ZEEHAN & ARCHIBALD
[2011] FamCA 534
•16 December 2011
FAMILY COURT OF AUSTRALIA
| ZEEHAN & ARCHIBALD | [2011] FamCA 534 |
| FAMILY LAW – CHILDREN – Magellan matter - allegations of sexual abuse – whether child is at unacceptable risk of sexual abuse in the unsupervised care of his father – whether child ought to be permitted to relocate with mother – finding of unacceptable risk FAMILY LAW – CHILDREN - parental responsibility-presumption of equal shared parental responsibility does not apply due to unacceptable risk – also not in the best interests of the child – mother to have sole parental responsibility for the child. |
| Family Law Act 1975 (Cth) ss 60B(1), 60CC and s 61DA Evidence Act 1995 (Cth) s 128 |
| Hartford and Ansilda [2009] FamCA 23 Hermiro & Simla [2009] FamCA 181 Tasmania v McLean (2008) TASSC 57 Heath & Hemming (No 2) [2011] FamCA 749 |
| APPLICANT: | Ms Zeehan |
| RESPONDENT: | Mr Archibald |
| INDEPENDENT CHILDREN’S LAWYER: | Mrs Kate Mooney |
| FILE NUMBER: | HBC | 476 | of | 2010 |
| DATE DELIVERED: | 16 December 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 25, 26, 27, 28 & 31 October 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Melissa Eddington |
| SOLICITOR FOR THE APPLICANT: | Murdoch Clarke |
| SOLICITOR FOR THE RESPONDENT: | Self represented |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mrs Kate Mooney |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission |
Orders
Ms Zeehan (“the mother”) shall have the sole and exclusive parental responsibility for V Zeehan-Archibald born April 2007 (“the child”). The mother shall promptly inform the father of details of any major decisions she proposes to make or makes in relation to the child.
The mother be permitted to relocate the primary residence of the child from Tasmania to New South Wales.
BY CONSENT the child shall live with the mother.
The child spend supervised time with Mr Archibald (“the father”) three (3) times per year at the G Children’s Contact Service in New South Wales and that the mother pay the father’s reasonable return airfare from Hobart to Sydney and the fees of the Contact Centre associated with such visits, on such dates reasonably requested by the father and suitable to the child.
The father shall spend such other supervised time with the child as agreed between the parties with such time to be at the expense of the father.
BY CONSENT the father’s contravention application filed 2 August 2011 be dismissed.
IT IS DIRECTED
The following documents be forwarded to the Secretary, Department of Health and Human Services Tasmania by the Independent Children’s Lawyer, within twenty one (21) days of the date of this order:-
(a)a copy of these orders;
(b)a copy of the reasons for these orders are based;
(c)a copy of the report of the affidavit of Dr Z filed 15 July 2007;
(d)a copy of the affidavit of Ms E filed 5 May 2011;
(e)a copy of the report of Ms M dated 2 September 2010;
(f)a copy of the report of Mr P dated 27 June 2002;
(g)a copy of the report of Mr P dated 1 July 2010;
(h)a copy of the report of Dr W dated 17 June 2010;
(i)a copy of the report of Dr O dated 20 July 2010;
(j)a copy of the reports from the Hobart Children’s Contact Service dated December 2010 and April 2011;
(k)a copy of the Family Report dated 12 November 2010; and
(l)a copy of Child Dispute Conference Memorandum dated 25 August 2011.
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.
All outstanding applications regarding parenting are dismissed.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits be returned to the person or persons who tendered the same.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment under the pseudonym Zeehan & Archibald is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: HBC 476 of 2010
| Ms Zeehan |
Applicant
And
| Mr Archibald |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Ms Zeehan (“the mother”) and Mr Archibald (“the father”) are engaged in Family Court litigation in respect of the parenting arrangements for their son V (“the child”) who was born in April 2007 and at the time of the hearing was aged about four and a half.
THE ISSUES
There are two fundamental disputes between the parties. The first is whether the child is at unacceptable risk of sexual abuse in the unsupervised care of his father.
The second is whether the mother ought to be permitted to relocate the residence of the child from Hobart, Tasmania to the Central Coast of New South Wales.
The mother’s primary contention is that the child is at unacceptable risk of abuse in spending unsupervised time with the father. She says that circumstance outweighs any benefit the child may receive by having a meaningful relationship with the father. To that end the mother seeks orders that the child live with her and that she have sole parental responsibility. In addition, the mother seeks orders that the child spend time with the father three times per year at the G Children’s Contact Service (and that the mother pay the costs of those visits); and that further time be as agreed between the parties from time to time at the father’s expense.
The mother goes on to say that if the Court is not satisfied that the child is at an unacceptable risk of abuse, then she be permitted, in any event, to move to New South Wales with the child and that the child spend time with the father during school holidays. The mother has offered to provide three return air fares per year.
The father disputes that he presents as an unacceptable risk to the child. The father concedes and agrees that the child should be in the primary care of the mother but says that the child should remain living primarily in Tasmania to ensure that the child has a meaningful relationship with him. He proposes that there be equal shared parental responsibility and that the child spend time with him over the school holidays and regularly during school term.
At the conclusion of the evidence and in her submissions counsel for the Independent Children’s Lawyer said that the child was at unacceptable risk in the unsupervised care of the father and that the mother ought to be permitted to relocate to the Central Coast.
THE BACKGROUND
The mother is aged 48 and is in good physical health. Her emotional health that was the subject of some evidence. The mother is presently living with her new partner in the Central Coast area of New South Wales. She is not presently in paid employment. She is qualified as a child care provider and has run a business in that regard.
The mother had a total of six children:-
·D, who is aged 27 and lives in Europe;
·B, aged 25 who is based in Europe;
·K, a daughter aged 23 who is travelling but is likely to return to Australia;
·U aged 19 who lives in Tasmania. He is having a gap year and proposes to undertake tertiary studies in the near future.
