviewed and during a 93A interview made no disclosures relating to the subject [father] touching her in a sexual manner”.
The notes go on to record that the officer had contacted the Department of Child Safety and the father would not be permitted to return to the matrimonial home until the Department had finalised their investigation. The notes also record that the appointment with Dr N was booked and would be maintained even though the investigation was finalised.
The Departmental notification records became Exhibit ICL5. The ICL also relied upon the s 69ZW report prepared by the Department in relation to the allegations of sexual abuse. The Departmental report records that on 18 September 2008 a Child Safety service centre recorded a child protection notification in relation to domestic violence incidents and allegations of sexual abuse.
The report goes on to record that interviews with police officers and departmental officers lead to “nil disclosures” of sexual abuse and examinations by Dr N lead to “nil findings of any trauma”. The Form 4 Notification of Child Abuse was screened by the Child Safety service centre on 2 June 2009 and ultimately recorded as a child concern report, not meeting the threshold for a protection notification as no new concerns were raised beyond those investigated in September 2008, no new disclosures had been made in regards to sexual abuse and the mother no longer resided with the father.
Subsequent statements by the child
The mother, Ms H and Ms A (another support worker who swore an affidavit in the mother’s case) provided evidence that, while the mother and children resided in the refuge, S was given lessons and counselling on ‘protective behaviours’ and shown DVD’s from the Bravehearts organisation to teach her about her ‘private parts’.
Counsel for the ICL questioned the mother about whether S had a concept of “private parts” or good and bad touching before the parties separated. The mother replied that she did not, that the classes through the refuge and sessions with K Organisation provided her with those lessons.
The K Organisation counselling notes became Exhibit ICL3(a)-(j). The notes for session 2 on 23 January 2009 (Exhibit ICL3(f)) include the notation that S did not know the rules about private parts. The notes record that S was told that “if anyone touches a child in their private part, they need to tell”. In response to a direct question as to whether she has ever been touched, S said “no”. These notes further record that the mother asked the counsellor if S “had made any disclosures in counselling and [the counsellor] said no.”
I note that at the time of this session the child had been living in the refuge for some four months and had been shown DVD’s and other information about inappropriate touching. The notes from K Organisation counselling reveal that not only has S made no further or repeated disclosures but that she denies any touching.
Alleged Behavioural Indicia
Paragraph 8 of the Notification to the Department annexed to the mother’s affidavit records:
8.I observed [S] to be quite an unusual little girl, with some inappropriate boundaries in regards to physical interaction. For example, one time at a public space she went and sat on top of some children who were strangers to her. She has attached herself to adults by twining her body around their leg, having only met them for 5 minutes. When she first arrived [at the refuge] she was constantly touching, draping things over, and feeling the other children at the refuge. She has hurt several staff members through her physical contact and with items she is holding. She also seems very bright and enjoys interacting with the other refuge children. …
The K Organisation records, Exhibit ICL3(b) and (c), note that the mother expressed concern that S was “touching herself” and “going up to strangers and touching them inappropriately”.
The ICL and counsel for the mother cross-examined Mr P, the family consultant, in relation to S’s behaviour as recorded by the support worker and K Organisation. In response to questioning from the ICL, and myself, about whether S’s behaviour was ‘concerning’, Mr P stated that it is extremely difficult to determine where the line falls between normal and concerning behaviour, but in this case his opinion was that there may be the “beginning of a concern”.
When specific focus was drawn to the living arrangement of the child, the movement to a refuge and the significant travel this as yet young child has undertaken to China and back, Mr P noted:
It is not unusual when children arrive at refuges to be aroused in terms of their affect; a little disorganised. So she was probably exposed to a heightened environment with lots of heightened emotions. I have observed children at these types of centres and what you get is this phenomena where they bounce off each other…this little girl’s attempts to interact or engage other children is easy for an adult looking on to label it with all sorts of things but it may have been nothing more than this little girl’s attempt to engage other children and her mind probably is … all over the place in terms of her emotions and sense of belonging. With all due respect to these centres, they are not easy places for children to feel settled and there is often transience. They are surrounded by comings and goings…bright lights and noise, upset people. It is very hard for these young children’s brains to calm down.
This opinion is in accordance with my own assessment of this young child’s situation. It must be noted that when S first entered the refuge with her mother and sister at the tender age of 4½ years old she had already experienced:
·significant international travel and periods of relocation in living arrangements between China and Australia;
·periods of very limited time with her father whilst she resided with her mother in China and her father lived in Australia;
·the establishment of a close relationship (in terms of quantity and intensity of time) with her father in September 2004, after living in China for the first 6 months of her life, that persisted until July 2007 when she returned with her mother to China, seeing her father on a few occasions for limited periods until July 2008;
·re-establishment of a close relationship with her father in July 2008 which was then abruptly removed in September 2008 upon her parents’ separation; and
·relocation from living with her family to refuge accommodation – noting the transience and instability of such living arrangements as addressed by Mr P.
