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FAMILY LAW BRIEF
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Home Decisions Donella & Donella [2012] FamCA 159 - 1,543
Donella & Donella [2012] FamCA 159
Categories: Children
Judge Name: Forrest J
Hearing Date:
Decision Date:06/01/2012
Independent Children s Lawyer: Cathleen Corridon
Applicant: Ms Donella
Respondent: Mr Donella
Solicitor for the Applicant: Altavilla Vessali Barristers & Solicitors
Counsel for the Applicant: Ms Bonney of Counsel
Solicitor for the Respondent: C Kyriacou & Associates
Solicitor for the Independent Children s Lawyer: Cathleen Corridon Solicitor
Counsel for the Independent Children s Lawyer: Ms Wiener of Counsel
File Number: MLC 2881 of 2011
Jurisdiction: Family Court of Australia
Parental Responsibility Outcome: Not Relevant
Residential Outcome: Not Relevant
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IT IS ORDERED
That all previous parenting orders and injunctions are discharged and the mother and maternal grandmother are released from all undertakings previously given to the Court.
That the mother shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (as amended) ("the Act")) in respect of the children, save that the mother shall, prior to making the sole ultimate decision about any such issue:
Advise the father in writing of the decision intended to be made;
Seek the father's written response in relation thereto;
Consider, by reference to the best interests of the children, any such response prior to making any such decision;
Advise the father in writing as soon as reasonably practicable of her ultimate decision.
The children shall live with their mother.
Time with the Father
The father shall spend no time, nor communicate, with the children before Saturday 4 February, 2012.
As and from Saturday 4 February 2012 until Saturday 18 August 2012, time between the children and their father shall be supervised by a person agreed upon in writing by the father, the mother and the Independent Children's Lawyer and, failing such agreement, at W Contact Centre and shall occur as follows:
From Saturday 4 February 2012 until and including Saturday 3 March 2012, between 9.00 am and 11.00 am each Saturday (or such other 2 hour period each Saturday as agreed upon in writing by the father, the mother and the Independent Children's Lawyer);
From Saturday 17 March 2012 until and including Saturday 18 August 2012 between 9.00 am and 5.00 pm, or such lesser period of time between those hours as can be accommodated by the agreed supervisor or contact centre as the case may be, on the first, third and fifth Saturdays of each month.
As and from Saturday 1 September 2012, time between the children and their father may be unsupervised and shall occur at all such times as the mother and father may agree in writing and failing any such agreement:
From 9.00 am on Saturday until 5.00 pm on Sunday the next day on each alternate weekend until the start of the school year in 2013;
From 12 noon Christmas Eve until 12 noon Christmas Day in 2012
Thereafter:
From after school on the first Friday of the school term until before school the following Monday and then as such on each alternate weekend thereafter during school term with such time extending to before school Tuesday in the event that the Monday of any such weekend is a public holiday;
For the first half of each period of school holidays in 2013 and each alternate year thereafter and for the second half of each period of school holidays in 2014 and each alternate year thereafter but with the time the children spend with each parent between 12 noon Christmas Eve and 12 noon Boxing Day each year being determined pursuant to (iii) vi hereof;
On the children's birthdays for a period of three hours after school if on a school day and such that the children spend one half of the period between 9.00 am and 5.00 pm with each parent if the child's birthday falls on a weekend;
On the father's birthday for a period of three hours after school if on a school day and from 1.00 pm until 5.00 pm if on a weekend when they are otherwise with the mother pursuant to these orders;
On Father's Day from 9.00 am until 5.00 pm if on a weekend when they are otherwise with the mother pursuant to these orders;
From 12 noon Christmas Day until 12 noon Boxing Day in 2013 and between those hours on those days each alternate year thereafter and between 12 noon Christmas Eve and 12 noon Christmas Day in 2014 and each alternate year thereafter;
(iv)But should the children be with the father pursuant to these orders on the weekend that Mother's Day falls then they shall return to the mother's care at 9.00 am on Mother's Day and remain with her for the rest of that weekend and should the mother's birthday fall on a weekend when the children are otherwise with the father pursuant to these orders then they shall spend from 1.00 pm until 5.00 pm on that day in the mother's care.
7.From Saturday 1 September, 2012, the children's transition from the care of one parent to the other pursuant to these orders shall take place at a place or places to be agreed in writing between the mother, the father and the Independent Children's Lawyer before the ICL is discharged from this case or, in default of such agreement, as nominated in writing by the ICL before her discharge.
Therapeutic Assistance
8.The father shall complete the "Our Kids" Parenting Orders Program run by Centrecare, Melbourne and a Men's Behaviour Change Program run by the Men's Referral Service, Victoria by 31 August, 2012 and he shall provide written evidence of the completion of such programs to the mother and the ICL forthwith upon completion and to the extent that the providers of such programs require the input or participation of the mother, then she shall provide such input or participate as required.
Section 65L Supervision
9.Pursuant to Section 65L of the Family Law Act 1975:
a.Compliance by the parties with the provisions of these orders, as far as practicable, to be supervised by a Family Consultant of the Family Court of Australia Melbourne Registry as might be nominated by the Manager of Child Dispute Services, Family Court of Australia Melbourne Registry ;
The said Family Consultant shall give any party to these parenting orders such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, the parenting orders;
The parties shall do all such things, sign all such documents, attend all such appointments, and ensure the children attend all such appointments, as are reasonably necessary for the purposes of same.
As and from Saturday 4 February 2012 the father may communicate with the children at such times and via such means as the parties may in writing agree and failing agreement, the father may communicate with the children only by sending to them such cards and/or letters and/or photos as he may choose, but only via Australia Post sent to the residential address of the mother and the children.
As and from Saturday 1 September 2012, the father may communicate with the children at such times and via such means as the parties may in writing agree and failing agreement:
By e-mail, if practicable, but not earlier on any occasion than 8.00 am and not later on any occasion than 8.00 pm and not more than two per day;
By Skype, or other similar computer communication, if practicable, or by telephone twice in any week in which he does not spend time with the children and once in any week in which he spends time with them, but not earlier on any occasion than 8.00 am and not later on any occasion than 8.00 pm.
So as to give effect to paragraph 11 of these Orders, if the mother has a home computer available for use by the children by that time, she shall, by not later than 4.00 pm on 31 August 2012, provide to the father an e-mail address for the children and have installed such software as will allow email and Skype communication between the father and the children;
Specific Issues
The mother shall:
Advise the father and keep him advised of the children's residential address, school, usual treating general practitioner, any specialist medical practitioner and any counsellor or therapist upon whom they attend;
Do all such things and sign all such documents as might be required so as to advise any and all of the persons or school referred to in paragraph 13a above of these orders and to authorise them so as to facilitate the father receiving any and all such information (including written reports provided in the usual course by any such person) relating to the children's progress, health, treatment or course of counselling or therapy as the case may be SAVE THAT nothing in this order shall be construed so as to require the mother to authorise the provision of any information which, in the written professional opinion of any doctor, counsellor or therapist is contrary to the best interests of the children or any one of them;
Notify the father as soon as reasonably practicable of any significant injury or serious illness suffered by any of the children and, in any event, any injury or illness which requires specialist medical treatment or admission to hospital.
That both the mother and the father are restrained from discussing, raising or talking to the children in any way about the sexual abuse allegations that were the subject of these proceedings and from allowing the children to be within hearing of any other person who discusses or talks about them.
That both the mother and the father are restrained from denigrating, criticising or belittling in any way the other parent or any member of the other parent's family to or in within the hearing of any of the children and from allowing the children to be within hearing of any other person who does so.
That the parties use a communication book to inform each other of matters pertaining to the welfare of the children and the communication book shall accompany the children as they transition between the parents, the mother to provide such books as and when one is required, save for if such book is lost or misplaced when the children are in the care of the father, in which case, the father will replace it.
Pursuant to s 121(9)(g) of the Act, the mother or the Independent Children's Lawyer is authorised to publish an account of these proceedings, namely these Orders and the Reasons for Judgment delivered herewith, to:
Mr H;
Mr M;
The father's mother and father, sisters and brother;
The mother's mother and father;
The Manager, Child Dispute Services, of the Melbourne Registry of this Court or any family consultant nominated by him;
Any of the persons or school referred to in paragraph 13a of these Orders;
The Victorian Department of Human Services, Victoria Police, the Children's Protection Society (Victoria) or any person or organisation of a similar type charged with responsibility for the investigation of complaints of child abuse;
Any supervisor or contact centre charged with the responsibility of supervising time pursuant to these Orders;
The providers of the Parenting Orders Program and the Men's Behavioural Change program that the father participates in pursuant to paragraph 8 of these Orders.
AND IT IS FURTHER ORDERED THAT
The Independent Children's Lawyer is discharged on 30 September, 2012.
All extant applications are otherwise dismissed and removed from the list of cases awaiting finalisation.
Following the expiration of the Appeal period, all subpoenaed documents 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.
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.
The mother and the father shall pay, in equal shares, the independent social worker's reasonable fees for his attendance at the Court during the course of the hearing of this matter for the purposes of his cross-examination.
The mother and the father shall pay, in equal shares, the professional fees and outlays incurred by the ICL in this matter as paid by Victoria Legal Aid to date and as may be paid by Victoria Legal Aid to the point of discharge of the ICL pursuant to these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Donella & Donella is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
1.Mr Donella and Ms Donella married in early 2005 after forming their relationship the year before. They separated, just six years later, in March, 2011. They have three children, B, who is six years old, J, who is five years old, and N, who is three years old.
The last year or so of their marriage was not a happy time for the couple. Their separation was not an amicable one. In the eight months since then, the couple have remained in high conflict, particularly in their parenting of their three little boys. Their conflict brought them into contact with the courts immediately upon separation. An order was made in the Magistrates' Court pursuant to the Victorian domestic violence legislation and child-related proceedings were immediately commenced in the Federal Magistrates Court.
After a couple of early hearings in the Federal Magistrates Court, the proceedings were transferred to this Court and managed, thereafter, as a Magellan matter. There has been a lot of external forensic and therapeutic involvement in the lives of the members of this family in the last two years, particularly so in the months since separation. Very few families that come before this Court have as much forensic effort directed at them in such a short space of time as this family has. Sadly, it has not resulted in an abatement of the parental conflict.
The Central Issue – Sexual Abuse Allegations
At the heart of the current parenting dispute lie allegations made by the father andother members of his family of origin that B and J and possibly N were sexually and physically abused by their maternal grandfather whilst in the mother's care and living with her at the home of the maternal grandparents in the week between 13 and 20 April, 2011. Critically, the father asserts the mother was involved in the alleged sexual abuse. It is said that, at least on one occasion, if not more, she was in bed with B when the maternal grandfather sexually abused him, that she acquiesced in the abuse of her child, B, by her father, and that she engaged in sexual activity with her father at the same time, either as a willing participant or under his coercion, and that, either way, she is now lying when she denies that such abuse occurred.
It is also asserted by the father that the mother and her elder sister were both sexually abused by their father as they were growing up. The father asserts that the mother had told him and his parents of her father's abuse of her and that her denial of that abuse now is a deliberate lie.
Further, it is said that the mother and the maternal grandparents are all conspiratorially covering up the abuse of the mother by her father and the abuse of the boys by their grandfather. It is said that they are coaching and coaxing the boys to falsely deny to investigators that abuse occurred. At the same time, the mother is said to be deliberately involving B in behaviour intended to taunt and emotionally torment the father by having him believe that sexual abuse is still occurring to the boys when in her care.
The father and the other members of his family of origin assert that the mother has a history of mental health problems. It is alleged these problems manifested themselves in chronic compulsive lying, depressed mood and suicidal ideation. There is no dispute that the mother began to receive psychotherapy in mid-2010. The father asserts that the mother's involvement in the sexual abuse of the boys, her current denials of the sexual abuse and her conspiratorial conduct in covering up the abuse are symptoms of her serious mental health problems.
It is difficult to imagine any more serious allegations being made against the mother and her parents, yet the proceedings involve additional complexity. The mother suffers from Multiple Sclerosis and has suffered it since 2004, shortly after she commenced the relationship with the father. The father alleges that prior to separation the mother could not care for herself because of the MS. He asserts that he cared for her throughout the marriage. He asserts, as a consequence of the effects of the mother's illness, that he principally cared for the three little boys during the marriage, right up to the point of separation.
The Mother's Response
The mother denies that shewas ever sexually abused by her father. She denies that the boys were sexually abused by her father. Her father denies ever sexually abusing her or his eldest daughter. He denies sexually abusing his grandsons. The mother and both her parents deny they are now conspiratorially covering up sexual abuse. The mother also denies that her illness, MS, currently prevents, or ever prevented, her from providing primary parental care to the boys. She asserts, despite having the illness, she was, during the marriage, the parent who provided the principal amount of day to day care for the three boys.
The mother asserts that the father was a controlling, domineering, possessive, verbally abusive husband, particularly during the latter years of their marriage. She asserts that the allegations he makes of sexual abuse and conspiratorial cover-up are symptomatic of his poor attitude to her and her parents and their roles in the lives of the three boys. She asserts that they are made, simply to achieve an outcome in the parenting dispute, without any regard for reality. She asserts that, similarly, the father's allegations about the impact of her MS upon her parenting capacities are made up by him, taking advantage of the fact that she does have MS, to assist his case for orders that the boys live with him.
The Parties' Proposals at the Start of the Hearing
Before the case commenced, the mother asked the Court to make orders conferring sole parental responsibility on her, and providing for the three boys to live with her and to spend time with their father from 9:00 am Saturday until 5:00 pm Sunday on alternate weekends until the youngest boy started school and for longer periods during school holidays.
That position, in respect of the division of care of the children between the parents, was not very different to that adopted by the Independent Children's Lawyer at the start of the hearing. However, the ICL was, at that time, indicating a preliminary preference for an order for "joint parental responsibility".
The father's position, at the commencement of the hearing, was that the Court should make orders conferring "joint parental responsibility" on both the parents but providing for the boys to live with him and to spend time with their mother each alternate week from after school on Friday to before school the following Wednesday. He also proposed the children spending time with the mother for half of the school holidays, including for periods of two weeks at a time during the long Summer holidays. He sought an order restraining the maternal grandfather from being present with the children when they were spending time with the mother. He also sought an order that the mother get therapeutic assistance for her "compulsive lying".