·C, aged 14, who presently lives with the mother on the Central Coast and attends a specialist high school in Sydney.
·The child. It is intended that he will commence kindergarten at the beginning of 2013, the question is whether that is in New South Wales or Tasmania. The child last saw the father in September 2011.
The father is aged 50 and is in good physical health. He has from time to time suffered from depression and has had suicidal thoughts, which health issue are referred to in these reasons. The father has lived in Tasmania all of his life. He is presently working for a service company.
The father has one child from a previous relationship, namely A, who was born in March 1997 and who is now aged 14. The father is estranged from A.
It is common ground that the parties commenced a relationship in 2003 and started living together in 2006. The parties married in December 2007. There is an issue as to the date of separation. The parties agree that the father moved out of the former matrimonial home in November 2009. The mother’s case is that they ceased being a couple in about March 2009. The father says that separation took place in November 2009. Not much swings on this issue, except as it reflects the different perspectives of the parties in the light of the hostility and anxiety surrounding the breakdown of their relationship.
The father has been involved in a series of relationships and it is of value to set these out as a number of his former partners feature as witnesses in these proceedings.
The father’s first wife was Ms F. That relationship ended when they separated in about 1988.
Following that relationship the father met and married Ms L. A is a child of that relationship. The father and Ms L separated about September 1997. Ms L was a witness in these proceedings.
In 1998 the father commenced a relationship with Mrs N. They lived together in northern Tasmania for about five years. They separated in April 2003. Mrs N, had a child from another relationship, H who was born in 1990 and lived with the parties. In about 2000 and/or 2001 H was sexually abused by a relative whilst spending time with her father and/or paternal grandparents. H made disclosures of the sexual abuse in or about October 2001. None of the parties to these proceedings were involved in the abuse of H. The relationship between the father and Mrs N ended without acrimony and Mrs N endeavoured to provide information supporting the father to the child welfare authorities in relation to the disclosures made by N.
In September 2003 the father says he formed a relationship with the mother and that relationship continued until 2009.
After the father left the former matrimonial home in November 2009 he, soon thereafter, commenced relationship with Ms R, a health professional. That relationship continues and Ms R gave evidence in these proceedings.
At the time of ceasing to live together under the same roof in November 2009 the parties entered into an agreement whereby the child, who was then aged about two and a half, lived with his respective parents for equal time. There is an issue as to the circumstances giving rise to that agreement, but it is not in issue that the arrangement operated from mid November 2009 until 31 May 2010.
It is not in issue that following the implementation of that shared parenting arrangement the child exhibited some behavioural problems. Bearing in mind that the child was aged two and a half and his primary attachment figure was the mother, that outcome was almost inevitable.
On 1 June 2010 the child was taken to visit a general practitioner, Dr O and she observed:-[1]
[1] Exhibit ICL 6.
… marked excoriation (redness) around the anus and inflammation was extended to the rectus, also a midline tear (12 o’clock) was evident.
Dr O formed the view that one of the possible explanations for the observed conditions was sexual assault. In fairness, she considered there were a number of other possibilities including the passing of a hard stool of faecal matter. It was not in issue that from at least December 2009 or January 2010 the child had been retaining stools whilst in the care of the father.
On 17 June 2010 the child was examined by Dr W, an experienced Paediatrician at the Royal Hobart Hospital. At that time (a little over two weeks after Dr O’s examination) Dr W found no abnormalities. She noted that an abdominal x-ray of the child taken in January 2010 showed marked faecal loading throughout the colon and a repeated x-ray taken on 17 June 2010 showed some faecal loading.[2]
[2] Exhibit ICL 5.
Her unchallenged evidence was:-[3]
[3] Ibid.
The history obtained is suggestive of a perianal tear in early June [2010]. There is no physical evidence of this today, but this would not be unexpected as perianal tears heal quickly.[4] Perianal tears are common to children in whom significant constipation is present, and are caused by the passage of a hard stool. Other possible causes include an insertion of an object into the anus.
[4] In cross-examination Dr W said it was possible that these tears can sometimes take longer to heal.
The child saw Ms M, a professional counsellor employed with the Hobart Sexual Assault Support Service. Ms Ml was a witness in these proceedings and said she saw the child on four occasions on and after 21 July 2010.
In early May 2010 the child had earlier been referred to and saw Mr P, a psychologist. That involvement of Mr P did not continue as Mr P had been involved in a much earlier assessment with regard to the father’s child, A. Mr P provided a report and gave evidence in these proceedings.
In terms of proceedings the parties had entered into consent orders both in regard to property and children’s issues which were formally made on 26 May 2010. The mother applied for a divorce order in the Federal Magistrates Court on 31 May 2010. That application was heard and determined on 23 July 2010.
These proceedings were commenced by an application made by the mother on 29 June 2010, an Independent Children’s Lawyer was appointed, a request was made for intervention by the Department of Health and Human Services and a “Magellan” report was ordered. The matter was designated as being one in which the Magellan protocols should apply.
A family report was ordered and was released in November 2010. These proceedings were listed for a three day hearing commencing 10 May 2011. That hearing date was vacated and the matter was listed for a final hearing for five days commencing 15 August 2011.
The proceedings came before me on 15 August 2011 and at that time the Court was informed that the mother’s second youngest child, C, had made allegations that the father has sexually abused her. A police investigation had commenced and time was provided to enable the police to interview both the father and C and to conduct relevant enquiries. Due to some delay with the police investigation the matter did not proceed to hearing until Tuesday 25 October 2011.
The parenting orders made 26 May 2010 were suspended, by consent, by orders made 9 September 2010. An order was made that the child spend time with the father at the Hobart Children’s Contact Service on days and hours made available by that Service. The child spent regular time with the father at the Children’s Contact Service from October 2010 through to at least April 2011.
The evidence from the Hobart Children’s Contact Service[5] show that the visits were going well. There were some issues, from the perception of the workers at the Children’s Contact Service in relation to the father’s use of language that was not age appropriate but that was, in all the circumstances, of little significance.