Reaching conclusions about the cause of behaviours is inherently difficult. I would be reluctant in any event to place any real weight on second-hand (and third-hand) hearsay descriptions of behaviours. This is all the more so when such evidence is offered in support of a potential finding as significant as the occurrence of sexual abuse or that a person represents an unacceptable risk of sexual abuse.
Published Research
Counsel for the mother attempted to tender a bundle of what she described as “published research”. No notice had been provided to the father or the ICL of the intention to do so, or the contents of it. I refused the tender. Subsequently, counsel attempted to refer to the same “published research” in submissions. I also refused to take those submissions.
Counsel asserted that the first instance decision of Carmody J in Murphy & Murphy [2007] FamCA 795 was authority for the proposition that “published research” should be accepted in the manner in which it was sought to be used.
In Patsalou & Patsolou (1995) FLC 92-580, an appeal was based, in part, on a trial judge referring to a body of research in respect of domestic violence without that research being in evidence and without an opportunity being afforded to either party to make submissions or otherwise be heard in respect of it. The decision of the Full Court is, it seems, sometimes cited as authority for the bald proposition that reference to published research can be undertaken by a trial judge.
In my respectful view, the decision is not authority for that proposition at all as the judgment of the Full Court makes clear. Central to the decision of the Full Court was the fact that:
… the trial judge … did not use the research to support her findings (at 81,753)
… the trial judge did not, however, extrapolate any views or comments from those articles or otherwise rely upon them in any way. Indeed, she was careful to record: ‘There is no evidence of the effect, if any, of misbehaviour upon the children in this case’. (ibid)
The fact that [the trial judge] then indicates that there are writings of an expert nature that support her views does not, in my view, amount to a denial of natural justice. She is not raising there any issue of contention which she is not giving someone an opportunity to be heard upon. She is simply, in my view, stating the obvious. (at 81,755)
In Murphy and Murphy (in a judgment of some 784 paragraphs with over 350 footnotes), Carmody J extensively addressed (inter alia) the issue of published research. His Honour held, for example:
Common knowledge, at least in the context of a risk assessment in family proceedings, is admissible both under common law doctrine and by virtue of s 144(2) of the Evidence Act 1995 (Cth) and can certainly assist but child sex abuse is a human phenomenon full of contradictions and improbabilities. Thus, to properly discharge the court’s obligation to take into account the inherent likelihood (or unlikelihood) of what has been asserted and the considerations mentioned in the previous paragraph, judges need to be aware of at least the broad findings of research in this area. Children can deny that abuse has occurred when in fact it has, or claim that it has occurred when it has not. Without relevant and reliable information about such matters to assist it is easy to make false assumptions about a child’s veracity or the source and motives of a reported disclosure and what behaviour is or is not to be expected. (at par 335);
…
However, the cases suggest that judges are relatively free to consult accredited writings and make their own extrinsic enquiries from non-legal materials in forming and applying their own views on social issues. There is probably no other convenient or expedient way of doing it in this jurisdiction.
Social facts and findings should not be used to contradict expert opinions given in the proceedings, but they may inform legitimate questions and fill in evidentiary gaps where that can be done without unfairness. (at pars 341, 342) [emphasis added in each case and footnotes omitted]
His Honour cites as authority for the last of the two emphasised passages the judgment of the Full Court in Patsalou.With the greatest respect to his Honour, I am unable to agree that that decision is authority for the proposition that research per se can “fill in evidentiary gaps”.
Two decisions are cited by his Honour in support of the first of the underlined passages: KB and TC [2005] Fam CA 458 at [87] (reported as Bolitho & Cohen (2005) 33 FamLR 471) and ICI (Australia) v Workcover (NSW) (2004) 60 NSWLR 18. The quoted passage from his Honour asserts that s 144 of the Evidence Act 1995 (Cth) can be used to support the acceptance of such material. The Full Court said in KB and TC:
86. It is submitted on behalf of the mother that the trial Judge’s finding that “[n]ew siblings are likely to be a bonus rather than a deficit for the boys” was made without expert evidence. It is submitted that this finding “must have been an exercise of judicial notice which his Honour was not entitled to take”.