Concerns about the Father's Position at the Start of the Hearing
The father's positionat the start of the hearing, in respect of the orders he was asking the Court to make, seemed, at least in my view, having regard to the best interests of the children being the paramount consideration, to be rather incongruent with him believing in the two central features of his case, namely the sexual abuse allegations and the allegations as to the mother's incapacity to care for herself and the children due to her MS.
Part way through the hearing, I raised this observation with counsel for the father. I also raised it directly with the father whilst he was in the witness box during his two days of cross-examination. He said to me, at that point, that if I accepted all of the allegations he was making against the mother, as he was asking me to do, the boys should only spend supervised time with her, if any at all.
Relevant to that, the independent social worker who prepared a family report in the matter as recently as 10 November, 2011, reported that at the time he interviewed him the father was proposing that the mother spend supervised time with the children for four hours each alternate Saturday at a centre that facilitates such visits. He went on to report that the father said he would be willing to consider the children spending each alternate weekend with the mother if she received "help" but that the father was "unable to specify what this would require. When asked about that in the witness box, the father said the "help" he meant was "psychological help".
During the hearing, I also raised with the independent social worker, when he was in the witness box, the issue of whether the best interests of the children would be met by them spending any time at all with the mother if the allegations made by the father and his family of origin were accepted as true. He quickly proffered the opinion that it would not be in the children's best interests for them to spend any time with the mother in those circumstances. He also accepted the proposition that for anyone to consider otherwise would be rather strange.
The Parties' Positions at the End of the Hearing
Remarkably, having regard to the matters just referred to, at the end of the hearing, I was informed by counsel for the father that the orders proposed by the father were still those set out in the Outline of Case document filed on his behalf on 25 November, 2011. As already pointed out, those provided for the children to spend each alternate weekend from after school Friday to before school Wednesday with the mother, completely unsupervised. They provided for an order restraining the maternal grandfather from being present with the children during that time and orders that the mother continue to have personal counselling and also have "psychiatric or other counselling to treat her compulsive lying".
At that same time though, forboth the ICL and the mother, it was submitted that sole parental responsibility should be conferred upon the mother, and that orders should be made providing for the children to live with the mother and to spend only supervised time with the father at a centre facilitating same, with there to be no restriction on the maternal grandfather spending time in the company of the children.
Counsel for the ICL and the mother both effectively submitted that I would be satisfied, considering all of the evidence in the case, that the maternal grandfather has not sexually abused the children, that the mother was not involved in any sexual abuse of the children, that there was no conspiratorial cover-up of sexual abuse by the mother and the maternal grandparents, that the mother does not have any mental health disorder, that the mother's MS has not prevented her from being the principal carer for the three boys since they were born and that it does not impede her current capacity to properly care for the boys. I accept all of those submissions. I am satisfied of each of those things.
The submissions of counsel for the ICL and the mother that the boys' time with their father should be supervised at a Centre facilitating same, were based on submissions by both of them, as I understood them, that I would be satisfied that if the children were to spend unsupervised time with him they would be subject to emotional abuse because of his inability to shield them from his belief, and the beliefs of other members of his family, that they had been sexually abused and continued to be at high risk of ongoing sexual abuse. I am satisfied that is correct, at least in the short term.
Having accepted those submissions and arrived at those conclusions, I determined to make orders to give the boys some respite from the spectre of sexual abuse continuing to pervade their lives, some immediate respite from the turmoil that they have been experiencing in the last few years, more particularly the last eight months, some stability in their day to day lives, including as to their living and care arrangements, and some opportunity for them to continue meaningful relationships with their father and their extended paternal family once their father has had appropriate therapeutic assistance so that he can again spend time with his three boys in a manner that advances their safe and secure emotional development.
I determined that is was necessary to make those orders straight away and I did that on Wednesday 7 December, 2011. I made all of the orders set out at the commencement of this judgment on that day and I informed all of the parties that my reasons would follow in due course. These are my reasons for those orders I made.
The Legal Principles to be Applied in the Determination of this Case
As already mentioned, when the Court is determining the parenting orders to make in this case the best interests of the three children must be regarded as the paramount consideration.
In determining what orders will meet the best interests of the children, consideration must be given to expressly listed "primary" and "additional" considerations, in addition to some other matters expressly set out in the legislation. The process of determination is wide-ranging. That is made clear by inclusion in the list of "additional" matters to be considered "any other fact or circumstance that the Court thinks is relevant".
Wide-ranging though it is, the process of determination must nevertheless be performed within the constraints of the statutory framework of Part VII of the Family Law Act. That Part begins with a statement of the objects of the Part and the principles underlying those objects. I have said before that I consider it important to set those out in a case where allegations of sexual abuse of a child by a parent are the central focus of the factual enquiry at the heart of the overall determination of what parenting orders are in the best interests of the child. I set them out now. They are to be kept in mind throughout the process of determination.
S 60B (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).
Expressly referred to as 'primary' amongst the considerations the Court must consider in determining what is in a child's best interests are two matters. They are:
the benefit to the child of having a meaningful relationship with both of the child's parents; and
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In the FLA, it is said that making these considerations the primary ones is consistent with the objects of Part VII listed above – that is, at least those two objects set out in s.60B(1)(a) and (b).
In any parenting case, the two "primary" considerations are to "be accorded particular importance in determining what order will best promote the interests of the child". I consider that is the legislative demand as they are separately listed and described as "primary considerations" in the FLA. In a parenting case where allegations of abuse, sexual or otherwise, of a child or children by a parent, or someone associated with a parent, are made, the two "primary" considerations and their interplay take on critical importance.
On the one hand, consideration of the benefit to the child of having a meaningful relationship with both parents is given particular importance. On the other hand, consideration of the need to protect the child from being subjected to, or exposed to, abuse is, clearly, given equal importance.
There is no doubt that sexual abuse of children is abhorrent. As Fogarty J, sitting in the Full Court, in 1996 said:
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.
That statement remains true. Abuse of children of any kind is abhorrent. Physical abuse and psychological abuse of children is equally intolerable. Where any form of abuse, be it sexual, physical or psychological, is found to have occurred or to be occurring, then the weight to be given to the need to protect a child or children from that abuse must, necessarily, be greater than the weight given to the benefit to the child or children of having a meaningful relationship with the parent who is the abuser or who is allowing such abuse.
Of course, not all allegations of sexual abuse are well-founded. In the same decision cited above, Fogarty J went on to say:
[C]ourts 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 of 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.
False allegations once made can, depending upon the extent to which the child or children become embroiled in the making of them, lead to ongoing psychological abuse of the child or children. If a parent believes, wrongly, that their child has been sexually abused by the other parent or that the other parent has acquiesced in such sexual abuse, that parent's parenting of the child can become psychologically abusive. Children must be protected against the harm they suffer from such psychological abuse in the same way that they must be protected against the harm they suffer from sexual and physical abuse.
Guidance as to how allegations of sexual abuse are to be considered and resolved in parenting cases, where the best interests of the child is the paramount consideration, was given by the High Court in M v M in 1988 and by the Full Court of this Court in a number of subsequent cases. Section 140 of the Evidence Act 1995 is also directly applicable, as are the matters mentioned in the very old High Court decision of Briginshaw.
The Court should not make a positive finding that an allegation of sexual abuse is true unless it is satisfied on the balance of probabilities that the allegation has been proved, regard being had at the same time to the seriousness of the allegations, the inherent likelihood of that which has been alleged actually occurring, and the gravity of the consequences flowing from a particular finding.
The inability to make a positive finding that an allegation of sexual abuse is true is not the end of the process of determination. Should the Court be unable to make a positive finding that an allegation of sexual abuse is true, but nevertheless at the same time be satisfied that parenting orders for a child or children to live with a particular parent, or to spend time with a particular parent, would expose the child to an unacceptable risk of sexual abuse, such parenting orders should not be made.
Of course, as the High Court recognised in M v M, just as there will be some cases in which the Court is able to come to a positive finding that the allegations of sexual abuse are well-founded, so, too, will there be cases in which the Court has no hesitation in rejecting the allegations as groundless. What must then follow, of course, in such cases, will be consideration of the matters and issues raised by such rejection of the allegations, particularly as to whether any psychological abuse of the children is occurring, or could occur, as a consequence. Clearly, if the Court is then satisfied that there is an unacceptable risk of psychological harm to the child or children if particular parenting orders are made in favour of the parent who has made the allegations that have been rejected, those particular orders must not be made, but rather orders made that will balance the need for protecting the child or children from such harm with the need for them to have a meaningful relationship with that parent.
Although generally in cases where sexual abuse allegations are made, the consideration and determination of the allegations of sexual abuse will be at the heart of the process of determining parenting orders that will best protect and promote the interests of the child or children, all of the considerations listed in s.60CC must nevertheless still be considered by the Court as part of the process.
There are still a number of steps that are actually required by the FLA to be undertaken in the process. The Court must:
apply the presumption of equal shared parental responsibility
determine whether there is abuse of a child or family violence, which means that the presumption does not apply
determine whether the presumption is rebutted by evidence that it is not in the child's best interests for there to be equal shared parental responsibility
if the presumption applies:
determine whether it is in the child's best interests for there to be an order for equal time with each parent
make findings as to the matters set out in section 65DAA(5) going to the reasonable practicability of a child spending equal time, or substantial and significant time, with each of the child's parents, having regard to:
how far apart the parents live from each other; and
the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
the impact that an arrangement of that kind would have on the child; and
such other matters as the court considers relevant.
as a result of this enquiry, make findings as to whether an "equal time" order is reasonably practicable
if an equal time order is not reasonably practicable, carry out the same process in respect of a "substantial and significant time" order
if there is no equal time or substantial and significant time order, proceed to determine what orders are in a child's best interests.
The matters that must be considered pursuant to s.60CC in determining what is in a child's best interests must be considered all along that statutory path.
Some Further Relevant Background
The father asserted in his evidence that the mother was estranged from her parents when he started going out with her in 2004. He made this assertion in conjunction with the assertions that the mother generally had a poor relationship with her parents throughout the period of the marriage and that she had been sexually abused by her father as a child. The inference I consider he was wanting the Court to draw from his evidence was that there was a direct causal link between the mother's alleged poor relationship with her parents and the alleged fact that she had been sexually abused by her father as she was growing up.
The mother denied that she was estranged from her parents when she started going out with the husband. She said she was still living at home with her parents at that time, evidencing a good relationship with them. Her parents said the same thing. The father gave no evidence as to where the mother was otherwise living, if she was not living at home. The evidence fell short of convincing me that the mother was estranged from her parents when she and the father started going out and I do not accept that she was.
However, the evidence does establish that the relationship between the mother and the father, as a couple, and the maternal grandparents, as a couple, certainly deteriorated over the years of the marriage, most particularly, I accept, from 2009 on. The father would have me accept that it deteriorated particularly from that time because it was sometime in that year that the mother told him that her father had sexually abused her as a little girl. He wants me to accept, I find, that this particularly turned him against his father-in-law, as it naturally might, if it were true.
The mother's case was that the father's controlling and abusive personality and the way that he treated her and their boys was what brought him into conflict with her parents as time went on. I accept that the mother's own relationship with her parents began to suffer as a consequence of that conflict. She maintained that she was not permitted to pursue an ongoing relationship with them in any meaningful way and that she had to resort to calling her parents at times so that the father did not know that she was doing it. She asserted that she had to keep such contact with them secret from the father and, on occasions, she had to lie to him about that to protect herself from the anger he would subject her to if he found out.
Early in the marriage, at around the time that the mother and father were first living together, the father and the mother's sister, Ms L, argued fiercely. The father told Ms L that he did not accept anyone talking to him like that in his home. It was shortly after this argument that Ms L first experienced a psychotic episode, said by the mother and maternal grandparents to have been related to her long-term use of illicit drugs, particularly marijuana, as a teenager and young adult. It was shortly after this argument, whilst arguing further with her mother, that Ms L is said to have first disclosed to her mother that her father had done something sexually inappropriate to her when she was a child. Ms L, soon thereafter, saw a family therapist with whom her parents had been having family therapy. They had been having therapy as a result of the revelation of the maternal grandfather having an extra-marital relationship with a female work colleague over four years in the late 1990's.
In a session of family therapy involving Ms L and the maternal grandfather, Ms L is said by the maternal grandparents to have disclosed that when she was six years of age, she was travelling in the family car with her father, when her father, at some traffic lights, touched himself on the penis in a way that Ms L considered inappropriate. Shortly after that disclosure, Ms L is said to have lapsed into psychosis for which she was treated at home for a while by a community based psychiatric service before being admitted to hospital. She is said to have had several psychotic episodes requiring hospitalisation over the years since then.
The father was aware of Ms L's psychosis and was involved in the decision to call in a psychiatric response team for her. He asserted in his affidavit that Ms L had herself told him that she had been sexually abused by her father as a teenager. In his affidavit, he put the timing of that disclosure to him as sometime around the middle of 2009. In the witness box though, he asserted that Ms L had informed him, on several occasions subsequent to that first episode of psychosis, that her father had masturbated in front of her in the car when she was young. He asserted that she told him it was when she was 13 years of age and that she told him that the maternal grandfather had done other things to her but that she would never tell him what they were.
I accept that the father learned of Ms L's disclosure about her father. He could have learned that either from Ms L directly or as a result of the manner in which Ms L's disclosure was first made and his involvement in the response to her subsequent psychotic episode. I do not accept that Ms L told the father that her father had abused her in other ways. I consider that if Ms L had been prepared to tell the father, several times over the years, that her father had masturbated in front of her as a 13 year old that she probably would have disclosed the particular detail of other abuse if it had happened. I reject the father's evidence that she told him repeatedly that there was other abuse and that she simply refused, always, to disclose any further detail about it.