[5] Exhibits ICL 8 and ICL 9.
Similarly there was an issue about the father taking Christmas presents for the child and then retaining them at the end of the visit. Again, that is of little significance in the context of these proceedings.
In July 2011 the mother cancelled two of the child’s visits to the Children’s Contact Service due to ill health, firstly of the child and then of herself. The next visit was also cancelled as the mother wanted to travel to Sydney for a birthday in circumstances where she gave the father a few days notice and where her flight had been booked some weeks before. The mother showed little regard to the orders of the Court and the importance of the child having an ongoing relationship with the father by cancelling the third visit. It reflects adversely upon her in terms of encouraging a relationship between the child and the father.
The father commenced contravention proceedings in August 2010. He did not pursue those contravention proceedings but asked that the factual basis upon which those proceedings were predicated ought to be taken into account in terms of the determination.
As a consequence the father’s contravention application was dismissed and the facts and circumstances in this regard have been taken into account in this determination.
On 28 September 2011 the father filed an application for interim orders that the child spend time with him with such time to be supervised by an adult.
That application was listed for hearing during the final hearing. At the end of the proceedings the father said that he did not wish to pursue that application at this time. Accordingly that application was dismissed.
In these reasons any statement of fact is to be regarded as a finding of fact unless the contrary is clear from the context of the statement.
THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED
The provisions in the Family Law Act 1975 (Cth) (“the Family Law Act”) relating to children rest on the importance of a child having a meaningful relationship with his/her parents and the need to protect children from harm. These objects are contained in s 60B(1) of the Act, which provides:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
When determining parenting orders a court must put in place orders which will endeavour to be in the child’s best interests, as the paramount but not sole consideration. In undertaking this exercise the Court must consider the primary and additional considerations set out in s 60CC of the Act.
There is a rebuttable presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child. If there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence the presumption does not apply.
If there is an order for equal shared parental responsibility (by application of the presumption or otherwise), a court must consider whether equal time with each parent would be both in the child’s best interests and reasonably practicable. Further, if an order for no equal time is made, a court must consider whether an order should be made providing that a child spends substantial and significant time with each parent if that is in the child’s best interests and is reasonably practicable.
As to alleged sexual abuse, Brown J summarised the principles in such determinations in Hartford and Ansilda [2009] FamCA 23, where she said:-
19 The core principles are those enunciated by the High Court in M and M (1988) 166 CLR 69. The High Court (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) made it clear that the ultimate and paramount issue to be decided in proceedings for what are now called parenting orders is whether the making of the orders sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation of sexual abuse by the parent who seeks residence or time with a child does not alter the paramount and ultimate issue which the court has to determine. The High Court found (at 76) that although findings on the disputed allegation of sexual abuse will have an important, and sometimes a decisive, impact on the resolution of that issue,
…it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318: McKee v McKee (1951) AC 352 at pp 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. 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: cf J v Lieschke (1987) 162 CLR 447 at pp 450, 458, 462, 463-464.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent 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. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a context between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
20.In a joint judgment in B and B (1993) FLC 92-357 the Full Court (Fogarty, Baker and Purvis JJ) discussed the relevant principles, having regard to the High Court’s decision in M and M and at 79,778 said:
The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
The ‘unacceptable risk’ test is therefore the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access’. In other words, where the court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
21.In Re W (Sex abuse: standard of proof) (2004) FLC 93-192 the Full Court (Kay, Holden and O’Ryan JJ) examined the principles applicable in cases involving difficult questions of sexual abuse where the only witnesses to the alleged abuse are the alleged perpetrator and the alleged victim, noting the particular difficulties where the victim is young and does not give any direct testimony that can be the subject of forensic testing.
22.The Full Court considered the relevance of the decision in WK v SR (1997) FLC 92 -787. In that case the trial judge had found that the father had sexually molested both his step-daughter and his own daughter. The Full Court said, at 84,691:
26. However, the evidence of ZH was in fact the core evidence relied upon by his Honour in order to substantiate the allegations of abuse against the father. Given the gravity of the allegations raised by the evidence, and the Court's duty to apply a rigorous civil standard of proof pursuant to the test enunciated by the High Court in Briginshaw (supra) and restated in s 140 of the Evidence Act 1995(Cth), her evidence needed to be very carefully evaluated.
[…]
46.It is clear therefore, that a finding that abuse has occurred can only be reached by a strict application of the onus of proof as set out in Briginshaw. Section 140 of the Evidence Act 1995 (Cth) has adopted this test as follows:
'140 (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject matter of the proceeding; and
(c)the gravity of the matters alleged.
47. In children's matters under Part VII of the Family Law Act, where the issue is a child's contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s 140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
48. This is a matter which must be specifically borne in mind by a Court which is exercising jurisdiction under Part VII of the Family Law Act. When exercising its jurisdiction under this Part, the Court's paramount consideration must be the best interests of the child, in accordance with s 65E. The application of this overriding factor often allows the admission into evidence of material which would otherwise be excluded if a rigid application of the rules of civil evidence were followed. Furthermore, when deciding what orders are in the best interests of a child, a trial Judge may often be confronted with a multiplicity of issues and facts. In these circumstances, evidence which, for example, is relevant and probative in relation to the question of an unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incident of abuse has in fact occurred.
The Full Court found that the trial judge had not paid attention to these views, and that unless the rigorous approach set out in WK v SR is taken, in circumstances where the often inevitable result of a positive finding of abuse is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and the child the disastrous effects of a positive finding that is reached in error. The Full Court found that the termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort, noting (at 79,217-8):
The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to remain conscious of this imperfection at all times.
23. The Full Court then referred with approval to the dissenting judgment of Kay J. in K v B (1994) FLC 92-478 where his Honour said, at 80, 972:
In cases of alleged sexual abuse, there is a significant risk that the ultimate effect of orders to be made by the court, and of the proper operation of the legal system, will be overlooked in the court’s anxiety to ensure that the risks of sexual interference are minimised. Where the evidence of sexual abuse consists of ambiguous statements of a pre-kindergarten aged child coupled with perceived but possibly otherwise explicable behavioural changes, it is almost impossible for the party denying any impropriety to prove that party’s position.