87. We accept that the benefit to be derived by a child from sibling relationships is not a matter which could be subject of judicial notice within s 144 of the Evidence Act 1995 (Cth), see also Hevi Lift (PNG) v Etherington [2005] NSWCA 42. The mother raised the issue of the capacity of the new wife to care for I and J and she was cross-examined about her intention or proposals about having children. The raising of this issue by the mother no doubt lead to his Honour’s finding. We are not satisfied that this finding by the trial Judge was of itself a significant factor in the actual circumstances of this case or that it in any way vitiates his Honour’s overall findings. [emphasis added].
With the greatest respect to his Honour, it does not seem to me that the decision supports the proposition for which his Honour contends. Moreover, other existing authority in this court on the subject also appears to me, with respect, to run contrary to his Honour’s assertion (see Patsalou, above; X & X (2000) FLC 93-017 esp at 87,316; McCall v Clark (2009) FLC 93-405 at par 126). Each of those decisions are, in my view, consistent with the passage quoted from Patsalou above.
Further, as is evident from the other decision footnoted by his Honour, the distinction drawn by Full Court authority in this court is a distinction consistent with the common law:
229 According to Cross on Evidence at [3135] there is a distinction between “general expertise which enables the specialist tribunal to understand quickly the evidence before it and to draw appropriate inferences from the evidence, and special knowledge which permits it to assert the existence of a particular fact.” In the latter case, according to Cross, “it is not proper for the tribunal to act upon such special knowledge without disclosing it to the parties and affording them the opportunity to rebut it or qualify by argument or by adducing evidence of the existence of that particular fact or by assigning a different significance to it.”
(ICI Australia Operations Pty Limited (now known as Orica Australia Pty Limited) & 1 Ors v The WorkCover Authority of New South Wales [2004] NSWCA 55 at par 229)
The distinction is, in my respectful view, important. It is unsurprising that a specialist tribunal or court should acquire specialised knowledge to which recourse might be had in the determination of matters before it (see the line of authority referred to in ICI Australia, above). But the use of “writings of an expert nature which support [a judicial] view” is, in my respectful view, very different indeed to the use of such writings “to support findings”.
Considerable circumspection should, in my respectful view, attend the use of any published research (whether in the manner held appropriate or otherwise). It seems to me that the specialised knowledge based on a person’s training, study or experience that permits of the giving of opinions that would otherwise be inadmissible as evidence (cf ss. 76 and 79 Evidence Act 1995 (Cth)) has, as a quintessential component of it, the expertise to give published research its proper place in the scientific mainstream.
“Published research” does not receive credence, cogency or credibility by reason alone of fitting that description. Moreover, in my view at least, it is difficult to see how a trial judge could determine the credence, cogency or credibility of the research (save in the manner indicated in ICI Australia) without recourse to expert evidence that addresses that very issue.
In my respectful view, where “published research” is said to be important to findings in a particular case, it should, in the usual course of events, be the subject of evidence from an expert who has the requisite attributes sufficient to qualify him or her as such in the area of specialised knowledge to which the “published research” refers. (See generally eg. Makita (Australia) Pty Ltd v Sprowles, above esp. at [87]) .
The Full Court in McCall v Clark (2009) FLC 93-405 pointed out that the admission of evidence of the type just described may have been rendered somewhat less problematic by reason of the introduction of Division 12A of the Act. (Although, I note, the Full Court used the example of s 69ZX(3)). But, that does not, in my view, render it unnecessary for any such material to be before the court as evidence nor does it remove the need for considerable circumspection to attend the application of that evidence to findings central to the decision.
In that respect, the caveat expressed by the Full Court in Dylan & Dylan [2008] FamCAFC 109 is, in my view, also apposite:
79. … the trial Judge discusses a number of books and articles on the topic of shared parenting, however, the source of the statement challenged is not identified. We think that the bold inclusion in reasons of propositions such as this, undesirable.
“Deviant” Sexual Practices
The mother asserts that the father engaged in ‘deviant sexual practices’ during the relationship. This was elucidated to be photographing his genitals with various accoutrements – for example, things protruding from his penis – and sending them to the mother, and wanting to photograph or film their sexual interactions. The mother also asserted that the father’s occasional habit of walking naked around his house was indicative of concerning behaviour.
The father says that the behaviour complained of was simply “a bit of sexual play between husband and wife”, that it was consensual and that the mother participated without complaint. I treat that evidence with some scepticism; I strongly suspect that a power imbalance existed within this relationship such that the mother may have viewed the behaviour quite differently to the father but, overtly, acquiesced in lieu of complaint.
Whether that be the case or not, I would, in the absence of cogent expert evidence, be very reluctant to treat behaviour of the type admitted as an indicator that a person is a perpetrator of sexual abuse toward his own child (or presents an unacceptable risk of same). ‘Normal’ in the context of consensual adult sexual behaviour is an amorphous concept that is (arguably) incapable of precise definition in the abstract, but rather, turns on the specifics of each relationship and the individuals within it.