Ms L is now in her mid 30's, is married and apparently continues to struggle with mental illness. The mother and her parents asserted that Ms L is currently stable on medication and they do have continuing relationships with her. The maternal grandfather, credibly in my view, maintained no knowledge of ever having done anything like Ms L alleged, and denied any sexual abuse of her. He frankly acknowledged that his relationship with her had been fairly volatile since she was a rebellious teenager in her late teens. He said that he and Ms L do still see each other and recently had coffee together. I got the impression that the grandfather was seriously intent on having a good relationship with Ms L. The maternal grandmother, who had clearly given Ms L's disclosure a lot of consideration over the years, did not believe that her husband had done anything sexually inappropriate to Ms L or in Ms L's presence.
I found no reason to reject the grandfather's evidence or the evidence of the grandmother. I find that they honestly considered that Ms L's disclosure was somehow linked with her psychosis.
I accept that the relationship between the father and the maternal grandparents was never a very good one. I accept that they clashed increasingly over the years and, consequently, it became more and more difficult for the mother, whilst remaining married to the father, to maintain good relations with her parents. I conclude that as relations deteriorated, the father has attributed credibility to Ms L's disclosure, more than he did when he first learned of it. There is no evidence that persuades me that the father acted consistently with belief in the truth of Ms L's disclosure from the moment he first learned of it.
Ms L was not a witness in the proceedings before me. She provided no affidavit nor was she called by either the mother or the father. I draw no inferences adverse to either party's case because of that. I make no finding that the maternal grandfather sexually abused his daughter, Ms L, as a child or as a young teenager or at any time.
The father's evidence was that sometime in 2009 the mother had disclosed to him that the maternal grandfather had sexually abused her as a child. He was not more specific about the timing of that first alleged disclosure, save for thinking it might have been "late 2009". He gave no specific detail of the alleged disclosure by the mother in his affidavit evidence. In the witness box, during the hearing, he said that the mother had told him that she remembered her father coming into her bedroom when she was six years old and that he had been naked and had "touched her all over". He said that she told him she could not remember any more than that. He said that he considered she was conveying to him the message that the maternal grandfather had touched her in a sexual manner, including touching her genitals.
It is common ground that in or around September, 2009, the maternal grandfather was at the home of the mother and the father and that the father and the maternal grandfather had a serious argument. In his affidavit evidence, the grandfather asserted that the father had become extremely angry and had begun to use abusive and vulgar language in the presence of the children. The grandfather asserted that when he asked him to stop using such bad language in front of the children that the father became angrier and more aggressive towards him. The grandfather said he walked out of the home and, that as he did, the father said to him that he would never see his grandchildren again and that the only way he would come back into the house was if he crawled on his knees.
In his affidavit, in response to that evidence, the father said that the mother had threatened to kill herself at this time and that he was talking with the maternal grandfather about this, seeking to enlist his assistance in getting help for the mother. He said the argument began because the maternal grandfather refused to believe that the mother needed any such help. He asserts that the boys were not present as he had previously deliberately taken them to his parents' home so that they would not be around when the matter was discussed. He would, as I understand his evidence, also have me accept that it was probably before this argument that the mother had told him that she had been sexually abused by her own father as a child and that his feelings of revulsion about this had also fuelled the argument with the grandfather.
I do not accept all of the father's evidence on this matter. Other evidence supports findings that the mother began to obtain treatment for depression in and around June of 2010. In the evidence about that mid-2010 treatment, there are references to her alleged suicidal ideation at that time but no other evidence corroborative of the father's assertion that she had been expressing any such suicidal thoughts as far back as September 2009. The father gave no evidence that he had tried to get the mother into treatment, concerned about her mental health, in September, 2009. If the evidence he gave was true, I consider that he probably would have made some effort to get her into treatment then, in September, 2009, particularly if, as he says, he was getting no support from the mother's parents and having regard to the evidence about his previous involvement in Ms L's psychiatric care several years before. Furthermore, if the father believed in September, 2009, that the mother had been sexually abused by her own father as a child he would probably not have sought to enlist her father's support in getting help for the mother at that time. In addition, there is no evidence that when the argument escalated the father confronted the maternal grandfather with an allegation that he had sexually abused both of his daughters as he probably would have done, if aware of it at that time, given the level of his anger that the evidence establishes.
The father says that as the argument ended and the grandfather left the home the grandfather said to the father, referring to the mother, "she is your fucking problem now". The maternal grandfather quite candidly accepted that he had said something like that and expressed his sorrow and remorse for having said that at that time. It appears common ground that the maternal grandparents only went to the home of the father and the mother again on three or four occasions after that prior to their separation. The maternal grandfather gave evidence that he did send text messages to the father on two occasions subsequent to the argument, seeking to meet with him to try to resolve their conflict, but that his overtures were refused.
The evidence establishes that soon after that argument between the father and the maternal grandfather an extraordinarily troubling thing happened. The maternal grandmother has, for many years, owned and operated, a dress making business. That business had made the mother's bridal gown that she wore at her wedding to the father. The gown was apparently in storage at the business premises. The mother's evidence, which went unchallenged, was that the father arranged for the dress to be couriered to their home for the express purpose of destroying it. She said that prior to its arrival at their home, the paternal grandfather told her that if the father wanted to cut up the dress then she should let him as it would make the father feel better. The mother's unchallenged evidence was that once it arrived, the father and his parents all took part in cutting the gown up into small pieces. The mother said they forced her to participate in that. The pieces were then packaged up and sent back to the maternal grandmother at her business premises. I accept the tenor of that evidence. It is very disturbing evidence. I consider that it tends to support the mother's evidence that the father had a personality that was controlling and abusive of her. It supports a view of the father and his parents that they lack a good degree of self control and it calls into serious question important aspects of their judgment.
The evidence supports a finding that the mother then had only limited communication with her parents, much of which was apparently kept secret by her, she thought, from the father. The maternal grandparents then got to see the mother, the father and the grandchildren briefly at Christmas 2009 and again on the youngest boy's second birthday in July, 2010. That was the last time they saw them prior to the separation of the mother and the father some nine months later.
In or around February, 2010, it is said by the father and the paternal grandfather that the paternal grandparents had become aware of the allegation that the maternal grandfather had sexually abused the mother. Indeed, the paternal grandfather's affidavit evidence is that the mother told him and his wife that both she and her sister had been sexually abused by their father and that she herself had actually fallen pregnant to her own father and had the pregnancy terminated. The paternal grandfather said the mother told them "in confidence" and that they had not even reported that to the father until recently. The grandfather does not say when that was told to him and his wife by the mother or why, particularly, he felt bound to respect the mother's 'confidence' in all the circumstances, including the mother's perceived mental health problems, until only recently. Interestingly, the paternal grandmother did not give evidence in the case.
The mother denied ever having told the paternal grandparents that she and her sister had been sexually abused by their father and that she had fallen pregnant to her father. She appeared quite credibly shocked and distressed by that allegation. She said, without reference to timing, that the paternal grandfather told her that he was going to take her confession so that her spirit would be cleansed. She said he told her something private and personal about himself and encouraged her to do the same. She said he would not let her go unless she told him something, so she told him that she had fallen pregnant to the father, his son, before they married and had that pregnancy terminated. I accept her evidence on that matter. In cross-examination the paternal grandfather denied the mother's assertions in that regard. I do not accept his denial.
The evidence establishes that in or around February, 2010, the mother in the presence of the father and the paternal grandfather, telephoned her own mother and spoke to her in such a way that the maternal grandmother could be heard on a loudspeaker at the mother's end by the father and the paternal grandfather. The mother's evidence is that, under pressure from her husband and father-in-law, she asked the maternal grandmother to come around to speak to them so that the paternal grandfather could apologise to her for something rude he had said about her and the other women in the mother's family. That was said by the mother just to be a pretext to get her mother there so that the mother could, on the insistence of the father and her father-in-law, disclose to her own mother that the maternal grandfather had sexually abused her as a child. The mother says she was distressed and crying during this call because she was being forced by her husband and father-in-law to say that she had been sexually abused by her father. When the maternal grandmother refused to come over, the mother concedes she said to her "what if I said dad did something to me?" She said when her mother asked her what it was that he had done she simply said "I don't really remember" to which her mother said "in that case there is nothing to say."
The father's evidence is simply that the mother told her mother during that phone call that the maternal grandfather "had abused her". The paternal grandfather makes no reference to the call at all in his affidavit. The maternal grandmother's evidence was corroborative of the mother's evidence. The mother actually did not accept at any point in her evidence that she had ever told her husband that her father had sexually abused her. There is evidence (which I shall return to) that establishes though that she did, at some point during the latter years of the marriage, seemingly affirm the father's assertion, put to her, that her father must have sexually abused her. However, I am not satisfied that the wife ever positively told the father that her father had sexually abused her and I am satisfied that her father had not sexually abused her.
I consider that if the paternal grandfather was aware at the time of the pretext call to the maternal grandmother that the mother had fallen pregnant to the maternal grandfather as a young woman as a consequence of his sexual abuse of her, he would probably have conveyed that to his son and to the maternal grandmother at that point in time. I do not accept the paternal grandfather's evidence that the mother told him and the paternal grandmother that she had fallen pregnant to her own father. I do not accept that if she had told them that that they would have kept it to themselves for a long time, not revealing it to their son until only very recently.
The paternal grandmother sat in the back of the Court during the first day of the hearing. She was clearly available to give evidence for the father. The absence of evidence from her, particularly as to the alleged disclosure to her by the mother of having fallen pregnant to her father, was not explained. I infer from the absence of evidence from her, without any explanation for such absence, that evidence from her would not have assisted the father's case. If she had been told by the mother that the mother had fallen pregnant to her own father and terminated that pregnancy, I would expect evidence as significant as that to have been put before the Court by her.
I do not accept the father's evidence that the mother told her own mother on that pretext phone call that her father had abused her. I do not accept that the mother had actually disclosed to the father in 2009 that her father had sexually abused her. As I have already said, I do not consider that he would have had the maternal grandfather to his home in September, 2009 or that he would have spent any part of Christmas Day, 2009, with the maternal grandparents if he had by then been told by the mother that her father had sexually abused her as a child.
There was evidence before me, tendered on behalf of the ICL (exhibit 9), that included notes of Dr A, who was the General Practitioner who treated the mother and the father over the years leading up to separation. Specifically, his notes record that he was attended upon by the mother on the morning of 4 March, 2010. He records the reason for her visit as "insomnia". His notes for that visit also exactly record the following:
There has been stress at home, family politics
Her whole body shaking inside
Really stress
[The father] is very controlling, control her financial
He know everything about her
She wants to talk to someone is worried that [the father] may find out
She's not talking to her family now
Ever since she has been married, [the father] doesn't get along well with her family, esp with her mother
Because of this he tells his parents everything about their relationship
She's embarrassed because there's nothing private between her and his family
Her father inlaw went to her and asked her inappropriate sexual intimate questions and tried to kiss
o/e (which I understand means "on examination")
teary looks depressed
hands trembling
Dr A's notes record that the mother attended upon him again on the afternoon of Wednesday 10 March, 2010. His notes of that visit record as follows:
Over the weekend
While at the holiday house in [Town D], her father in law tried to isolate her again and tried to kiss her
He told him that was inappropriate and he was taken aback
We discuss this and told her to more confident and to stand her ground and tell him what she thinks
She feels better after a long discussion and feel more confident
The mother asserted in her evidence that the paternal grandfather had acted inappropriately to her over several months from around February, 2010. She said that he had tried to kiss her and tried to force his tongue in her mouth. She said that he also touched her in her "pubic area". The paternal grandfather denied this and portrayed the mother as a grievous liar for saying this. Significantly though, the mother had, as can be seen from the GP's notes, contemporaneously at that time told her treating GP of complaints about her father-in-law attempting to kiss her inappropriately.
The father gave evidence that he did not believe the mother's allegations against his father. He would have me accept that the mother was sick at the time and that she was lying to the doctor when she told him those things. He wanted me to accept that her lying was a symptom of her sickness.
The evidence established that when the paternal grandparents were away on holidays at some time around the middle of 2010, the mother told the father that his father had inappropriately tried to kiss her earlier in the year and had touched her genital area at the same time. The father agreed that the mother had told him this. He said that he was worried about it at first, but had decided to test the mother's veracity and asked her questions about the detail on a number of subsequent occasions. He said that she had given inconsistent answers so he had determined that she was lying about it.
The evidence also established that around the same time (around the middle of 2010) the father says he somehow learned that the mother had actually never passed a driving test and was not the holder of a valid driver's licence and thus had been driving around unlicensed for as long as he knew her. He says that he was, by then, concerned that the mother was a compulsive liar. In the witness box, when asked about what other matters she had lied about, he asserted that she had lied to him about other matters during the marriage. The matters he listed were as to some old debts, some old parking fines and an accident that she had with a taxi. That was as far as he went with examples. That did not satisfy me that the mother was a compulsive liar.
The mother's evidence is that the father, angry with her about the allegations she had made against his father and not accepting them, set out to persuade her that she was a compulsive liar and that she was psychologically unwell. What is absolutely clear on the evidence is that the mother was in a very poor emotional state at around that time.
The medical practice's notes (exhibit 9) reveal that on Tuesday May 25, 2010, Dr V, at the same general practice as Dr A, saw the mother for "depression". The notes record that the mother asked for another script for the anti-depressant drug, Lexapro, which she had been on for the previous two years. A prescription was given on that day.
The mother has been seeing Professor Z, Neurologist, for her MS for several years. The evidence satisfies me that in late June/early July, 2010, Professor Z referred the mother to the Neuro-behaviour Outpatient Clinic at a hospital in her residential area with concerns about her emotional well-being. There is evidence that supports a finding that Professor Z apparently considered the mother to be depressed and had some concerns about her potential risk of suicide at this time. The father asserts the mother had said she felt like driving herself and the children off a cliff at around that time. The mother denied that she said such a thing. Although the Professor had some concerns about the mother's potential risk of suicide, the evidence does not satisfy me that it was the mother who informed the Professor that she was feeling suicidal as opposed to the father informing the Professor of that. I am not even satisfied that I can find that the mother actually did threaten to commit suicide at or around that time. But even if she did, it was clearly a symptom of the state of depression she had reached at that time.