In an article entitled 'Prediction, Prevention and Clinical Expertise in Child Custody Cases In Which Allegations of Child Sexual Abuse Have Been Made', appearing in Volume XXVI No 2 Summer 1992 Family Law Quarterly (Publication American Bar Association Section of Family Law), at p 170, it was observed:
'Unfortunately the magnetising force of the simple allegation of a heinous event such as child sexual abuse, which legitimately invokes consideration of the possibility of that event, draw the clinician — and perhaps even judges and jurors as well,... away from what ought always to be the starting point of her or his evaluation enquiries, which is that the event did not (or very highly probably did not) occur. Because the null hypothesis (and, correlatively the absence of an event) cannot be proved, in their testimonies concerning possibilities of alleged events, clinicians strongly resist exonerating the targets of their evaluation. Because it is always possible that a given individual — even one randomly drawn from the general or a specific population — has sexually molested a child, an inconvertible proof that the individual has not molested a child is impossible.' (emphasis in original)
The article concerns itself with research carried out at the University of Michigan. Case notes concerning the possible sexual abuse of a three year old child were provided to 8 senior clinical psychologists, 23 graduate students undergoing clinical training in psychology and 50 members of staff of child guidance clinics including social workers, clinical psychologists and psychiatrists all specialising in child development in areas of child mental health. They were asked individually and then in groups to evaluate the probabilities that sexual abuse had occurred and then to recommend what if any ongoing child/father contact should take place.
The range of opinion on whether there had been abuse was so wide that the authors concluded as follows:
The most striking feature of these studies’ findings is the extremely large range across experienced and non-experienced clinicians of estimates concerning the likelihood that M was sexually abused by her father. When given all of the relevant facts of the case, child experts and trainees varied greatly in their individual judgment... These findings lend strong support for the view that individual experts can provide courts little if any assurance that they are able to provide even crudely reasonable (i.e. objective) estimates of likelihood that child sexual abuse has occurred or will occur, when they are confronted with the same set of ambiguities faced by the courts in these cases.
24.In Re W, the Full Court concluded its analysis of the relevant legal principles by remarking, at 79,218:
The lessons to be learned have not changed. The risk that the Court will find heinous behaviour where none has occurred needs be borne in mind at all times. The harm and injustice that flows to both parent and child from an erroneous positive is almost too horrible to contemplate.
25.As I have observed before, and with respect to the Full Court, one might as well say that the harm and injustice that flows to both parent and child from an erroneous negative finding is almost too horrible to contemplate, that harm including repeated sexual abuse of a child. Nevertheless, I am bound by the exposition of principle in the judgment.
26.In W v W (Abuse allegations; unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) examined principles relevant to child sexual abuse cases with particular emphasis on what is meant by unacceptable risk, the potential cessation of a significant or meaningful parent/child relationship and the appropriateness or otherwise of supervised contact. As a starting point the Full Court referred to the significant detrimental harm to a child who is sexually abused, noting (at 79,906) the discussion by Fogarty J in N and S and the Separate Representative (1996) FLC 92-655 where His Honour said, at 82,709:
The sexual abuse of a young child by a parent or care giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur. Regrettably, the actuality is otherwise.
It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long term, can be devastating.
27.The Full Court also had regard to Fogarty J’s acknowledgement of the potential for false allegations. Referring to Thomas J’s judgment in S v S [1993] NZFLR 657, Fogarty J said (at 82,711):
Courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception or information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.
28.After considering a number of decisions in which the concept of unacceptable risk was considered, the Full Court in W v W (Abuse allegations: unacceptable risk) concluded (at 79,910):
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognized the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty.
A court must assess and determine the relevant facts in issue and in the context of those facts and the non contentious relevant facts, the Court must then conclude whether abuse has or has not been established and/or whether an unacceptable risk of abuse exists into the future.
THE EVIDENCE
Police audio recording
On 24 June 2010 the police conducted an interview with the father in respect of the alleged abuse of the child. An audio recording of that interview was tendered in evidence.[6]
[6] Exhibit ICL 1.
That audio recording commenced with the police officer asserting that she believed the father had sexually abused the child. I raised with counsel and the parties how I should treat that expressed view. After submissions I adopted the approach that I should give it no weight and I gave it no weight.
In the recording the father confirmed that the child had difficulty ‘pooing’ and was ‘gummed up’ from time to time. The father said that the child was keen to spend time with him and was from time to time reluctant to go home.
When the child was last returned to the mother on 31 May 2010 the father said that he had informed the mother that the child had some eye problem but did not mention any difficulties with the child’s toileting.
During the interview the father said the examination that he and Ms R had undertaken of the child’s bottom occurred probably only a week or two before the second of June 2010. He said that he and Ms R were worried about the possibilities of worms and they looked at his bottom with a torch. There was no penetration.
The father was inconsistent with his evidence about the time of the examination. He later said the examination of the child had occurred on the Sunday night before the child was returned to the mother on the Monday 31 May 2010. This then accorded with the evidence of Ms R. It was concerning that on the evidence of the father and Ms R, the child had been complaining of a sore bottom to the extent that there was a physical examination of the child and the father did not mention it to the mother.
The mother
The mother gave evidence in terms of her affidavit filed 10 August 2011. In addition she provided oral evidence in chief.
The mother said that the Hobart Children’s Contact Service had informed her by letter that they were no longer able to offer the service in terms of time between the father and the child. This seems not to be a disputed fact. But this must be seen in the context of the mother’s unilateral move of the child and herself to the Central Coast of New South Wales.
The mother has sold her house in Hobart and disposed of her business. She is living with her mother and her mother’s husband in their Central Coast home.