Previous Behaviour Towards Other Children
The father relied upon affidavits sworn by his first wife and two (now adult) children of that marriage.
Each deposed to what might be described as issues relating to the father’s “character” and sought, as I understood him, to have me infer from them the evidence that he has had experience in nurturing children (including, specifically, a daughter); that he has done so perfectly adequately and has enjoyed a good relationship with both his former partner and their children despite their separation and divorce. I accept that evidence and those inferences said to be drawn from it.
As I understood it, however, a further inference was sought to be drawn from that evidence; in effect it was contended that a man who had lovingly raised two children, including a daughter, and who had retained perfectly appropriate and healthy relationships with them, would not have engaged in improper sexual behaviour with S.
I do not consider that a finding that the father was a perfectly appropriate, loving father toward the children of his first relationship (which I have no difficulty in making) can lead to a conclusion that he did not (or, effectively, could not) have engaged in improper sexual behaviour toward S many years later. In effect, such a submission invites a finding that the father has, as it were, a propensity to not engage in such behaviour, or, perhaps, is of such a character that would make such behaviour highly improbable.
I am not prepared to draw that inference for that purpose.
If the preponderance of evidence otherwise leads to a conclusion either that the father has not sexually abused S or that time with him does not present an unacceptable risk, the evidence just referred to might, at its highest, serve to provide a degree of additional comfort about the finding otherwise reached.
Findings As to Abuse and Unacceptable Risk
In my view, when considered as a whole, the evidence permits of the following findings.
S has not directly disclosed any form of abuse to anyone other than her mother. S was interviewed by the Child Protection Investigation Unit of the C Police, the Department of Child Safety officers, she was seen by Dr N and Dr E and, since living in refuge and supported accommodation with the mother, has received counselling from K Organisation. The resulting notes and records of these various agencies and organisations contain no disclosures by the child and some records express denials as to interference.
In any event, S was not yet 4½ when the alleged “disclosures” were made and, on the mother’s evidence, has said nothing of a similar type since September 2008.
I am not completely satisfied that the mother was a truly eager participant in what the father says was consensual sex play and I think it likely that (for cultural reasons or otherwise) she regarded (and regards) the behaviour as signs of “sexual deviance”. I think it very likely that the mother has heard and repeated S’s statements through that “filter” and interpreted and applied them as fitting within that existing pre-conception of the father which, as she sees it, would accommodate sexual behaviour toward his young daughter.
There is no medical evidence to suggest abuse. Moreover, what the mother identifies as a physical sign of abuse is assessed by a general practitioner as having an explicable organic cause.
S’s account of what the father allegedly did (as recounted by the mother) suggests some form of trauma (“it hurt” and “blood”). The specialist medical evidence does not suggest any form of trauma as alleged or at all.
S’s account of an occasion of abuse (as recounted by the mother) places it occurring at or around the child’s kindergarten and, on that account, there is a carer nearby. Abuse occurring there and then in that manner seems to me to be inherently implausible. Quite apart from anything else, a person with those proclivities perpetrating such an act in those circumstances would risk immediate disclosure. Further, there is no cogent evidence that the father was present on any occasion which might have given rise to the occurrence of such an event occurring in that manner.
And, of course, the mother’s evidence is that she made no enquiries so as to ascertain whether such an event was possible for any such event to have occurred. I find it remarkable (notwithstanding the mother’s language difficulties) that she did not initiate any contemporaneous enquiries at all about the possibility of such an event.
I consider the mother to be a person who was ready to believe that words expressed by S contained a connotation more sinister than their content. I consider the possibility of inexact recounting of those words to be very high. I think it possible that the mother has embellished those words in an attempt to be believed (or, perhaps, properly understood in a language not her own).
I accept the evidence of Ms H. She deposes (by way of description rather than direct quote) that S said to her after a visit at the contact centre “…that her Daddy had promised that the bad thing he did would not happen again”. Comments of that type would be expected to be found in the contact centre notes. The notes record (Exhibit ICL 2): “[S] asked her father of a toy man, ‘does he do bad things’? [The father] responded by saying “I don’t know”.
I prefer the contact centre account of what S actually said at the time. I do not accept that her words are indicative of the father (or anyone else) doing “bad things” (whatever that expression might, in any event, mean). I note that: the statement (such as it is) occurred in the context of otherwise extremely positive father-child observations of both Ms H and the contact centre; that S did not elaborate or say anything similar on any other occasion; that the language (“bad things”) was used only after S had spent time being shown drawings, DVD’s and the like in explaining “protective behaviours” and being spoken to about the potential for something to a number of agencies. I also have little doubt that the mother had shared her asserted anxiety about the father with S in (I assume) age-appropriate language (in either English or Mandarin).