She was seen by Psychiatry Registrar, Dr T, on 14 July, 2010. The evidence satisfies me that the father was with the mother when Dr T saw her. The mother said that he was. The letter from Dr T to the mother's GP, Dr A, dated 14 July, 2010, reporting to him on her review and diagnosis of the mother that day, is written in a way that I consider supports a finding that the father was with the mother that day and was, himself, reporting matters to Dr T.
Dr T's letter includes the following reporting:
As I understand it, [the mother] has a long–standing history of what she terms "compulsive lying". She recently disclosed to her husband that she has been living a "double life", and has been lying in order to escape shaming herself since her childhood years. [The mother] has lied about a variety of things in her life, including passing her driving test when she did not. This has resulted in her driving without a license for a period of 14 years. [The mother] reported that she is conscious of her behaviour and had often felt remorseful for lying. However, she stated that this is something that she has been unable to control in her life. In recent times, her husband, [the father] has picked up on the inconsistencies of [the mother's] stories, and confronted her about their validity. At that time, [the mother] reluctantly confessed to him about her issues, and admitted that she had been lying to him for a long time. As a result of her confessions, [the mother] experienced overwhelming guilt and depression. She could not see "a way out" of her problems, and at that stage, felt that she would be "better off dead". According to [the father], [the mother] had threatened to drive her car off the cliff, with her children in it.
Dr T determined that the mother was feeling a lot better that day and did not present as an immediate risk to herself or her children. She referred her for neuropsychological assessment to determine if the MS might have affected her cognition. Dr T said that if the results of that assessment were unremarkable she planned to refer the mother for long-term psychotherapy.
The mother had the neuropsychological assessment on 22 July, 2010 and it did not show any obvious neuro-cognitive anomalies.
The mother was reviewed again by Psychiatrist, Dr C, at the same Neuro-behaviour clinic on 11 August, 2010. He considered there were no issues of risk presenting and that she did not need follow up. She was discharged from that clinic.
From August, 2010, the mother saw Dr R, Psychiatry Registrar at the same hospital, for psychotherapy. She saw her, as far as possible, on a weekly basis and saw her for a total of 40 sessions, with the last session being on 21 July, 2011, some four months after the separation of the parties. Dr R wrote two reports in respect of this psychotherapy and both are in evidence in this matter. Dr R was cross-examined at the hearing. Further reference will be made to her evidence later in these reasons.
On 5 August, 2010, the mother went to see Dr A again. She said the father went with her. Her evidence is that the father "forced" her to go back to see Dr A and to tell him that she had lied to Dr A when she had told him that her husband had been physically abusive to her and that he was mentally controlling her. She said in evidence that her husband went with her into the appointment with Dr A and sat with her whilst she told Dr A this and requested a letter from him, reporting on what she said. The father denied that he asked the mother to do this. He initially denied that he went with her that day to Dr A's surgery. He said that the mother went by herself and obtained the letter from Dr A as a gesture of her understanding of her problem and her willingness to work hard to deal with it.
Dr A's notes in respect of the appointment of Thursday 5 August, 2010, do not indicate that the father was in his surgery with the mother at the time he saw her. However, there is nothing about the doctor's notes overall that indicates at any particular appointment whether the mother was alone or with someone else, so this does not satisfy me that the father was not there. There is other evidence, being a case note created by the case worker at the Department of Human Services recording a conversation she had with the father this year (part of exhibit 8) in which is recorded the notation that the father told the DHS worker that he had gone with the mother to the doctor that day she got the letter, but that he had waited in the waiting room.
When confronted with the DHS record, the father agreed that he had gone with her to the appointment with Dr A. However, when he was then reminded by counsel for the mother that only the day before he had denied going at all, he said "if that is what I said yesterday then that's it." That readiness to change his position on this point was but one part of the father's evidence amongst much of it that troubled me and caused me to doubt its reliability.
Dr A's notes in respect of the visit record as follows (written exactly as appears):
She tells me that all the things she told me about [the father's] father's approach to her is a lie and not true
She has been lying about things for last 14 years
She has been driving without license for 14 years
She has been seeing the Austin psych for counselling for lying
Listened at length
Marriage on hold now
Letter Created – re. Letterhead with patient demogr.
She's happy for me to write a letter to say that her statemetn to the police about [the father] is a lie that he's abusive to her
The letter Dr A wrote says:
This is to certify that [the mother] has told me that she has been untrue in her statements that her husband [the father] has been physically abusive to her and that he's mentally controlling her.
She has a history of compulsive lying about things over the last 14 years that only recently has come to light and she's currently seeing the psychiatry service at the Austin about this lying problem.
[The mother] has given me permission to write this letter.
Case notes that form part of exhibit 8 throw further light on the circumstances of that time. It appears that around the time that the father discovered that the mother did not hold a driver's licence they argued and the mother called the police and made a complaint about the father's abusive and controlling behaviour. The mother asserts that the father had threatened her with his nail-gun. She asserts that he said to her in a threatening manner, referring to his nail-gun, "accidents happen." The evidence establishes the father knew that the mother had called the police and made complaints about him.
It was around the same time that the mother told the father of his father's inappropriate conduct with her. It was around the same time that the mother was referred by Professor Z for psychiatric assessment because of his concerns about her depressive presentation. Sometime around that time, the father had also gone off and spoken to a solicitor and got legal advice about these matters. He said he was given advice about the possibility of taking out an intervention order under the domestic violence legislation but he did not do so. Clearly, things were at a very low point in the marriage of this couple at that time.
I accept that the father had found out from the mother that she had told Dr A about the alleged inappropriate behaviour of his father towards her and also that there were problems in her marriage, with the father being controlling of her. I consider that the father did not accept the mother's allegation against his father. I consider it probable that the father was very unhappy with the fact that the mother had told Dr A these things and that she had made a complaint to the police about his controlling behaviour. I consider it probable that, consequently, he persuaded the mother to go to Dr A and to tell him that she had lied about these things and to specifically ask him for a letter that could then be taken by the father to the police to show them that she had effectively resiled from the substance of her previous complaint. The father conceded in the witness box that he did go to the police once possessed of the letter, informing them of its contents.
This all happened at a time when I am satisfied that the mother was at a low level emotionally, was trying to save her marriage, and was apparently compliant in respect of the father's view that she was a compulsive liar, apparently convinced herself by then that she had a problem with lying. I am not satisfied that the mother went to the doctor by herself and of her own volition. I am not satisfied that when she told Dr A that she had lied to him previously and that she had lied to the police about the father that she was actually being truthful at that point in time. I am not satisfied that the request for the letter was one that was not done at the husband's behest and for his intended purpose of using it to clear the slate about him at the local police station.
Notably, the father made it clear in his evidence that he considered the mother's alleged compulsive lying was a symptom of her underlying psychological disturbance attributable to her sexual abuse by her father as a child. However, sexual abuse of the mother was not raised by him at all with Dr T when she first saw the mother in his company. Neither was it raised by him with Dr R on the first occasion that she saw the mother in his company. His evidence was that he simply assumed that the mother would raise the sexual abuse with Dr R during her regular psychotherapy sessions. This casts doubt on the reliability of the father's evidence that he attributed the mother's state of mental health at the time to sexual abuse of her by her father.
Dr R gave evidence, which I accept, that the mother had told her that the father had told her that she was a "pathological liar". Her evidence was that the mother had, at least initially, reported to Dr R that she needed help to address her lying and that she wanted to learn other ways to cope with her anxieties. Dr R gave evidence that the father had telephoned her and spoken to her at some point in time after the psychotherapy sessions had begun. She said that the substance of his call was to report to Dr R that the mother had been to see her GP and had retracted allegations that he had been violent and abusive to her as well as the allegations that his father had acted inappropriately with her. Dr R said that she got the impression that the father was wanting her to accept that the mother's allegation about his father was false but was, at that same time, informing Dr R that the mother had been sexually abused by her own father. Dr R said that the father was wanting her to explore and find out about sexual abuse of the mother by her own father during her psychotherapy sessions with the mother.
In her evidence, Dr R said that the mother had told her during the course of the psychotherapy that she had at one point answered affirmatively to the father when he directly pressed her with the assertion that she had been sexually abused by her father but that she had later told her husband that it was not actually true. She said that the mother had told her of the paternal grandfather's inappropriate conduct with her and had maintained, to Dr R, the truth of those allegations. Dr R gave no evidence that the mother had ever indicated to her that she was seeking treatment for having been sexually abused by her own father as a child. She gave no evidence that the mother had ever told her that she had been sexually abused by her own father. I would expect the mother to have told Dr R of sexual abuse by her own father sometime during that psychotherapy if indeed it had ever happened.
Dr R reported in a report dated 1August, 2011, that she had finished 40 individual sessions of psychotherapy with the mother just weeks before. She noted the mother's diagnosis as chronic adjustment disorder with anxiety symptoms. She reported finding no evidence of a personality disorder. Of her lying, Dr R said:
Her occasional lying behaviour was a reflection of her difficulty in handling emotions, in the setting of complex relationships on a background of low self esteem.
She did not consider the mother to be clinically depressed at any point or in need of medication for her mental state. She had no concerns about the mother being at risk of harming herself or anyone else.
During her cross-examination, Dr R impressed as a quiet and fairly reserved, thoughtful person. She gave no impression that she was in Court to give evidence intended to cast the father in any negative light. Dr R had not said in her reports that are in evidence that the mother had given her any information about her husband or her relationship with him that was negative. However, when it was suggested to Dr R by counsel for the father during her cross-examination, that the mother had not told Dr R that the father was controlling of her and violent towards her, Dr R calmly but firmly rejected that proposition and said that the mother had told her that. When it was suggested to Dr R that the mother had not told her that the father kept her isolated from her family and friends during their relationship, Dr R said "in the beginning she didn't but she opened up as time went on." When it was put to Dr R that the mother had not blamed the father for keeping her from family and friends, Dr R said that the mother had in fact blamed him for that.
Dr R was asked whether she got the impression that the father was controlling when she first saw the two of them together she said that she could not recall whether she got that impression or not. When it was suggested to her that she would have mentioned it in her report had she got that impression, she answered "not necessarily".
I accept all of Dr R's evidence.
There were further developments in respect of the relationship between the father and mother and the maternal grandparents. The maternal grandfather actually went and sought legal advice sometime in the first part of 2010 as to what could be done to ensure that he and the maternal grandmother got to spend some time with their grandchildren. The mother learned of this. The maternal grandmother told her during one of her contacts with her. The mother told the father that. Consequently, the evidence establishes, the father went over to the maternal grandparents' home and made some form of apology to the maternal grandparents in early July, 2010, and invited them over to spend some time with him and the mother and their boys on the youngest child's second birthday, in July 2010. This happened at a time when the father would have me accept that he actually believed that the maternal grandfather had sexually abused the mother and her sister, Ms L, in the past. That casts even more doubt on the reliability of the father's evidence that the mother had told him that her father had sexually abused her.
The father said in evidence during the hearing that on that day in July, 2010, when the maternal grandparents were there, he confronted the maternal grandfather with the proposition that he had sexually abused both Ms L and the mother in the past. The father said when he did this the maternal grandfather just did not respond. The maternal grandfather was not challenged with such a proposition under cross-examination. The maternal grandmother said in cross-examination that the father did not say anything about the alleged sexual abuse of Ms L and the mother on this occasion. I do not consider it probable that he did.
The evidence is that the maternal grandparents had no more contact with the three grandchildren after that day before the separation. There was very little overt contact between the maternal grandparents and the mother and the father either. In November, 2010, the maternal grandmother and the father spoke by phone. The maternal grandmother was trying to negotiate a resolution to their conflict so that she and her husband could see the mother and the father and the children. Her evidence was that the father asked her to send him a cheque for all the work he had done with the maternal grandfather on the maternal grandparents' home. She said that she and her husband determined not to do that. She called her daughter again soon thereafter and the mother asked her, with the father standing nearby, not to call them again as she was trying to save her marriage. The maternal grandmother said the father took the phone from the mother and told the maternal grandmother, in no uncertain terms, not to call them again.
The maternal grandmother said that she nevertheless sent a Christmas card to the mother and the father enclosing a cheque for $1,500. That cheque was cashed and the evidence established that at that same time the father bought a plasma television set for the home for around that amount.
The evidence established that despite all this, the mother maintained communication with her parents. She realised that the father was aware of that when she found a small tape recorder in a filing cabinet in a room that the father principally used in the home. When she played it, she heard recordings of telephone conversations between her and her parents. That was, she said, about eight months before separation. She did not know that the father had been recording her telephone calls with her parents. She said she angrily confronted the father about her discovery and suggested to him that she use that recording device to record a pretext call with her father-in-law to prove that she was telling the truth in her allegations that he had acted inappropriately towards her. This must have been around mid-2010 after she had told the father of the allegations of his father touching her inappropriately. She said that her suggestion of making such a pretext call made the father very angry. No pretext call was made.
The Separation of the Parties
On 30 March, 2011, the mother left the home after an argument with the father in which, she says, he threatened to take the children away from her. The mother left the youngest child in the care of the father at home, picked upB from school and J from kindergarten and went to the local police station and reported what she said was happening at home. The police prepared an application for an intervention order and immediately issued a Safety Notice to the father that removed him from the home temporarily. The mother and the boys went home and they stayed in the home without the father that night.
The next day, the mother went to the local Magistrates Court for the hearing of the application for the intervention order. The mother and father negotiated through the police for the father's sister Ms S to look after the children whilst the mother went to the Court. The mother's evidence is that at the Court that day, an arrangement was made for the mother to leave the family home and go to stay with her parents and that she would go to the home from Court to collect her personal belongings and the children before leaving. The mother went to the home and found the house locked and empty. The children were not there. She learned that the children were with the father at his parents' home nearby.
On 4 April, 2011, a final twelve month intervention order was made in the Magistrates Court. The order was consented to by the parties without any findings needing to be made as to the allegations the mother had made in the application. The particulars of the Application included allegations that the father had threatened the mother with a nail-gun and that she had accused the paternal grandfather of inappropriate behaviour towards her in the past. The particulars said that the mother stated that this allegation had caused problems within the marriage and had caused the father to become angry and that she felt unsafe in his presence.