The mother said she had hoped these proceedings would conclude in May 2011 but with the initial delay of the hearing followed by the disclosures by C and the difficulties that her present partner found in finding employment in Tasmania, she has now moved and lives with her mother and her mother’s husband, the child C, and the mother’s partner at her mother’s home.
The mother was cross-examined by the father about her views contained in two affidavits. In the mother’s affidavit sworn April 2007 which was provided to support the father in his family court proceedings with Ms L, the mother said:-
7.I absolutely support [the father] in attempting to spend time with his daughter. The court should have no concern as to [the father] being a danger to his children.
At paragraph 52 of her affidavit filed 10 August 2011 in these proceedings she said:-
15.After the outcome of the proceedings, I continued to remain vigilant because I was serious (sic) concerned about the risk to the children. However I still love [the father] and was pregnant with [the child]. I thought that if I tried hard to be a good and loving wife he would have no reason to do anything bad to any of his children into the future. He had portrayed [Ms L] in a very negative light and I did not know what to believe. I had tried to trust him and hoped that if he realised this he would be a good man.
The mother was asked to explain the different views contained in these two affidavits. The mother’s answer was that she wanted to believe the father but remained vigilant (she was in a relationship with him). The evidence was that she was hopeful yet cautious.
I am satisfied with that answer. The difference in the evidence does not undermine (in all of the circumstances) the overall veracity of the mother’s evidence.
The mother was cross-examined in relation to the cancelling the time between the father and the child in July 2011. She cancelled a visit on 2 and 16 July 2011, the first being because the child was unwell and the second being because the mother was unwell. She conceded that she refused a catch-up visit on 9 July 2011 and cancelled the visit on 30 July 2011 as she was travelling to Sydney for her birthday. That booking had been made on 20 June 2011 and the mother gave short notice to the father of the intended travel. I am further satisfied that the mother moved from Hobart to New South Wales without the consent of the father and without consent of this Court.
As I indicated elsewhere I am satisfied that in respect of the cancelled visits and the move to the Central Coast, the mother preferred her own needs to that of a relationship between the child and the father. However, this must be seen in the context of the mother’ genuine belief that the father had sexually abused the child.
The mother says that she entered into the arrangements for equal time in November 2009 as a consequence of pressure put on her by the father. I accept her evidence in that regard.
I am satisfied that the father was stressed, anxious and angry at the relationship break-up and was unwilling to accept its conclusion. The mother saw the equal time as being other than optimal for the child but less controversial than becoming involved in conflict and possible litigation, including litigation over property.
This very young child struggled with the changed parenting regime. He had difficulties passing stools regularly and withholding the passing of stools when he was with the father. The mother arranged to have him examined and she suggested the use of diet and laxatives for the child when he was in the care of the father.
In late 2009 or early 2010 the mother says, and I accept, that the child informed her that he did not like his paternal grandparents and that his grandfather ‘belted him’. The mother was given an explanation by the father that a ‘belt’ had been made for the child by his paternal grandfather. This evidence was supported by the child’s paternal grandmother.
The father was not frank in his evidence about the trips to northern Tasmania. The mother said the father had agreed not to take the child to northern Tasmania. The father initially said that there was no such agreement but then said that he agreed not to leave the child alone in the care of the grandfather.
Having regard to the comments I have made about the father’s evidence, I am satisfied that the mother’s version of that agreement is accurate.
The mother observed some other difficulties in the child’s behaviour in relation to biting the finger of the other child, becoming clingy and emotional, the pebbles and the costume incident in May 2010, expressions of dislike of the father and the sexualised use of a microphone.
I generally accept the mother’s recollection of those events.
On 31 May 2010 the child was returned to the mother with a sore bottom. The mother said, and I accept, that she observed that the child was distressed and exhibited a lot of pain. That pain was such that the child could barely sit down and needed a cushion. I accept the mother’s evidence of the events following that return and the child’s behaviour that the mother observed in the months to follow.
The mother was cross-examined as to why she was emailing the father and not talking to him. The mother’s response, which I accept, was that she was worried about the father’s threatening behaviour.
The mother gave evidence that the father had tried to or had endeavoured to smack the child’s hand when he was six months old while eating. The mother had a different approach to discipline (she does not believe in physical discipline) She and the father disagreed on that point but the mother said she did not observe the father smacking the child in her presence.
In his affidavits the father asserted that the mother was not a good mother following separation. This arose out of his jealousy with the mother’s new partner and the failure of their relationship.
The mother gave evidence of disclosures by the child subsequent to 31 May 2010.
The first of these was a few days before 17 June 2010 where the child said to the mother “daddy hurt my bottom”. The mother kept a record of these disclosures in accordance with advice given to her by the psychologist, Mr P. I am satisfied that whilst these recordings are coloured by her concerns and beliefs, her evidence is generally reliable and accurate.
The mother said that in about July 2010 her trailer was stolen. The trailer was in her possession when property orders were made in May 2010. The consequence of that was that the trailer became her sole property. The trailer was being used by the mother and her then partner and was parked in a car port at her home. Late one night the mother and her partner heard a noise outside and saw a young person with a hood going to a car and the car driving away with the trailer. It was not in issue that the trailer was taken by or for the father. There was an issue as to whether somebody else was involved. Irrespective of whether another person was involved it must have been a distressing and frightening event for the mother.
The mother was frank in giving her evidence and from time to time made admissions against her interests (such as the move from Tasmania to New South Wales and the cancellation of the contact visits).
The mother sought to rely upon a report of her local Central Coast doctor. The doctor did not file an affidavit and diagnosed the mother as having a reactive anxiety and depression. It was a short report, but in the circumstances I give it no weight.
As set out earlier, the mother believed that the father abused the child. However, the mother must understand that court orders are not voluntary. She is not entitled to adopt a disrespectful approach to court orders and consequently the well-being of the child. The Court does not and will not condone such action and the mother ought to reflect upon that behaviour in terms of her future conduct.