Clearly enough the parents in this matter have been involved in significant conflict in recent times. I am satisfied, however, that they both love these two young children and want what is best for them. The parents have a considerable pathway of co-parenting ahead of them. S and T need, and will benefit from, the input of both their parents into the decision making process over major issues in their lives. Each parent has strengths and weaknesses that will beneficially contribute to these children’s learning and development, including their knowledge of, and involvement in, each parent’s language and culture.
I am mindful of the conflict between these parties but am satisfied that the consultation process required by an order for shared parental responsibility – restricted as it is to major long term issues – is a process that these parties should, and can, undertake knowing it is for the benefit of their children. I consider that to exclude one parent from this process for these as yet very young children is a step not justified or required in their best interests.
I will accordingly order that the parents have equal shared parental responsibility for the children’s “major long–term issues”
The Mother’s Beliefs, the Potential for Harm and Other Considerations
Consequent upon a finding that the father does not pose an unacceptable risk to the children, a very significant matter - referable, in turn, to a number of the matters required to be considered pursuant to s 60CC (esp. s 60CC(2)(a); (3)(b), (c), (d), (i)) - arises from the evidence of the mother that she would “never accept” a finding that the father either had not abused or did not pose a risk to the children.
An initial issue arises as to whether the mother is genuine and honest in that implacable belief or if, as was contended by the ICL, the mother’s evidence has an “air of theatrics” about it.
When cross-examined, Mr P said that he was “not surprised” that the mother had voiced a firm statement that she would not accept unsupervised time. Mr P said that he felt the “mother’s position [regarding unsupervised time] has consolidated” and his assessment of the mother was that she displays genuine “difficulty with [the prospect of] a finding of no risk or no abuse” and that difficulty flows directly from her beliefs.
The issue of a personally held belief that does – or may – impact on a person’s parenting capacity was highlighted in the unreported judgment of Russell and Close (Full Court of the Family Court Australia, Fogarty, Baker, Lindenmayer JJ, 25 June 1993), referred to in a number of cases since, including A & A (1998) FLC 92-800. There is an important distinction drawn between a belief genuinely held and one which is reasonably or objectively based. The inquiry is not into the reasonableness or rationality of the mother’s belief, but whether she genuinely holds it and its impact on an ultimate assessment of orders that meet the children’s best interests.
The resolution of that issue is not, in this case, cut and dried. I tend to agree with the submission of the ICL that the mother’s attitude had an air of theatricality or, perhaps, over-dramatisation, about it. I am concerned, though, that cultural issues of which I am not aware may play a part. So, too, I find aspects of the mother’s behaviour odd in a person with a genuine belief that something sinister had happened to her young daughter and I again refer to the absence of enquiry at the kindergarten.
What particularly troubles me is that the mother’s belief is informed by, as I find, knowledge and awareness on her part of the “secondary benefits” in expressing the beliefs. The mother has had the support of numerous social and child support workers at and through the refuge and other community organisations. I do not doubt that the assistance therefrom has been a considerable relief to the mother in gaining accommodation, acquiring help with the children and generally establishing a life separate from the father. The latter is, as I find, a purpose very much at the forefront of the mother’s mind.
If the mother’s belief is not – at least predominantly - honest and genuine, it seems to me that I would need to attribute to the mother Machiavellian planning of some sophistication; a charade that has pervaded interaction with multiple organisations and authorities: the Department of Communities (Child Safety Services); the Queensland Police Service, counselling services, refuges. I am not prepared to attribute to the mother that level of connivance, planning and purpose.
However, having considered carefully all of the evidence and having carefully observed the mother during the course of the proceedings, I am, on balance, in agreement with the assessment of Mr P that the mother genuinely believes that the father has abused their daughter and that she holds genuine concerns about the father posing a risk of further abuse.
While s 60CC(2)(b) refers to protection from harm arising from “abuse, neglect or family violence” as a primary consideration, the protection from any significant harm (including psychological and emotional harm) is – axiomatically as it seems to me – a matter of fundamental importance in arriving at orders that meet children’s best interests.
I have no doubt that the children’s primary attachment is to their mother. Mr P notes in his report filed 15 January 2010 that “the children’s ages make them entirely dependent upon their carer”. A consideration of the background and chronology of care makes it clear that the dependence referred to has largely been upon the mother. Not only are the children’s early years marked by long periods away from the father when the mother was in China, but, more recently, the children have spent virtually no face-to-face time with the father since Boxing Day 2009 and each party concedes that telephone contact has been sporadic at best.