Immediately thereafter, the father would not let the mother see or spend any time with the three little boys. He did let her speak with them on the phone. The mother brought proceedings for a recovery order in the Federal Magistrates Court, filed on 6 April, 2011. The father responded with the assertions that the mother is incapable of caring for herself or the children because of her MS and that the maternal grandfather had sexually abused the mother and her sister as young children and teenagers. He sought orders that the children live with him, spend time with the mother as determined appropriate by the Court and that the maternal grandfather be restrained from being with the children when they spend any time with the mother.
At the FMC on 12 April, 2011, a Family Consultant saw the parties and the children and recommended that the children immediately commence to spend time with the mother in the family home. It was also recommended that the boys spend significant time with the father.
On 13 April, 2011, orders were made in the FMC by consent. The children were to live with the mother at her parents' home until 20 April and from Saturday afternoon to Wednesday afternoon and with the father from Wednesday afternoon to Saturday afternoon each week thereafter. Undertakings were given to the Court that the children would not be left alone in the presence of the maternal grandfather. An ICL was ordered to be appointed. A family report was to be prepared and the matter was relisted for 13 May for further hearing.
The Emergence of the Sexual Abuse Allegations in respect of the Boys
Between 13 and 20 April the boys spoke with the father by telephone, the mother said, approximately two times each day. The father did not dispute that. The mother said that the father asked the children to tell the mother to speak with the father on three of those occasions and when she did, he attempted to discuss personal matters with her. She did not wish to do that.
On the morning of 20 April, the evidence established, the child, J, was taken into the local hospital by ambulance at around 11:30 am. The Discharge Summary from the Emergency Medicine Department of the local hospital records under the heading 'Presenting Problem/Examination' the following information:
Fever for 2/7 – fluctuating, present to GP consecutive days advised viral illness. Fever txt and resolving with nurofen; associated LOA and reduced oral intake.
Mild cough, non-productive; no wheeze/chest
tightness/SOB; no complaints of sore ears, runny nose; no abdominal pain/diarrhoea or urinary symptoms.
Childs hands were blue this morning, mother concerned, child BIBA for ? respiratory distress.
Temp 37.7
Mild redness in orophaynx
Peripheries warm, cap refill 3 secs
No signs of central cyanosis
Chest clear, HS [+]+ O; HR 132
Abdo – soft non-tender, BS+
Discussed with mother, advised to keep well hydrated, symptomatic relief – paracetamol/nurofen
The discharge diagnosis was recorded as:
URTI – Viral infection
The mother gave evidence that she had been concerned about J's health for a couple of days and that on the morning of that day she noticed that his fingers were bluish. Concerned, she had rung a female relative of her mother, who was a nurse. Informed that bluish fingers could mean a lack of oxygen in the blood, she was concerned enough to call an ambulance and have J taken to the hospital. She and her mother accompanied him but made arrangements for a female cousin to come around and care for the other two boys in their absence. The maternal grandfather had gone to work that day at 7:15 am and was not expected home until 2:30 pm.
The mother sent the father a text message at 11:53 am telling him she had J at the hospital under observation after having noticed his fingers were blue. She told him in that text that her parents would drop the two other boys to him that afternoon as she did not know what would be happening with J. As it happened, he was discharged only forty minutes later and was taken home. He was then delivered with the other two boys to his father by his maternal grandparents at 3:30 pm. I am satisfied that the mother's evidence about all this was truthful.
In his affidavit, the father said that when he put the eldest boy, B, to bed that night, B said words to him like "Stay with me, can you hold me dad. I feel comfortable with you." The father said he responded by saying, "what is wrong, bello? (Italian for beautiful boy) You can tell me anything." He said B then said "Nonno (Italian for "grandpa") [the maternal grandfather] is a bad man."
He said B was somewhat reluctant but that he encouraged him to tell him what he meant. He then said "[B] proceeded to tell me that [the maternal grandfather] came into his room wearing a vampire mask and bit him all over." Astonishingly, in his affidavit, the father then simply went on to say that he contacted his solicitor at the first opportunity the next morning.
In Court, much more was said by the father. Upon receiving the boys that afternoon, they were at his parent's home for a pre-Easter party. At his parents' home with him and the boys, were his two sisters, the children of one of those sisters and his parents. They all stayed there for the night. He decided to stay with the boys he said, as he was worried about J as he had been to the hospital that day, was still feverish and was concerned that he might have to take him to the hospital again in the night, so thought it best to stay at his parents' home overnight. As it happened, he and the boys stayed over at his parents' home for most of that Easter long-weekend.
The father said that from when B got back that first afternoon "he was different, the whole day. He looked withdrawn. I thought it was the first time he had ever been away from me." He went on to say that B "was more clingy with me. He wouldn't go to the toilet with adults." Then he said "but there was a party, my attention was not just on the kids".
When asked about the conversation he had in bed with B, he said that when B had said "[The maternal grandfather] is a bad man" he had said to him "[B] what do you mean?." He said B responded " don't worry about it I want to go to sleep." He then said he said to B "no its ok [B], you can tell me" to which B is said to have responded "[The maternal grandfather] was wearing a vampire mask and bit me all over."
The father then said he was quite shocked and then just cuddled B to sleep before going to his sister Ms CC's room and telling her that B had just told him that the paternal grandfather was wearing a vampire mask and bit him all over. I was quite perplexed by the fact that the father said that he had asked no further questions, sought no further detail from B and had not even considered checking for any signs of injury. I find all that most improbable. The lack of all the detail in the father's affidavit evidence also increased my doubts about its reliability.
The father's sister, Ms CC, by contrast, actually deposed in her affidavit to observing B to be "so pale that he looked like he had seen a ghost" when the boys jumped out of the car when dropped off that afternoon. She deposed to noticing a change in B's behaviour straight away. She said he was "abrupt, disrespectful, swearing" and that he responded to a question from her by saying "F**k off, [Ms CC]". She said "[B] wasn't the same child as he was before he spent time with the Wife." She said that night she noticed that B was more reserved with the adults than he normally was. She said "when [B] needed to go to the toilet, he now asked one of his cousins to be present with him. If they were unavailable, he asked an adult (but only as a last resort). He wanted the person to wait outside the toilet and needed reassurance that the person was waiting until he had finished."
The sister gave no evidence that she said anything to the father about her worrying observations or that she indicated any concerns she had to him. She gave no evidence that she spoke to B to ascertain if there was any explanation for what she said she observed. I found that rather disconcerting and consistent with her only thinking about these observations with the benefit of hindsight. I find that certainly detracts from the reliability of such asserted observations.
The sister, Ms CC, mentioned nothing more about what she says happened that night in her affidavit. In the witness box, she was very quick to assert that the father had come to her on the night of 20 April, after putting the boys to bed, and had told her that B had just told him that the maternal grandfather was wearing a vampire mask and had bitten him all over.
I could not help but consider that she reacted, when giving that evidence, as if she had been forewarned that she needed to say that as the father had given that evidence that he had gone and told her that night for the first time in the witness box during the trial. The sister had certainly not mentioned it in her affidavit. The impression her affidavit had clearly left me with was that the first she learned of B's alleged disclosure was the morning of Thursday 21 April, 2011. As if to press home the reality of the fact that her brother had given her that information that Wednesday night, she then, quite surprisingly, told the Court for the first time that she had been so shocked and revolted by that information that she had vomited for hours that night after she had been told, sickened by the thought of B being abused by his maternal grandfather. She had not said that in her affidavit either. I found that evidence to be most unconvincing, particularly as it was given for the first time in the witness box. I find that what the sister said probably did not happen.
The sister, Ms CC, went on, in her affidavit, to assert that she was in the kitchen of her parents' home the next morning preparing breakfast when B came into the kitchen and came straight up to her and said words like "[The maternal grandfather] is a bad man. [The maternal grandfather] had a Dracula's mask and bite me all over." She said that when she queried him as to where he was bitten, he showed her and verbalised his arms, legs, thighs, stomach, and his "pepil". That word, it is accepted by all in this case, is a word used in the particular dialect of Italian spoken by the father's family and directly translates into a word like "doodle", being, more specifically, a slang word for the penis. The sister said that he pointed at his groin when he said the word "pepil". She said that she was shocked and horrified upon hearing this from B.
The father's evidence was that he also walked into the kitchen just after B, to hear him saying the words "[The maternal grandfather] bit me, he is a bad man" or something like that. He said he heard his sister ask B "what do you mean? Where?" and that the boy then pointed to his penis and said "he bit me there too".
The father said that he and his sister looked at each other in shock, and that he thought he said something like "shit, something must have happened". Neither the father nor his sister gave any evidence that they said anything more to B about it at that time. They both asserted in evidence that they did not ask him anything more about his disclosure at this point. I find that highly improbable. I do not accept it as likely that events transpired that way.
The father's evidence is that he asked B no further questions about the disclosures on the night before when he says they were first made and then no further questions about them when he heard the disclosure again that morning. The father was already clearly on heightened alert in respect of sexual abuse before the boys went to spend time with their mother in their maternal grandparents' home. He gave evidence that he was not trained or schooled in how to deal with such disclosures. I find both his evidence and his sister's evidence that nothing further was asked by them of B at those critical times to be highly improbable. I do not accept it.
The father did say at a different point in his oral evidence that he had noticed that B had come back from his mother's the day before with temporary tattoos stuck on his arms. The father said that he removed these tattoos by washing them off that same morning. He clearly wanted the Court to accept that the mother had covered physical evidence of her father's biting B with temporary tattoos so that it would not be detected. That he had no further discussion with B about the matter at that time is, I find, improbable.
The father called his solicitor first thing after 9:00 am that Thursday 21 April, 2011 and reported matters to him. He said that he then took B to the doctor to have him examined. Indeed, the sister, Ms CC, said in her oral evidence that she and the father took all three boys to the doctor to have them physically examined for signs of sexual abuse. It was troubling that the father had not given that evidence too. Both the father and the sister said that they did not tell B the reason why he was being taken to the doctor.
Dr A was not on duty at the medical practice that morning. Dr X saw the father, his sister and the boys. All were in the doctor's surgery at the same time. The doctor wrote a letter that day. It says, in reference to B:
The above attended here today with his father, aunt and 2 younger brothers.
He stated that his maternal grandfather had entered the room he was sleeping in at the grandfather's house and had bitten him on the legs, abdomen and genitalia. This had occurred between Thursday 14 April, 2011 and Tuesday 19 April 2011.
B's father [Mr Donella] confirmed that he had told him this also, and that [B] had been appropriately distressed at the time.
Examination showed minor old bruising on both knees, the left thigh, right forearm and mid-abdomen. The genitalia were normal.
Dr X, pursuant to his mandatory obligation, notified the Department of Human Services that same morning of this information, and requested they contact him. A copy of the letter he had written, just described, was sent to the Department. DHS had already recorded notifications of concern about the welfare of the three boys that had been made by the mother at the commencement of her Federal Magistrates Court proceedings two weeks before.
A departmental officer then contacted the police Sexual Offences and Child Abuse Unit and advised of the notification by the doctor and discussed potential police and departmental action. The departmental case worker then contacted Dr X and had a conversation with him about what had happened that morning. The DHS case note of that conversation records, in contrast to the inference conveyed by Dr X's letter written that morning, that Dr X told the case worker that the father had explained to the doctor (by inference in front of B), what had occurred and the doctor had then asked B if it was true to which B replied "yes" and added a few things.
The father accepted in cross-examination that he may have said to the doctor at the outset of the interview that B "may have been sexually abused". He accepted, when he was asked had he explained to the doctor what had happened, that he "would have had to". I find that the disclosure said to have been recorded in the doctor's letter written that morning was made after B had listened to his father telling the doctor the story of what he was alleging the boy had disclosed the night before and that morning, particularly the allegation that the boy had said the grandfather had bitten him all over including on his genitals, with B then affirming it as true when asked by the doctor whether it was true, immediately after the father had told the doctor that story.
The note records that Dr X could not remember all of the additional matters said to have been added by the boy, but did remember that the boy had mentioned that his grandfather had entered his room in a vampire mask while he was sleeping and had woken him up. The notes record the doctor as remarking that the boy was very talkative and energetic that morning. The notes record the doctor as reporting that the father had told him that the mother has a mental health issue and cannot manage the care of the children on her own and that the father would be retaining care of them from now on, not intending to allow the grandfather any further contact with them.
The DHS case note records that the doctor had reported that the bruising appeared to be several days old, that there was no evidence that the skin had been broken in any area and that he could not say that the injuries were consistent with bite marks. The bruises were one cm in diameter and the approximate size of an old one cent coin. The bruises on B's knees were located adjacent to the knee cap on both sides and were very similar. The note records the doctor as believing that this would be a difficult area of the knee to bruise in the course of normal play. The doctor is recorded as having said that B was comfortable with the examination and did not have any concerns about the doctor examining his genital area. None of that satisfies me that B was sexually abused by his grandfather.
The same DHS case notes record that the father's solicitor contacted the department that same afternoon confirming the details of the report that the father had made to him. He is recorded as having advised DHS that the father was intending to retain the children in his care pending further court proceedings.
The same DHS case notes record that a DHS case worker spoke with a police officer from the Sexual Offences Child Abuse team that day who indicated that the father would be contacted for an interview with the boy to be arranged.
The same afternoon the father's solicitors sent, by facsimile transmission, a letter to the mother's solicitors informing them of the events that had transpired in that 24 hours since the return of the children and asserting that abuse had most likely occurred and that the father would be retaining the children beyond the time that he was required by the existing court order to return them. As to the disclosures said to have been made, the letter said:
[t]he eldest child [B] complained that your client's father had entered his bedroom alone in the middle of the night and bit him on his legs, abdomen and genitalia while wearing a face mask with fangs. [B] said he was dressed like Dracula. This was relayed to our client on the evening of Wednesday 20 April 2011.
The father's evidence is that there was no bruising on B when he went back to his mother's care the week before.
The father was asked in cross-examination by counsel for the mother whether he had, since that day, ever told anybody that Dr X had found bite marks on B's penis. He denied that. He agreed though that he had contacted the Children's Protection Society two days later and had spoken to a person working there. He was asked whether he had told that person that the doctor observed bite marks on B's genitals when he examined him. The father denied that he had.