The comments about the mother’s failure to allow the child to spend time with the father in accordance with orders and the mother’s unilateral relocation to New South Wales (and I make these findings) are such that they will reflect and ought to reflect adversely upon her in terms of any further or other applications for contravention of court orders.
Mr T
Mr T is the mother’s partner and he gave evidence in accordance with his affidavit filed 10 August 2011.
The mother and Mr T had known each other as young people and commenced communicating on the internet in about August 2009 (shortly before the mother and father separated). Mr T at that time lived overseas but moved to Australia in December 2009 to be with the mother.
Mr T has three children from a previous relationship, a daughter aged 21, a son aged 17 and a daughter aged 15. They live overseas.
The father was angry about Mr T’s communication with the mother and made threats regarding self harm and more.
Mr T provided evidence supporting that of the mother in relation to the child’s behaviour including stool retention. His evidence at times involved some exaggeration. Mr T took the child to see Dr O and described an incident to the doctor where an instrument was inserted into the child’s rectum. That was not consistent with the evidence of Dr O. Mr T’s evidence is strongly identified with the mother and strongly identified in his support of her. His evidence needs to be treated with caution, and I have done so.
Mr T has found employment in Sydney and is able to provide financially for the mother and the broader family. Mr T is a local government administrator and earns about $70,000 per year although he is hoping to obtain greater remuneration into the future.
Mr T did confirm that the changeovers between the father and mother were tense. Mr T made himself present at those times to provide support for the mother.
Dr Z
Dr Z is a paediatrician who was appointed a single expert. Her terms of reference were to provide expert evidence in relation to whether the child’s retention of stools between December 2009 and June 2010 were more consistent with constipation or with sexual abuse.
Dr Z did not meet with the child. She read the material available in respect of the surrounding circumstances. Dr Z concluded that it was possible that the symptoms and signs of the child could be explained by the passage or attempted passage of a very large stool and in essence she could not either confirm or rule out the possibility of sexual abuse. Her evidence was that the physical condition exhibited by the child could be sexual abuse but was more likely to be the passing of a stool, particularly a hard stool.
Dr Z said:-[7]
[7] At page 3 of Annexure A of the affidavit of Dr Z filed 15 July 2011.
This inability to distinguish between the signs of constipation and signs of sexual abuse is why as paediatricians trained in the medical assessment of child sexual assault we strongly advocate for forensic interviews by someone experienced in interviewing young children as a disclosure of sexual abuse in such an interview is of high significance.
Her evidence neither confirmed nor excluded that the child was sexually abused by the father or some other person.
Dr W
Dr W is a specialist paediatrician who examined the child and prepared a report on the child on 17 June 2010.[8] Dr W observed that the child was normal. She also observed that there was significant marked faecal loading in an x-ray done in February 2010 and some faecal loading was reported in an x-ray of 17 June 2010.
[8] Exhibit ICL5.
Dr W said she could neither rule in nor rule out sexual abuse.
Ms S
Ms S is a psychologist who prepared a report for the mother which was attached to her affidavit filed 21 October 2010. That affidavit was read into evidence.
The evidence of Ms S report seemed at times to be somewhat partisan and at some levels she was an advocate for her patient. I give her evidence some weight but not significant weight. I accept that the mother showed symptoms of post traumatic stress disorder. I accept the evidence of Ms S that the mother’s mental and psychological health would be impaired or damaged by an order requiring her to live primarily in Tasmania.
The maternal grandmother
Mrs Zeehan is the child’s maternal grandmother. The maternal grandmother gave evidence in accordance with her affidavit filed 10 May 2011.
The maternal grandmother lives with her husband in the Central Coast, New South Wales. The maternal grandmother has visited her daughter regularly in Tasmania a number of times a year over the last few years.
She gave evidence, which I accept, of some unusual behaviour by the child with regard to placing pebbles in his costumes and wanting people to remove them.
The maternal grandmother says that she has a large house in the Central Coast with a self contained flat attached to it. That home is available to the mother and her family.
She has close relationships with her daughter and will provide emotional support to her daughter. She also assists with the care of the child.
I am satisfied she is supportive of the mother but that she endeavoured to be frank in her evidence.
The father
The father gave evidence in accordance with his affidavits filed 16 July 2010, 4 May 2011, 2 August 2011 and 28 September 2011. These affidavits were read into evidence.
In his affidavit filed 4 May 2011 the father asserted that the mother ‘stabbed me with a knife’.[9] Elsewhere in these reasons I have discussed the mother’s explanation as to this incident. The version set out by the father in his affidavit was a gross exaggeration.
[9] At paragraph 14.
The father asserted that the mother was prone to moments of violence and used an example of throwing a shoe at one of her children. I accept the mother’s evidence in that regard and this is another example of exaggeration by the father.
Similarly, the allegation of the mother violently shook the child (mildly shook the child). I have dealt with that elsewhere in these reasons. That was either concocted or an exaggeration.
When interviewed by the family consultant in late 2010 the father said:-[10]
[10] At paragraph 40 of the Family Report dated 12 November 2010.
… he felt like hitting them [[U] and [C]] at times but had not done so.
When pressed in cross-examination the father sought a certificate under s 128 of the Evidence Act1995 (Cth) (which was given) and conceded that he had physically hit each of the children with a ‘dead leg’ punch up to six occasions in respect of each child. This evidence must be seen in the context that the father had initially denied hitting these children.
There is a history of the father hiding information from the mother including his default on the housing loan and informing her about personal matters.
The father was cross-examined about the removal of the trailer. He called it ‘the recovery’. Yet he went to the mother’s home late at night and removed the trailer in circumstances where he knew she would not consent to that course. He denies anyone else was with him at the time.
The father initially said the trailer was taken on 30 May 2010 but later conceded that it must have been later.
The father from time to time resorted to saying he could not remember when challenged about things such as pushing or was asked difficult questions.
Having regard to comments I have made elsewhere I am satisfied that the father’s evidence is, from time to time, unreliable and that some of his evidence is self-serving.