That analysis is not to attribute to the father a minor or unimportant role; rather it is a reflection on the children’s ages and stages of development; their erstwhile lives being spread over two countries with very different cultures and their mother being a constant in both; a curtailment in the amount of continuous time that the father has been able to spend with the children while they were in China and the post-separation time arrangements that are a product both of the allegations made against the father and his expressed attitude to time spent at the nominated contact centre.
With those matters very much in mind, I raised with Mr P when he was in the witness box what I see as three possible harms emanating from orders that might attempt to embrace the mother’s belief:
·The children spend no face to face time with the father, either at all or outside of the structured environment of a contact centre. This has the potential to cause the children significant psychological harm as a relationship which they clearly want and need with their father will be totally, or very significantly curtailed. There will be, in those circumstances, little chance of the children enjoying a meaningful relationship with their father;
·The children spend time with the father in an unsupervised context on a regular basis with the attendant stress and distress that the mother has sworn this would cause her. The potential for harm arises from the impact on the children’s primary caregiver and any actions she may take in respect of what she perceives to be “protecting them”;
·The children are taken from the mother and placed with their father. I consider the potential for harm arises from the distress which I consider the children would plainly experience in not being able to receive their primary care from their mother (in particular T who is still very young).
Mr P agreed that the potential for harm, expressed in a manner similar to that outlined, was present in each situation and agreed that a resolution consistent with the children’s best interests did not easily commend itself. Yet, in his oral evidence, he said that “altering the primary care arrangement is a critical issue”. He went on to explain that certain traumas, or harms can be considered to have a greater likelihood of ongoing negative effects than others. For these children, he thought, severing the primary emotional attachment with their mother was probably the critical issue. I agree with this assessment.
Obviously enough, the mother’s expressed belief clearly raises a concern as to her willingness and ability to facilitate a relationship with the father – a plainly very important consideration in this case.
I agree with the assessment of the family consultant that both parties in this matter seem to have lost sight of the ultimate impact upon the children of their behaviours, allegations and counter-allegations. So much is frequently a by-product of central allegations of the type under consideration. Nevertheless, I consider that the mother accepts – albeit, for the most part, intellectually – that the children will benefit from having a meaningful relationship with their father.
I am somewhat more sanguine about the father’s attitude in that respect. I have already made comment about the nature of the material contained in both his affidavits and those of his witnesses. A charitable view is that anger and mistrust, caused by the nature of the allegations, their manifest seriousness and the impact upon the children’s relationship with the father has caused him to allow anger to predominate over good sense. He might see this as understandable, but it doesn’t help the children.
With some reservations, I am, ultimately, prepared to allow the charitable view to inform my findings about the father’s capacity and willingness to promote a relationship between the children and their mother and findings as to his “attitude to the children” and “the responsibilities of parenthood”.
While I consider that the mother harbours attitudes and beliefs that will be difficult to alter, I am not persuaded of the impossibility of such beliefs being shifted in light of this judgment and the ending of this litigation. Further, the court process has, whatever its failings, given the mother the opportunity to have her views ventilated and determinations made and I consider this will ultimately be of assistance in the process of altering her views.
Specifically, I am not satisfied that the mother will refuse, or fail, to do what is required of her by the orders I make. While the mother expresses her view stridently and emotionally in the course of court proceedings, I assess her as likely to commit, ultimately, to a process that will allow of a relationship between the father and the children.
In that respect, it is important to note that co-operation has attended the facilitation of time arrangements even during the time that the trial has been pending – obviously, it should be observed, a time of considerable stress and heightened emotions.
Ultimately, I am tolerably confident that, over time, the mother will accept the judgment of this court and co-parenting arrangements are likely to proceed in a relatively smooth way.
I accept, however, that a process will be involved in that. The process should allow of the mother to seek and obtain such counselling or other assistance as she might require so as to assist her in accepting and adjusting to the orders to be made. I do not propose to order her to undertake such counselling; its utility will depend upon her commitment to it.
Equal Time Considered
The children are just 6 ½ and 2 ½ years old. Neither party seeks an order for equal time. It is clear that these children have experienced considerable upheaval and instability in their lives.
Mr P said in oral evidence that, based on his assessment of the background in this case and his observations of the children, they are yet to “be able to put roots down” and are yet too young to have established a sense of who they are as individuals. I accept that evidence; it is consistent with the largely uncontested chronology of care to which earlier reference has been made.
I consider that the evidence in this matter points to the need to allow these children to develop and experience stability and security in their lives and in their relationships with significant adults; to use Mr P’s words, they “need to put down roots”. I consider that dividing their time between their parents is antithetical to what I assess to be a matter of primary importance to their best interests.
I find that an order for equal time is not in these children’s best interests.