In the DHS case notes is a record of a conversation between the DHS worker who predominantly handled the departmental investigation of the matter and a worker at the CPS. The CPS worker is recorded as having informed the DHS worker that when the father first contacted the CPS he had told them that the doctor had observed bite marks on the boy's genitals. The father was confronted with that in cross-examination but still denied that he had said that to the CPS on initial contact. He said something must have been misunderstood by the CPS worker he spoke with. Of course, that is possible, but again I was left pondering the reliability of the father's evidence.
In his affidavit evidence, the father said that on the Thursday night, 21 April, 2011, the mother rang and spoke to B. He said he heard the mother on speaker phone say words to B like "I told you not to tell anyone what happened in the bedroom". His sisters, Ms S and Ms CC, both gave evidence to similar effect. They both said they heard the mother say that on speaker phone. I reject that evidence of all three as untrue. I find that it was given by all three to give the impression that the mother was conspiratorially involved in a cover-up of wrongdoing by herself and her father.
In her affidavit of evidence in response, filed 25 August, 2011, the mother denied that she had said any such thing. She was not cross-examined on the point. It was not suggested to her that she did say that to B on the phone that first night. The father conceded in his oral evidence that the mother would have known that she was on loudspeaker phone. He conceded that when one is talking on the other end of the loudspeaker phone one can notice that you are on loudspeaker phone. I am satisfied that the mother was also conscious of the fact that the father recorded her phone calls in the past. She knew he was at his parents' home that night, as that is where she called to speak to the boys. She knew that his parents and his sisters and the father would very probably be present and be able to hear her conversation with the boys. I find it most improbable that the mother would have said something as damning as what it is alleged she said.
I am satisfied that if she had said what it is alleged she said that one or another member of the father's family would have remarked immediately upon it and would have told her that they now had convincing evidence against her. I am satisfied that if she had said what it is alleged she said, the very next morning the father and/or one or more of his sisters would have reported to the police that which they say they had actually heard her say. In that regard, the father and his sister had the perfect opportunity to tell the police the next morning when B was taken to the police station to be interviewed by police. The father did not say in his affidavit or his oral evidence that he told the police of this damming evidence implicating the mother when he spoke to them on that Friday morning, the next morning after the mother allegedly said those words. Had the mother said what all three witnesses said they heard, I am satisfied that the father would probably have either prevented any further phone conversations between the mother and the boys or he would have begun recording them using the tape recording device that he clearly had in his possession at the time. There is no evidence that he did either of those things. I conclude that the mother did not say those words and I reject all of the evidence that she did.
The explanation for the evidence from the three witnesses could be that they have all simply made a mistake about what they heard. It could also be that they have made up this part of their evidence in an endeavour to give weight to their other allegations. If that is the case, they deliberately but falsely implicate the mother in a conspiratorial cover-up. Given that there is no evidence that otherwise makes it likely that the mother did say it, and given my general concerns about the reliability of much of the father's evidence and the evidence adduced by him overall, I am of the view that it is probable that the evidence was made up. That conclusion weighs heavily in my deliberations as to the outcome of this case.
In his affidavit evidence, remarkably, the father says nothing about the fact that on Friday 22 April, 2011, Good Friday, the boy was taken to a police station and interviewed by a female police officer attached to the Sexual Offences and Child Abuse Unit (SOCAU). The fact that had happened was only drawn to the Court's attention at the start of the trial by counsel for the ICL when leave was granted for a subpoena to issue for the DVD recording of the interview to be produced to the Court. That happened and the DVD was at the Court in the afternoon of the first day of the trial. It is Exhibit 3 in the proceedings.
It was played in the trial. It went for about twenty minutes. Just the boy and Senior Constable SD are involved in the interview. When asked, only a few minutes into the interview to tell the police officer what he had come to talk to her about that morning, B, without demonstrating any apparent reluctance to talk about the subject matter, or any apparent fear or distress, in an extraordinarily direct and matter of fact manner, whilst gesturing to parts of his body, said:
He bited me on the knees, he bited me on the shins, he bited me on the stomach, he bited me on the arms, he bited me on the head, he bited me on the neck and he pulled my pants down.
When asked who they were talking about he said:
My [maternal grandfather]
He was asked to tell the officer what happened right from the start and B said:
And he said he won't do it anymore
When he wasasked, several seconds later, again to tell what happened from the start, he said:
He bited my shins, and he bited my knees, then he bited my arms, then he bited my stomach, then he bited my forehead.
He was asked when this happened and he said:
He was asked when last time was and he said:
The second time
He was then asked what day it was that day, the day of the interview, and he said, quickly and very confidently:
It was actually Good Friday.
A little later, the police officer again asked B to tell her everything that happened "when he got to [the maternal grandfather's] house" and B again said in fairly rapid succession:
He bited my shins, then he bited my knees, then he bited my stomach, then he bited my arms.
By that point, that response was beginning to sound repetitive, as if it had been rehearsed or rote learnt.
Bis then asked where did this happen and he said:
The police officer then said, carefully, "where" and he said:
The police officer askedhim if he remembered what time it happened and he said:
Yeh, one o'clock
She then askedhim was it "during the day or at night time".
He answered, in an inquisitorial looking manner, as if he is asking for her approval:
At the day
The police officer askedhim to tell her why did he bite him and the boy answered:
because…he was really naughty.
She then asked again "why did he do it" and B said:
because he put the vampire mask on … and a costume
B went on to say that his grandfather put the mask and costume on so that he could scare B. He said that he was in the bed, hiding under the blankets, and that his mother was next to him and that she hid him under the blankets and then B said "stop" to his grandfather. B was showing absolutely no distress or emotion as he was saying this to the police officer. He then said that his grandfather had said that he would stop and never do it again and that he said "sorry [B]".
When the police officer then asked him to show her exactly on his body where his grandfather had bitten him, he stood up and thought about it for a moment, firstly gesturing towards his arm before quickly pointing to his groin and saying "there". The police officer then asked him what he calls that part of his body and he said "your nuts". He then said, when asked what he was wearing, that he was wearing his pyjamas. When asked why he was wearing his pyjamas he said:
because it was at night time
A little later he wasasked if he knows another name for his "nuts" and he says "pepile". The officer asked him "so what happened there" and he said:
I had a big pimple and now it started to get better.
The police officer said "you had a pimple, and what happened?" He said:
It started to get better.
She said"and then what happened" and he said:
That was all. That was all I was talking about.
Then she said"you said something about [the maternal grandfather]" and he said:
Yeh … I am all finished.
She said"did anything else happen?" and he said "no".
She then said "when you said before that he pulled your pants down, why did he pull your pants down?"
B responded, after some thought:
Because he wanted to punch me there
She then asked didmummy say anything and B answered affirmatively. When asked what mummy said he said:
A little later, the officer then asked him who he told about what had happened and he said "his Nonna" (Italian for "nanna").
Later the officer asked him again about when B's grandfather pulled his pants down and bit him on the nuts, expressly asking "what else did he do". B looked around and thought about it for a little and then said:
He punched me
She then askedhim was there anything else he did that B did not like and B shook his head from side to side and said "no". He then said that he wanted to go back to his dad and the police officer said she would finish the statement. She then asked him was everything that they spoke about what really happened and B looked pensive and said "I don't know". Then she asked him whether he told her everything that really happened and he said "yep". Then she asked him what he thinks would happen to someone if they told a lie to the police and B said:
go to gaol
B did not look distressed at any point in the interview or at the conclusion of it. I was not left with the impression after watching the interview that B's recorded disclosures were reliable evidence that he had been sexually abused.
The father gave oral evidence that the police officer told him after the interview that the police could not act on the strength of the interview. That was hardly surprising. When it was suggested to the father in cross-examination that he was disappointed by that, he said that he was not because the police had told him that DHS would be getting involved and he was, therefore, confident that the whole matter would be looked at. When it was suggested to the father, in cross-examination, that B was happy when he came out of the interview the father said "no, he wasn't happy". He then conceded that he might have asked B what he had told the police officer. He then said B would not tell him and did not tell him anything.
In his affidavit evidence, the father goes on to say that on that night, B "specifically said that [the maternal grandfather] bit him on his pepile" and that the maternal grandfather was pulling his pants down while biting him all over, as well as on his penis. In oral evidence, the father said that this further disclosure happened when he and B and the other boys were alone watching TV and that B "came up to me and said "dad, dad, [the maternal grandfather] bit me on the pepile". Initially, the father said that nothing more was said by him to B at that time or by B to him. Then, when pressed as to whether that was correct, the father said that he asked B "where was mummy?" to which B replied "mummy was in the same bed as me." The father then said he asked "where was Nonna?" to which B responded "Nonna was downstairs". The father then said "I asked [J] "did it happen to you too? Did anything happen to you? He said "no"."
The father did not report this further alleged disclosure immediately to the police.
The father then says in his affidavit evidence that the next day, Saturday 23 April, 2011, he was at his brother's house when B called him to come into the bathroom so that he could "fart". He said B had never said anything like this before. He said he followed B into the bathroom and watched as he pulled his pants down and inserted his finger into his anus. He had not said it in his affidavit evidence, but in Court the father said that when B put his finger in his anus he was moving it up and down, simulating someone trying to penetrate his anus.
In his affidavit, the father said that he told B to stop this and then asked B who showed him to do this. He said B was scared and said "no one". The father said he said to B "You can tell Daddy anything, no one will get into trouble". B then told him, he said, that the maternal grandfather put his finger in B's anus while Mummy and Nonna were downstairs cooking. He said B then said to him that the maternal grandfather calls him "butthead". He said that B said that when the maternal grandfather did this to him he said "coochy, coochy coo".
In cross-examination the father said this conversation in the bathroom went for ten minutes. Of course the father might have misjudged that, but if the conversation did go for ten minutes a lot more must have been said between the father and son than what the father has given evidence of. I find that there probably was a lot more said between them, the content of which was not given in evidence. I do not consider the evidence of the father as to this alleged disclosure to be reliable.
In his affidavit, without giving any detail about the time, date or place where the conversations took place or any information about context, the father said further that B told him that:
[The maternal grandfather] woke him up. [The maternal grandfather] pulled [B's] pants down and played with his [the maternal grandfather's] penis together with [B's] penis. [B] said that his penis and [the maternal grandfather's] penis were touching and that [the maternal grandfather] then put his penis into [B's] mouth.
He went on to say in the affidavit:
I queried [B] as to Mummy's whereabouts. He said Mummy was next to him on the bed. He proceeded to say that Mummy was in the same bed lying down with no clothes but her undies. He saw [the maternal grandfather] kissing Mummy's boobs, her arms, legs and kissing her vagina (after [the maternal grandfather] pulled down her underwear).
In cross-examination, the father said these disclosures had happened on Saturday night 23 April, 2011 also. Little else was said about the context in which they were made. He went on to say in his affidavit:
[B] explained to me that there was a fight between Mummy and [the maternal grandfather]. The Wife had kicked [the maternal grandfather] in the testicles and pushed [the maternal grandfather] down the stairs. After the fall, [B] observed that [the maternal grandfather] cut his thumb and that there was excessive blood. [The maternal grandfather] subsequently attended the hospital for inspection of his thumb. [B] relayed to me that [the maternal grandfather] showed his bandaged penis and described "green stuff" around the bandage. This account was repeated to me by my younger son [J].
The father's affidavit evidence went on to say that on Tuesday 26 April, 2011, again at the paternal grandparents' home, the four year old, J, had said to the father that his penis hurt. This is the first occasion it is alleged that J made such a disclosure. I observe though that J had been, it is accepted by the father, with B, the father and others at the doctor's rooms on the Thursday and had been with B and the father on the Friday night when B allegedly directly said straight out "dad, dad, [the maternal grandfather] bit me on the pepile." The father said that he had asked J directly on that occasion had the same thing happened to him and J had said "no".
The father's affidavit evidence though, goes on to say, in respect of this new disclosure from J, that J "said that it hurt because [the maternal grandfather] bit him on his penis when he was upstairs alone. [J] said he went to hospital in the doctor's car because he hurt himself when [the maternal grandfather] pushed him down the stairs."
The evidence establishes that the father went to the hospital on Wednesday 27 April, 2011 and enquired about J's hospital admission on the previous Wednesday. He obtained a copy of the discharge summary that is referred to and quoted from above.
The father made it absolutely clear in his oral evidence that he believed that the hospital records of that admission support his view that J was telling him the truth and that he was taken to the hospital, not because his mother was concerned about respiratory problems associated with him having a respiratory infection (as the document shows was diagnosed at the hospital), but because he had been pushed down the stairs by his maternal grandfather.
There is evidence that the father initially told the DHS case worker that he did not know whether to believe J's disclosure or not. In Court, during the hearing, the father said that he now believed J absolutely. He explained his change from scepticism to belief by reference, effectively, to everything that had "come out over time". He did not accept that J, who he did concede had already heard what was allegedly being said by B, might have just begun saying the same thing as B to get attention. The father's fixed position on this caused me great concern.
On Tuesday 26 April, 2011, the father took B and J back to the police with a view to having both boys interviewed again. The same police officer who had interviewed B on Good Friday tried to interview both boys. The evidence is that both boys refused to be interviewed and the police officer did not press it.
The father's other sister, Ms S, also gave affidavit evidence. She also deposed to noticing "an extreme change in [B's] behaviour" after he returned on 20 April, 2011. She asserted he was more aggressive and angry if he did not get his way. She asserted he wanted his father to be with him everywhere he went, including to the toilet. She said she observed the same behaviour with J too. Like her sister, she gave no evidence that she raised such observations with the father, her sister or anyone else, including the boys, at the time she is said to have observed it. Again, I consider the absence of any such evidence detracts from the reliability of such observations, again, like her sister's evidence, clearly given with the benefit of hindsight.