The father asserted he was significantly involved in the care of the child prior to separation and then in cross-examination he conceded that the mother was a good mother and attended to most of the appointments. The father was less than frank to the mother in relation to taking the child to northern Tasmania. He made it clear to the mother that he would not be taking the child to visit his family and he did so in breach of that agreement, notwithstanding his cross-examination of the family consultant. I prefer the mother’s evidence in this regard.
I have doubts about the closeness which the father asserts he has to his parents. His mother did not know that he was proposing to relocate and had not seen him for some time.
The father was critical of the mother leaving him and observed at paragraph 32 of his affidavit[11] that the mother lost motivation to be a good parent. This must be seen in the context that the mother had parented a total of six children, all of whom have been very successful in life so far.
[11] Filed 4 May 2011.
The father accepted no responsibility for the relationship breakdown. From the evidence I accept that the father seemed at times to be more interested in his own emotional needs than those of the mother and the child.
The father says that he has ‘forgiven the mother’. His approach, including his questioning of the mother and her present partner, seemed to indicate that he has not resolved any anger and anxiety relating to the breakdown.
The father has exhibited threats of self-harm upon the breakdown of three relationships, particularly in relation to this one. He had seen Ms X on six occasions around late 2009, although I am concerned, having regard to all of the evidence, that he has not addressed the underlying health issues which gave rise to that behaviour.
The father had little concern for the emotional well-being of the mother when he removed the trailer from the mother’s home late at night and did not, afterwards, inform her that he had done so.
The father was insensitive to the impact of his behaviour on the family. When he left the home in November 2009 he removed the photograph from the wall and ripped it. He said he does not recall whether the children were present when he did this.
The father entirely blamed the mother for the breakdown of their marriage. This was in circumstances where the mother had asked him to engage in counselling the year before, and he had declined to do so. He criticised her parenting and told the mother he did not respect her.
The father now accepts that the mother’s concerns about the child being the subject of sexual abuse were not malicious but he views it as a likely misinterpretation.
In terms of earlier history, the father gave evidence that a year had passed after the report of Mr P before the discovery of the abuse of his then partner’s daughter and that too much water had passed under the bridge. However, on examination it was clear that Mr P’s report was made in June 2002 and the disclosure was made in October 2002.
During the later months of their relationship the father threatened suicide to the mother on a number of occasions. The mother sets these out at paragraphs 25 through to 31 of her affidavit.[12] I accept the accuracy of that material. The father wrote a suicide note.[13]
[12] Filed 10 August 2011.
[13] Exhibit M2.
The father has often expressed suicide ideations but has taken no steps to put it into effect. He was distraught and upset at the failure of his marriage to the mother and her friendship with her new partner.
The father had some limited counselling or therapy at around the time of separation and says that he has recovered his well-being. His present partner claims that she has not observed any suicidal ideation by the father since that time.
Dr O
Dr O is or was the child’s general practitioner. She commenced seeing the child in July 2008. Dr O prepared a report dated 20 July 2010 which was read into evidence without controversy.[14]
[14] Exhibit ICL6.
The mother saw Dr O on 6 May 2005 and expressed concerns about the child’s behaviour, saying and doing things sexually inappropriately. The examination at that time showed nothing abnormal and she referred the mother and child to a psychologist, Mr P.
On 1 June 2010 the mother came in with the child again. Elsewhere in these reasons I have detailed what was found which was inflammation and excoriation to the rectus and a midline tear. Dr O appropriately referred the matter to the child protection agency.
I accept Dr O’s evidence as being accurate. The report was prepared soon after the events and was not seriously challenged in cross-examination.
Dr O said that the child seemed to be very familiar with bottom examinations and in the circumstances of the child not having passed a motion whilst in the care of the father or since having been with the mother there was no ready explanation as to the midline tear which she observed.
She said that often those tears were associated with the passing of hard stools. Dr O said when she saw the child he could not even sit down. The child was in significant discomfort.
She observed that the redness was quite significant and would have been there for more than twenty four hours.
Ms M
Ms M was a counsellor and dealt with child sexual abuse. She was experienced in that area. At the time of this hearing Ms M was working in central Australia and gave evidence by telephone.
Ms M’s report dated 2 September 2010 was read into evidence and was confirmed by her.
Having considered all of the history provided by the mother (which history I generally accept, except to the extent of the child’s behaviour with the cat) she concluded that the child’s behaviour may be (emphasis added) consistent with a child who experienced sexual abuse.
Ms M fairly conceded, on cross-examination from the father, that it does not necessarily mean that the child was sexually abused.
Ms E
Ms E is a Clinical Team Manager at the Sexual Assault Support Service. She has worked as a sexual assault support counsellor since 2001 and was previously a counsellor in the Catholic Education System. Ms E has undertaken many specialist workshops. Her affidavit filed 5 May 2011 was read into evidence.
Ms E gave evidence because she was contacted by Ms L who made an appointment for her daughter A. The information was provided by Ms E at the request of A and with the consent of Ms L.
Ms E set out her involvement with A over many years. The child A had reported to her mother in 2000 that she had been sexually abused by the father. As a consequence A attended the Sexual Assault Support Service in 2002. The child A had again contacted the Service in 2007 and then again in April 2011.
The child A saw Ms E in 2011 as she believes that she was sexually abused by the father and was concerned that others had been sexually abused.
Ms E said in her affidavit:-[15]
[15] Filed 5 May 2011.
25.[A] has been consistent and persistent in his disclosure of sexual abuse. However, I was told by [Ms L] that [the father] had put an alternative view of what [A] had said happened to her. [Ms L] said that [A] used to have contact with her father whilst he was living with his former partner, … who had a daughter … who was a few years older that [A]. [The father] had said that […] was demonstrating sexualised behaviour and that […] may have told [A] a story and [A] had taken it on as her story.