Reasonable Practicability of Equal Time Considered
On a purely practical level, issues of distance, expense and the practical capacity of the parties to implement the order would not render such an order reasonably impracticable (cf s 65DAA(5)(a), (b), (c)).
But, as it seems to me, reference to the judgment in MRR v GR, above, makes clear, the statutory reference to “capacity to implement” and “capacity to communicate … and resolve differences” is not confined narrowly, but, rather, embraces a consideration of the wider emotional and psychological components of the specified capacities.
As is clear from what appears above, I am tolerably satisfied that the mother will, over time come to accept the decision of this court and to allow her appreciation of the need for the children to have a meaningful relationship and to benefit from it. There is, however, a way to go. I do not consider that the parents are yet able to communicate effectively enough or, particularly, to resolve their differences so as to make the implementation of an equal time regime reasonably practicable.
I find, then, that an equal time order is neither in the children’s best interests nor reasonably practicable.
Substantial and Significant Time Considered
Neither party, nor the ICL, seeks orders achieving substantial and significant time as defined in s 65DAA(3). Nevertheless, the court is obliged to embark upon a consideration of the statutorily-defined time, because that consideration is a precursor to the exercise of the power to make a parenting order in this case. (MRR v GR).
I consider that very similar considerations apply to the assessment of whether substantial and significant time is in the best interests of these children as those outlined above in respect of equal time.
A co-parenting arrangement that requires numerous changeovers and increased potential interactions between the mother and father is, in my view, contra-indicated in establishing the central stability earlier referred to as central to the children’s best interests. Indeed, the father said in the witness box that he felt the changeovers could pose a concern as the mother and he may have opportunity to disagree, leading to argument or stress in front of the children. I think his foreboding is justified.
I repeat that I consider that it is central to S and T’s best interests that they be permitted to acquire as much post-trial stability in their routines and living arrangements as can be reasonably achieved.
S is at the beginning of her schooling. The transition to school can be difficult enough and can require considerable adjustment even in the best of situations. I consider that, for example, any requirement for S to have mid-week time with the father poses a potential challenge for that stability in the circumstances under consideration here. The potential interruption and instability involved for S in particular in my view, outweighs the potential benefit of that time.
The extent of the mother’s current anxiety and the potential for this to ‘filter down’ to the children in a co-parenting arrangement that involved regular changeovers, weekend and mid-week time also points against such an arrangement being in the children’s best interests.
I am satisfied that orders for substantial and significant time are not in the children’s best interests.
Reasonable Practicability: Substantial & Significant Time Considered
For the same reasons set out in relation to equal time orders, I consider that orders for substantial and significant time – while logistically achievable – are not reasonable practicable.
I find, then, that an order for substantial and significant time is neither in the children’s best interests nor reasonably practicable.
Orders as to Time
By reason of the matters earlier set out, it will be clear that I have concluded that it is in the best interests of the children to live with their mother.
In my view, orders that would see the children spending no face to face time with the father carry with them the risk of serious harm of the type earlier identified. The only ‘picture’ of their father that the children would be exposed to would be the mother’s belief that he is an abuser, a risk and a source of fear.
The mother’s anxiety would be the only adult perspective of their father that the children would know. Clearly, in light of the findings as to risk and the finding as to the children’s desire to have a meaningful relationship with the father, this is not in their best interests.
Counsel for the ICL submitted that long term supervision is rarely regarded as an ideal solution to conflict between parents (a proposition different, as I understood it, from that criticised in Re C and J (1996) FLC 92-697 at 83,341- 2 per Fogarty, May JJ). As the Full Court pointed out in RG v JR [2006] FamCA 293, “… in many cases the effect on children of indefinite, long term, supervised contact, particularly if such contact is to continuously occur in a children’s contact centre, may not be in a child’s best interests”. I think that statement directly applicable to the children in this case.
Counsel for the ICL also submitted that this matter may be one in which a “review” mechanism in 12 months may be warranted to determine how supervised time (or a combination of supervised and unsupervised time if that is ordered) is progressing and whether the mother’s anxiety or beliefs have lessened.
While such an order may have the advantage of providing additional information for the court, I very much think that what these children need is an end to proceedings and their attendant investigations of and about them.
I am cognisant of the need to consider orders that will be least likely to lead to further proceedings (s 60CC(3)(l)). I also have a duty to consider the needs of these children and the impact of the proceedings on them (s 69ZN(3)).
I consider that an interim order with a review is likely to be of more harm to the children than benefit. I think it would be highly likely to prolong the conflict about the children and limit significantly the mother’s incentive and capacity to accept the decision embraced by these reasons and orders. That would, in my view, be significantly detrimental to the children.