The sister, Ms CC, deposed in her affidavit to hearing a further disclosure from B and her first disclosure from J "several days after their return from the Wife's house". She said she was working on a downstairs computer (at the paternal grandparents' home) when B is said to have shown her a picture he had drawn that he described was of his Nonna's house. She complimented him on the drawing and said that the other boy J then directly said "My [maternal grandfather] is a bad man. He bite me all over and my pepil and that it was yuck." She said he scrunched up his face when he said the word "yuck". He went on then to say "he was wearing a Dracula's mask and my mum pushed him down the stairs and he hurt his finger and had to go to the hospital." She said then that B then said "Yes, he is a bad man. He bite me all over too. But he is not going to do it anymore otherwise he will go to jail. He is going to be good from now on." No date or time was given as to when, more particularly, these disclosures were allegedly made. Even if B did say those things like that, which I am not actually satisfied of, I am far from satisfied that such disclosures reliably support a finding that he was sexually abused in all of the circumstances.
The sister, Ms S, deposed in her affidavit to hearing her first disclosure from B later on that same week at the paternal grandparents' home too. She said that she was doing some alphabet recognition with B as "home schooling" of him when he said to her when they got to the letter 'Q' "I know this letter, [the maternal grandfather] taught me this letter when he was a good Nonno, not a bad Nonno." She said she then asked him "why is [the maternal grandfather] a bad Nonno now?" He is said to have responded verbally and by role-playing for her. He is said to have said "[The maternal grandfather] did bad things to me. [The maternal grandfather] had a Dracula mask on, and came into my room at night. He bit me over his body, he even bit my pepil. He even put juice on his finger and put it up my bum. I was really angry. [The maternal grandfather] broke my bike, pulled off the handles and put them down my throat. He even put his pepil in my mouth."
The sister, Ms S, said that during that same period she asked J "did anything happen to you when you were staying with mummy?". She said he responded, asking her to shut the door before whispering quietly, "yes, [the maternal grandfather] bit all over my body and bit my pepil." She said that shortly after the children's return she changed the youngest boy's nappy and he said "my pepil's sore." She said "it seemed that his penis and groin were sensitive."
Both the sister's said that in late July, they heard their brother telephone to speak to the boys and, with the phone on loudspeaker, they heard B say "[The maternal grandfather] came over and did it again." They both said they heard B then say to his mother, "Did I do okay? Did I do Okay?" They said they heard the mother then say "Talk to dad. Talk to dad."
They both said in cross-examination that they believed this was evidence of the mother playing "mind games" with both B and the father. They both stated that they thought that probably the mother was encouraging B to say these things to torment the father, making him think that abuse was still happening. If that was true, again, that would be totally despicable conduct on the part of the mother. I do not accept it as true. I do not accept their evidence that they heard B say those exact things or the mother respond in the way they assert.
The DHS case notes (exhibit 8) created by the case worker who had carriage of the departmental investigation of the matter record that she attended the home of the father on 9 May, 2011 and spoke with the father by himself and then spoke with B in the father's presence. She records that the father told her that day that B had also disclosed to him that the maternal grandfather had also put his penis into the mouth of another boy, a young cousin on the mother's side, who had been there at the maternal grandparents' home also during the same time as the boys. The father said that B had reported to him that he (B) was kicking the maternal grandfather at this time, telling him to stop. The father said nothing in his affidavit at all about this alleged disclosure. His failure to do so yet again casts doubt on the reliability of his evidence.
In his oral evidence, he accepted he had saidall that to the DHS case worker. He said he had made contact with TT's parents and told them of the allegation, after having been advised to do that by one of the professionals with whom he had been dealing. He was unaware of any action being taken by TT's parents after receiving the information.
The father is recordedin the same notes as having reported that B had told him that he went to Target with the maternal grandfather, the maternal grandmother and the mother and that on that shopping visit the maternal grandfather had purchased the vampire mask. There was absolutely no reference to this in the father's affidavit. This was just another example of the many matters the father had simply failed to depose to in his affidavit evidence that were, I consider, critical matters in the overall proceedings.
During the father's cross-examination, he was shown a piece of torn note paper that the mother produced, that had handwriting on it. The father accepted the handwriting was his. The note had been found in the family home by the mother after she had been allowed back into the home by order of the FMC on 13 May, 2011. It said on it:
Got video of the man buying mask at Northland
Got neighbours hearing screaming comeing from the house
Both of these had ticks beside them. The father did not accept that he had put the ticks on the note. He could not explain how they might have got there. The note became exhibit 4 in the proceedings.
Under cross-examination, the father confirmed that he had gone to a shopping centre and obtained access to CCTV video footage which he viewed in an attempt to find evidence of the maternal grandfather purchasing a vampire mask. When asked if he had found any, the father said that he found footage of a man "who looked like him" buying a mask and he left his answer at that. It was only when he was pressed further on the subject that he actually accepted that he had checked the footage more carefully then, including by way of close-up facility, and had satisfied himself that the man seen buying a mask in the security video that he watched was definitely not the maternal grandfather. I was particularly troubled by the father's failure to clarify this right from the outset of his evidence about the subject. He seemed intent on leaving the matter hanging with the inference, quite wrong as it would have been, that it might have been the maternal grandfather who was seen in the video.
When asked what he could tell the Court about the second part of the note (exhibit 4), the father said, rather inexplicably I considered, that he had absolutely no memory of anything to do with that part of the note, although he again confirmed it was his hand writing. He could tell the Court nothing about any neighbours allegedly hearing screaming or what he had written that for. There was absolutely no other evidence of any neighbours hearing any screaming, save for the father being recorded as telling the DHS case worker that neighbours might have heard him saying to the mother "you do what I fuckin' say" when they were living together, during discussion between the case worker and the father about domestic violence allegations made by the mother.
Although nothing was said at all about it by the father in his affidavit, he conceded in cross-examination that he had actually had a number of conversations with B where he had asked him questions about the alleged sexual abuse which he taped. The mother found a piece of paper in the former family home, when she later returned to it for a time pursuant to an order of the FMC, on which the father conceded he had written what was a rough transcript of a part of one of the conversations with B that the father had recorded. That piece of paper became exhibit 5 in these proceedings. Some of the matters attributed to B in that rough transcript had not even been deposed to by the father in his evidence.
The father said he had provided the recordings to his solicitors. None of the recordings, or any transcript of any part of the recordings, was put into evidence by the father. The father conceded that he had recorded conversations with B despite having been told by police that he should not continue to speak to B about the allegations. When the father was asked whether B knew he was being recorded he said that he did not. When asked how that was, the father responded in a curious manner. He said something like "I just put it .." whilst gesturing with his arm and hand towards the bench in front of him in the witness box. He then stopped himself and said "I just put it in my pocket" and then gestured towards his outside coat pocket. The DHS notes (exhibit 8) record the father as having told the case worker assigned to the case about the same subject matter. They record him as having reported that B probably knew he was being recorded because he would have "seen the light" on the tape recorder. I considered the father's evidence about this matter quite unreliable and, at least that which he gave under cross-examination, as being given in such a way that best suited the father at the time.
The departmental case worker's notes (part of exhibit 8) of her visit to the father's home on 9 May, 2011, record that the father told her he had taped B making disclosures. He played to the case worker five different excerpts of conversation with B that he had recorded. The case worker records that B made statements in those recordings as follows:
He took my clothes off
He put his pepile in my mouth
We went to the hospital – [TT], me and Mum
[The maternal grandfather] was mean and naughty; he scared all the kids
[E] said to get all the kids cos they don't want to be scared
Nonno should be doing this to girls rather than boys
Nonno fell down the stairs, he did a somersault. He cut his whole finger. Mummy pushed him down.
He saw him, Nonno, kissing his mum everywhere
The case worker's notes also record that the father is heard to say on one of the recordings "You're such a good boy, daddy's so proud of you." That none of the recordings were put into evidence again casts grave shadows of doubt over the reliability of B's reported disclosures.
The same day, 9 May, 2011, the case worker interviewed B at the father's home. The interview was conducted in the father's presence after B indicated he definitely wanted his dad in the room with him.
The case worker's notes from that day record that before she even began to introduce herself to B, he stated to her:
[The maternal grandfather] bited me all over my body
The case worker divertedB from that subject and went into an introductory conversation.
After the introductory conversation, the case worker said to B:
Earlier you mentioned something about your [maternal grandfather]. Did you want to tell me about him?
Bis recorded as having said in response:
He bited me so much. He kissed my mum on the vagina. My mum kicked him in the balls. Mum buys me stuff. [The maternal grandfather] does 5 nights. He had a spy mask, a vampire mask, and a costume. I wasn't there with him, but he scared me one night. My mum pushed him downstairs and he had blood on his thumb.
A little further on, the case worker asked him:
You said that he was biting you; and that he kissed your mum on the vagina; and that your mum kicked him in the balls. Can you tell me more about that?
Bresponded:
[The maternal grandfather] kicked my mum in the knee and she could of fallen downstairs.
A little further she asked:
Why did your Nonno kick your mum in the knee?
[The maternal grandfather's] so naughty and he's sick in the head.
The father conceded in cross-examination that is not an idea thatB could have just come up with by himself. He accepted that B must have heard that from an adult. He was very quick to assert that he had not said it to B and that no member of his family had said it to B. He accepted that B might possibly have overheard one of them saying it at some point though.
The case worker went on to ask B in that conversation:
Earlier you said that your Nonno kissed your mum on the vagina. Can you tell me more about that?
He kicked my mum in the vagina. He had to put very hard shoes on. It was about that hard… and it hurt a lot.
Later, the case worker asked B:
So [B] you've mentioned that your Nonno kissed your mum on the vagina. Can you show me where the vagina is?
B:(motioned at the genital area)
Case worker: OK
B:[The maternal grandfather] put his pepile in my mouth. When I say that dad's going to be so proud of me. He's going to get me a Woody cos I've told the truth. My mouth's getting dry ([B] then went to get himself a drink of water, and returned)
That statement by B suggests that his father has certainly discussed the subject matter of the actual interview with B before the interview. It suggests that the father offered to buy him a toy if he made that disclosure to the interviewer. In cross-examination, the father denied that was what had happened. I do not accept his denial. I consider he probably did make such an offer to B.
Later again in the interview, the case worker asked B:
And when [the maternal grandfather] put his pepile in your mouth, when was that?
B said:
Case worker:Can you tell me more about what happened when he did that?
B:Nonno punched me in the balls, then kicked me in the balls. It hurt.
Case worker:OK, so you've said that Nonno punched and kicked you in the balls. Then what happened?
B:Then he jumped on my stomach and on my belly. [TT] was with me and we were running and I ran faster.
As more questions were asked by the case worker, B's story got more and more extra-ordinary. He said that his Nonno jumped on his mother's head and that he, B, then pushed Nonno against the wall and kicked him in the balls and kicked him in the head and stood and stomped on his head. He said that it took hard work to fight him off. He said that his Nonno got stitches in his head.
The father had said nothing about any of this in his affidavit, despite the fact that he was present during this interview. When confronted in cross-examination with the content of B's answers to the case worker, he conceded that he did not know what parts of it to believe and what parts not to believe. He said that he did not know "fact from fiction" in respect of what B had said to the case worker. Nevertheless, he remained firm in expressing his belief that as B had made disclosures of sexual abuse that he had actually been abused. The evidence goes further towards satisfying me that B's alleged disclosures can simply not be relied upon.
Upon leaving that day, the case worker reported to the father that it was possible that SOCAU may want to interview B again at some point. The father said he did not want that as B had been through enough already. Nevertheless, B was put through more interviews after that by his father. I shall return to that later.
The case worker's notes in exhibit 8 include records of a telephone conversation with the father on 6 June, 2011, when he rang in to update her on events. The notes record the father reported many new matters of concern to the case worker. They included reports of:
B saying that he has been encouraged by his mother and grandmother to tell the case worker nothing happened with Nonno
B inappropriately touching his paternal grandmother's bum and his aunty's breasts
B trying to kiss his brothers on the lips and poking his tongue out like a "tongu-y"
B talking about putting his finger in his bum crack
B trying to touch his brother, J's penis
Again, remarkably, the father did not mention all these things in his affidavit evidence. One of them that he did mention in some detail was the allegation that the mother and maternal grandmother were encouraging B to report that nothing had happened with [the maternal grandfather]. In that regard, the father said in his affidavit that he is concerned that during her time with the children, the mother is training the boys to lie about what happened to them or to confuse them about the sexual abuse. The evidence that he deposed to in support of that assertion was then set out in some particular detail.
The father set out a number of specific dates and exact times that he said the mother and the maternal grandmother said particular things to the boys. He set out in his affidavit express quotes of things that he said the mother and maternal grandmother had said to the boys. The father asserted that he had recorded these matters on a "nannycam" that was installed in the former family home.
The mother had been allowed back into the former family home to live there with the boys during her four days each week that they were to be in her care. That had been allowed by the order made in the FMC on 13 May, 2011. The father, in his affidavit evidence, said that he had video recorded the mother in the former home by "nannycam" and that he referred to matters he considered to be relevant having occurred on 24 May, 29 May, 11 June, 13 June and 14 June.
In the mother's affidavit of evidence in chief, the mother deposed to becoming aware on the weekend of 11 June, 2011, that motion sensors installed in the house might in fact be cameras and she started to believe that the father might be recording her whilst in the home. She said that the father had always told her that the devices were only motion sensors for security. She was informed, she said, on 21 June, 2011 by the DHS case worker that the father had offered to show the departmental worker a copy of a surveillance tape from cameras in the former home and she then realised that her feeling was right. She then pulled the motion sensor/camera off the wall.
The father's evidence was that the couple had set up a "nannycam" in the living area of the home some two years prior to separation. Under cross-examination, he agreed that would place the setting up of the "nannycam" in or around March, 2009. He said that it was installed by him after agreement between him and the mother. He said that they had agreed to install it as a result of the mother's disclosure to him that her father had sexually abused her as a child and Ms L's disclosure that the maternal grandfather had sexually abused her as a child, too.
He said that they had decided to put it in to watch for whether the maternal grandfather came to the house when he and the mother were not there. He said this related to the fact that the maternal grandmother was often called upon to look after the three boys in the absence of both him and the mother and that they worried that on such occasions the maternal grandfather might come over and sexually abuse the three boys. He said that it was set up where it was in the living area and not the bedrooms as there were wiring problems preventing installation elsewhere.
There is evidence, however, in part of exhibit 8 that on 21 June, 2011, that when the father called the DHS case worker to tell her of the 'nannycam' footage, he agreed with the case worker that the mother would not have known she was being taped.