The Independent Children’s Lawyer then carefully went through the evidence with Ms R and her examination (apparently on the weekend of 30 May 2010), she stated the child’s bottom as observed by the mother and Dr O, the observations as to the nature of the child’s stools at and around that time and the erratic behaviour and disclosures of the child since that time. In particular she referred me to the comments and evidence of Dr Z.
The Independent Children’s Lawyer concluded that on that basis I am entitled to reach a conclusion that as a consequence of that evidence it is possible that the child was sexually abused by the father and that as such, without making a formal positive finding, I should conclude that the child was at unacceptable risk in the unsupervised care of the father.
I accept and adopt the submissions of the Independent Children’s Lawyer in that regard.
The Independent Children’s Lawyer also carefully referred to the evidence in relation to the events surrounding the child A (much of this I have alluded to earlier in these reasons).
She raised concerns about the change of evidence of Mrs N in relation to the events which occurred in relation to H in that Mrs N said, when giving evidence, that it could have occurred earlier. This was in the circumstances where Mrs N had spoken with the father the night before although it was clear that she did not appear to understand the significance of those dates. The father likewise changed his evidence.
In terms of A there is the expression of the delay of the year, which the father first referred to, in terms of the time between the report of Mr P and the disclosures made by A. In fact, the disclosures were some three and a half months after the report.
The Independent Children’s Lawyer referred me to the evidence of Ms E in terms of the emotional content, the bear cards and false memory. I have had regard to those submissions and that evidence.
In relation to Mr P he observed the emotional content of the disclosures made by the child, I give that evidence some weight.
As I have indicated earlier, I am satisfied that A would have been at risk in the unsupervised care of the father and consequently there is a concern that the father may have used the three or four year old child for his sexual gratification, and that this evidence supports the mother’s assertion that the father is an ongoing risk to the child the subject of these proceedings.
In terms of C, the Independent Children’s Lawyer submitted there was concerns about the timing of her allegation and in particular it being just before the hearing date. There was also the contact between C and A.
However, the evidence from the family consultant, which I accept, is that C was not particularly aligned to the mother. I discussed this elsewhere and I am satisfied that whilst there is an alternate hypothesis it is possible that the father may have used C for his sexual gratification.
I generally accept and adopt the submissions of the Independent Children’s Lawyer in relation to C and therefore the ongoing risk in terms of the father and his contact with the child.
It was submitted, by the Independent Children’s Lawyer, that there are many evidentiary mysteries but notwithstanding those mysteries I am able to come to the conclusion that I have. In addition there is the issue as to whether the evidence about the events surrounding C and K may be of tendency in terms of the father.
The Independent Children’s Lawyer submitted that there was a substantial degree of similarity between the father’s alleged conduct to the girls and the allegations regarding the child, which were that each of the children were young, were pre-pubescent and two of the three children were about the same age. She went on to say that:-[30]
they were under his parental care and they allege to have been penetrated digitally or otherwise by him. And all three children, it is alleged there’s evidence before you, have said that there father hurt them or touched them in the genital region. They have all made that allegation.
[30] Transcript of Proceedings dated the 31 October 2011 at lines 26 to 29.
The Independent Children’s Lawyer submitted the evidence had significant probative value and asked whether there was a real possibility of concoction. She submitted that it had to be more than speculative chance and relied upon Porter J in Tasmania v McLean (2008) TASSC 57 at paragraph 46:-
46. In Tasmania v S [2004] TASSC 84, in a passage approved by the Full Court in L v Tasmania (2005) 16 Tas R 381, Underwood J (as he then was) said:
"12 Concoction includes not only cases where the complainants have possibly got together to concoct an account, but also those cases where one complainant has possibly concocted her evidence after becoming aware of the account of another complainant. See BRS v R[1997] HCA 47; (1997) 191 CLR 275 at 301; P v R[2002] TASSC 61. In Hickey v R (2002) 136 A Crim R 151, the Full Court of the Supreme Court of Western Australia, at 155, approved an earlier statement of the Court that the possibility of concoction must be understood '... as a reasonable possibility, based upon some factual foundation and not merely a fanciful possibility'. A little further on at 155, Templeman J referred to the earlier case (Hamilton) and said:
'The decision in Hamilton demonstrates that the mere fact that complainants know each other and have discussed the alleged offences, does not of itself render their evidence inadmissible if there is no other factual foundation upon which a reasonable possibility of concoction may be based.'
13 In R vRobertson (1997) 91 A Crim R 388, Ambrose J said at 409:
'In the majority judgment in Hoch at p297 it is observed that in some cases a judge who must rule upon admissibility of similar fact evidence might require an examination on voire dire to ascertain:
"the facts relevant to the circumstances of the witnesses to permit an assessment of the probative value of the evidence by reference to the consideration whether, in the light of common sense and experience, it is capable of reasonable explanation on the basis of concoction."
To my mind this language implies that the trial judge may use the same sort of commonsense and experience in determining that question as used in the practice reflected in Ananthanarayanan and Ryder. Stated shortly it is necessary for the trial judge to determine whether there is a real chance of concoction or contamination rather than a merely speculative chance. Similar facts could not be reasonably explained on the basis of concoction unless there was a real chance of it. To determine whether there is a real chance the trial judge must look at the facts of the case before him and determine what were the circumstances of the witnesses sought to be called to give similar fact evidence. Undoubtedly where such witnesses are in close relationship and there is both an opportunity and motivation to concoct and they give evidence of the same sorts of sexual behaviour on the part of an accused person, the determination of admissibility on the facts in Hoch and Youngson will perhaps be a compelling indication of the determination required'."
I accept and adopt that submission.
In all of the circumstances and in light of the finding of unacceptable risk I will make the orders as set out in these reasons. I have an obligation to protect this child from abuse which I have determined exists and is ongoing. Having made that determination it follows that the mother’s desire to live with the child in the New South Wales Central Coast area ought also to be permitted.
I certify that the preceding three hundred and sixty eight (368) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 16 December 2011.
Associate:
Date: 16 December 2011
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