I consider that the children’s time should be predominately with their mother but that the father should see them regularly and predictably.
I have already found that time with the father does not present an unacceptable risk to the children. There is, then, no reason for time with the father to be supervised by reason of any harm which he presents to them.
However, I have spent some time in these reasons considering the mother’s anxiety and the potential for it to lessen over time. I have ultimately concluded that the mother will, in the end, come to accept the determinations made in this case and seek to promote time between the father and the children. I have accepted, though, that this may take some time. It seems to me appropriate that during that process – and I consider that the mother’s attitude will be changed over (and probably by) time – the mother should have the, as it were, security of knowing that the children will be safe from the harm which she perceives.
That can be achieved, as it seems to me, by ensuring that time is supervised for a period of time. There is, of course, no way to properly predict a time frame over which that supervision might assist in alleviating the issues to which I have earlier referred.
Equally, the time frame of any such curtailment on time with the children, needs to take account of the desire, considered to be in the children’s best interests, to allow regular and predictable time to occur as soon as considered appropriate.
I consider a period of six months best achieves that balance.
In addition, supervised time should, ideally, occur in as natural a setting as possible with a supervisor agreed between the parties. I appreciate the difficulties involved in arranging that can be significant and intend to provide for it to occur by agreement and, in default at a contact centre.
After a period of six months, unsupervised time should be gradually introduced to provide the children the chance to further develop and experience the relationship with their father and while the mother strives to adjust to these findings and the orders. Thereafter, the children should spend alternate weekend and holiday time with their father and I propose to so order.
Orders in Restraint of Travel
The father and ICL sought that the existing airport watch orders remain in place such that the children cannot leave Australia without Court order.
The father deposed to the mother hiding the children’s passports. The father subpoenaed a Senior Constable now with the Australian Federal Police, but previously involved with the parties whilst with the Queensland Police, to give evidence. The Senior Constable gave evidence that when called to the parties’ home and while in the course of addressing the parties concerns, she requested the mother to reveal the children’s passports. The officer deposed to the mother revealing the passports, bank statement and a visa card application form “wrapped in a cloth”.
The mother was questioned as to why the passports were wrapped and hidden. The mother deposed that, previously, the father had removed the passports from the house and sent them to his sister. Upon gaining them back, the mother hid them to ensure the father could not take them away again. In effect, the mother’s evidence was simply that she was hiding the passports so the father could not hide the passports.
There was a dispute as to whether the mother had completed a Visa application form in the father’s name and whether this card was intended by her for use in purchasing an air ticket for her and the children to China. The mother denied this.
I was not impressed by any of the mother’s evidence on this issue. I was left with the strong impression that the mother was formulating a plan to unilaterally remove the children to China. However, even if I am wrong in that impression, a number of essentially uncontroversial facts cause me concern that such an event may occur.
First, comment has already been made about the mother’s expressed attitude to a judgment contrary to her asserted belief. Her reaction was, as has been observed, strident and emotional. The immediate aftermath of the judgment presents a particular concern that the mother’s emotions may rule over a more rational assessment of what is best for the children, including, in that respect, their on-going relationship with their father.
The mother has family in China and no real family here. She and the children have already lived in China and S (and I took it, also T to a limited extent) can speak Mandarin. China is a large country with a vast population. It is not a signatory to the Hague convention. It has a legal system markedly different to ours.
The mother denies any plan or desire to live in China with the children permanently. If she is accepted at her word, there is no prejudice caused to her by an order in terms of that which will be made save that, should she choose to travel to China with the children, a process of negotiation with the father will be required and, failing agreement, a court order. Whilst the latter might be properly seen as burdensome, the former is what should be expected of separated co-parents (See, eg. s 65Y).
The consequences of a failure to make an order if the feared event was to materialise, would likely be very significant in establishing contact with the children and, for so long as the children were in China, very considerable difficulties in them enjoying the meaningful relationship with their father from which I have found they are likely to benefit.
I consider it appropriate that orders of the type contended for should be made.
I make it clear that I consider it appropriate and it is in the children’s best interests that they be able to maintain on-going relationships with their maternal family and have first-hand experience in maintaining ties to their Chinese heritage. Thus, it seems to me likely that the mother will seek to travel to China for periods of time in the future.
The orders do not seek to prevent that; rather, they seek to prevent that occurring unilaterally and without any opportunity for the father to be heard as to appropriate comfort being given that they will be returned or, should the mother assert that a permanent move to that country is in the children’s best interests, either parental agreement or, otherwise, court order determining any such proposal.
I order in accordance with the orders set out at the commencement of these reasons.
I certify that the preceding two hundred and forty-four (244) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 20 August 2010.
Associate:
Date: 20 August 2010
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