In total and complete contrast to the father's evidence that there was agreement to install the 'nannycam' a couple of years ago, the mother denied any such agreement. She denied knowledge of the installation of the video surveillance camera either during the marriage or until she learned of it in June, 2011. She said that her permission to install such a device and record anyone was never sought or obtained by the father.
I accept the mother's evidence. I found the father's evidence about the installation of the "nannycam" to be vague, unclear and most unpersuasive. I was not satisfied that the father was telling the truth about the installation and use of the video surveillance camera. His other evidence was that the mother disclosed the sexual abuse by her father in the second half of 2009, not as early as March, 2009. I found his evidence about obtaining the mother's agreement to the installation, the reasons for the installation in the living area of the home, the reasons for the lack of any evidence corroborating the 2009 installation of the device and the mother's apparent forgetfulness in respect of the presence of the device most unconvincing. Indeed, the mother's actions, in initially going about her day to day life in the home without apparent concern for video surveillance before starting to talk to the camera after she began to believe that she might be being covertly recorded, then ultimately pulling the camera from the wall when she was told there was actually a camera there, were, I conclude, completely consistent with her having no prior knowledge of the existence of the camera until June last year.
The father, curiously, chose not to put any of the video surveillance recorded footage into evidence. He did not seek to tender a DVD of the recorded footage. He simply chose to give evidence of what he believed the recorded footage included on a limited number of days. He did assert that the device was only activated when it sensed motion in its field and that it would cease some time after it sensed no motion in its field. He said that it would record for thirty days before beginning again and recording over the previous 30 days of recorded footage, thus explaining why he could only produce footage of events after 13 May, 2011.
Somewhat concerned about the nature of the evidence about the installation and use of this camera and the evidence the father had given in his affidavit about the things the mother and the maternal grandmother were alleged to have said to the boys, during the trial I sought to ascertain if an actual recording did exist still and was informed that one did. I asked for it to be produced and a DVD was produced. I required it to be admitted into evidence and it became exhibit 6 in the proceedings. I have listened to and watched the DVD of the recorded footage. It shows, variously, the mother, the maternal grandmother and the three boys in the living area of the couple's former home on, apparently, different days.
I particularly watched and listened at those parts identified by date and time as the same events that the father deposes to in paragraphs 72.1 to 72.6. Indeed, whilst the audio is quite difficult to actually distinguish at times, I satisfied myself that what was said in paragraph 72.1 of the father's affidavit was in fact correct. Indeed, the mother appeared to be very confidently and assertively telling her mother not to talk about the subject that she was discussing. I considered the mother's conduct absolutely appropriate in doing so.
As to the father's evidence in paragraph 72.2, I satisfied myself that the following conversation took place between the mother, the maternal grandmother and the boys:
Mother:...and I am so proud of you (to [B]) for telling the truth. Well done.
[B]: unintelligible
Mother:well done. And you are going to see that lady again. You can tell that lady too if you like.
[B]: I don't want to
Mother:You don't want to. Why?
Grandmother:Don't be scared of that lady, she is mummy's friend
Mother:Don't be scared to tell the truth. Don't ever be scared to tell the truth. The truth makes you strong and a good boy.
Other unintelligible conversation
Mother:(to [B] in apparent response to something [B] asked her) [The maternal grandfather] cried a little bit only because he knew that was a lie
[B]:And [J] was lying too.
Grandmother:(to [J]) Were you lying too? You are not going to lie anymore now.
Mother:(to the boys) You know what. … We are all going to be superstars because we tell the truth.
Mother:When you see that lady, don't be scared to tell the truth. That's my friend.
Grandmother:She is mummy's friend.
There was then more conversation about feeling good when you tell the truth and not feeling good when you tell lies.
I could not discern any Italian words spoken between the mother and the maternal grandmother. That is not to say that did not happen. Some of the conversation was unintelligible. However, my viewing of the recording certainly satisfied me that the father had been very selective with the references he made to it in paragraph 72.2 and did not place it all in correct context. I did not hear the grandmother and the mother tellB that he was lying.
As to paragraph 72.3 of the father's affidavit, the maternal grandmother does not say the words that the father attributes to her. She actually says "what a shame that …unintelligible word had to lie for.. unintelligible word". The mother then responds quickly with "that's ok. But they are going to tell the truth from now on. Aren't you [B]?" B then says to his mother "you know what? Dad gives me a hug to talk about [the maternal grandfather]." The mother then says to him "well you know what, tell the lady. And you know what? You say I don't want to talk about [the maternal grandfather] anymore. All I want to say about [the maternal grandfather] is that I love him. I don't want to say bad things about him because he is a good Nonno. I don't want to say bad things about Nonno because I love him."
As to paragraph 72.4, the conversation between the mother and B actually goes as follows:
Mother:I am so proud of you
[B]:Why was [the maternal grandfather] crying?
Mother:Unintelligible
[B]:how did you know that?
Mother:Nonna told me
[B] :unintelligible
Mother:you have to tell the truth. If you tell the truth you know what will happen? Cause you tell the truth you are going to be a big superstar.
Mother:[B] it is actually good if you tell the truth about Nonno because he didn't do anything to you did he? It is good to tell the truth all the time. Ok? Don't be scared to tell the truth Ok? You promise? You promise to tell the truth?
[B]:when you tell the truth you are a cool dude.
Mother:Exactly. And when you get older everyone is going to believe you.
As to paragraph 72.6, the mother is sitting at the table with another adult woman and the three boys at the time the father refers to. She has J in her lap. He is trying to get her attention and after a while looks at her and says "[The maternal grandfather] bit my … Daddy wrote it on a book, on his school book." The mother responds "about what we do about telling the truth and lies. Did [the maternal grandfather] bite you? Are you telling the truth? Is that the truth or is that a lie? She then looks to B and then to the youngest boy, N and says "Did you tell Daddy that [the maternal grandfather] bit you? Why? That's cheeky. You don't say stories like that." After a little moment, she goes on to say " I told [Ms MM] no one tells lies." I did not hear the mother say "did you make up stories about [the maternal grandfather]?"
Clearly, it was not appropriate for the mother and the grandmother to be talking to the boys at all about this subject that was discussed with the boys on these occasions. However, I did hear the mother and the grandmother repeatedly encouraging the boys to tell the truth. I heard the mother repeatedly telling the boys that telling the truth is preferred to telling lies. I did not consider that the mother was "training the boys to lie about what happened to them" as the father said she was. Indeed, if the mother had been attempting to cover up sexual abuse that had happened, knowing that it had happened and having been involved in it, I doubt that she would have been doing it this way. The fact that the father has secretly placed a 'nannycam' in the home to spy on the mother with the children and was only able to come up with these occasions upon which the mother has discussed the subject with the boys in the home gives me comfort in rejecting the father's allegations that the mother has been involved in the sexual abuse of the boys and a conspiratorial cover-up of them.
After viewing this video surveillance that only came into evidence on my insistence, and comparing it with the affidavit evidence of the father on the subject, I was left concerned that a full and complete picture had not been presented by the father on the subject and that, again, he was particularly selective about the evidence that he put before me in support of his case. Had I not insisted the video be put into evidence and not watched it, I am satisfied I would have been somewhat misled by the father's evidence on the subject.It certainly did not portray a completely accurate picture of the events it was said to portray.
On 7 June, 2011, the DHS case worker attended B's school and interviewed him alone. During this conversation, although at the end when he was asked was he telling the truth when he told her the things he had about the maternal grandfather the first time they had met, B said "yes". He only otherwise had nice encouraging things to say about the maternal grandfather and according to the case worker's observations (recorded in part of exhibit 8) he did not display any fear or apprehension when he spoke of the maternal grandfather's house. During that interview, he did say some very negative things about his paternal grandparents though, including that he had seen his paternal grandmother's vagina. The DHS case worker concluded by noting that she still could not substantiate the allegations around the sexual abuse but could not say that she observed any undue fear, apprehension or distress when B was speaking about his maternal grandfather.
The same day, the DHS case worker had a lengthy telephone conversation with the father. She told him she had interviewedB that morning and that he had made no new disclosures or said anything further of concern, apart from having said he had seen his paternal grandmother's vagina. The case worker told the father that she had dismissed that as untrue. She recorded that the father had told her that he is convinced B was telling the truth initially. She recorded that he asserted that the first doctor had not examined B correctly to determine if there had been anal penetration. She recorded that the father asserted that when B had told him that the maternal grandfather had put his finger in his bum that he had seen B's bum and that it was all red. The father did not say that in his affidavit evidence or in any oral evidence he gave in the trial. That is the only mention of that I have heard or seen.
The case worker records that the father did not take him back to the doctor for further examination after that. There is no evidence that the father told the police or DHS staff that he had examinedB's anus and noticed redness any earlier than at this time.
The case worker records that the father said that B had told Dr A a week after the events first emerged that the maternal grandfather had put his penis in his mouth. I have seen absolutely no other evidence corroborating that assertion.
The case worker records that she tried to explain to the father the difficulties in substantiating abuse, that she considered there was a lack of independent evidence, and, ultimately, that she could not rule out "some level of coercion" in respect of B's disclosures to her. By that last reference, I understand she is meaning "coercion" on the part of the father or others as to what B was to disclose. She recorded that she was left with real concerns about the father's thoughts about the investigation, his fixation on the abuse and how that might be impacting on B's sense of well-being.
She recorded that during that interview she had heard someone whispering in the background to the phone call at the father's end of the line and asked him about that. She records that he denied there was anyone whispering or there in the background andthat he said it was the TV. The case worker's notes record that she clearly had concerns about the honesty of that denial.
Bearing in mind that pages of case notes of the DHS case worker were in evidence before me (exhibit 8) and my perception that the case worker had formed, over time, some relatively negative views of the position adopted by the father throughout the entire investigation, I made it clear to counsel for the father that if she wanted to cross-examine the DHS case worker at all I would do what was necessary to bring the case worker before the Court to allow that cross-examination to occur.That offer was not taken up at any point.
On 21 June, 2011, the father called the DHS case worker again to tell her about the 'nannycam' surveillance footage that he had obtained that I have discussed in detail above. During that conversation, the case worker records, the father said that he had not taken the boys to a psychiatrist for counselling because the case worker had advised him not to as it would be counterproductive. It is recorded that the father said he spoke to a psychiatrist who disagreed with that notion and who said that he would be happy to see B as "5 year olds do not make things like that up". The case worker records that she then discussed with the father why he had been advised about over-servicing the children. There is no record that the father indicated any intention at that time to take the boys to see the "psychiatrist" but the evidence establishes that a little over a month later he did take B to see that person. In fact, that person was not a psychiatrist but rather a social worker.
That social worker, Mr M, prepared a report that was attached to an affidavit and adduced into evidence by the father. He is an experienced social worker, having a Master of Social Work degree and having worked in various areas of practice for approximately thirty years. In Court, he frankly conceded though that he had no particular qualifications in respect of obtaining disclosures of sexual abuse and that about only 5-10% of his practice related to issues of sexual abuse.
He reported that in June, 2011, he had been contacted by the father"seeking therapy for [B]", who the father said had been sexually abused by his maternal grandfather. He was informed that B had made disclosures to his father about the sexual abuse and that DHS and the police had not been successful in getting any disclosures despite interviewing the child three times and that the allegations had been considered unsubstantiated. He considered that the father was distressed about the well-being of B and he determined to see them. He did not, however, speak to the DHS case worker or the investigating police before he saw the father and B.
He saw the father andB together on three separate occasions on 6, 13 and 18 August, 2011. At the hearing, the social worker agreed with the proposition put to him by counsel for the mother that he considered his role as being one of offering another opportunity for B to open up and make disclosures. Indeed, the social worker accepted the proposition put to him by counsel for the ICL that the father made it clear that he wanted to see the social worker to try to illicit disclosures from B. I found that astonishing having regard to the evidence that he had not wanted B interviewed further by police because he had been through enough. He accepted the proposition that the father had informed him that B had made no disclosures to the police or DHS. However, in re-examination by the father's counsel, the social worker agreed with the proposition that it was his understanding that B had said nothing to the DHS that allowed DHS to substantiate the allegations of sexual abuse rather than that B had said nothing at all to DHS. The social worker did not agree with the proposition that the father was seeking counselling for B (even though that is what the father says he was doing). I inferred from that answer that the social worker believed the father was bringing B to him to see if B would make further disclosures of sexual abuse that might assist in the investigation. In his report he records that he informed the father at the first session that if B made a disclosure of having been sexually abused, he would need to notify DHS. In the event, that did happen and he did notify the DHS case worker of that. No counselling or therapy occurred at the three sessions and after those three sessions concluded the social worker determined that he should not see B any further, disclosures having been made and passed on to DHS.
The evidence establishes that although the social worker spoke with the DHS case worker after seeing B and hearing disclosures, he clearly did not become aware of all of the details of the DHS investigation that had been conducted to that point in time. He agreed that had he been fully aware of all the investigation and assessments that had been conducted by police and DHS to that point in time, he may have been more cautious in the way he dealt with B and his father. After being made aware of some of the incredible things B had been recorded as having said to the DHS case worker, the social worker said that he probably would not have interviewed B had he been aware of all that before he started seeing B. He also agreed that it is not normal to interview a five year old child in respect of sexual abuse allegations in the presence of one parent where the parents are in high conflict and involved in proceedings in this Court. Apparently, he was not made aware, prior to the sessions he conducted, that these parents were involved in these proceedings in which he then became a witness. He accepted the proposition that there was a real risk in such circumstances that the process would be "contaminated". I infer, by that, he meant that he accepted that the reliability of any disclosures made by the child in all those circumstances must be very carefully considered.
It appears on the evidence that very early during the first session with B and the father, the father handed the social worker copies of five drawings that B had allegedly drawn. Copies of those were attached to the social worker's report and are in evidence. The father apparently informed the social worker that the drawings represent B illustrating how he was abused by his maternal grandfather. The social worker records that, according to the father, one drawing depicts the maternal grandfather performing oral sex on B, whilst the others appear to depict sexual activity between the mother and the maternal grandfather.
The father told the social worker thatB had drawn the pictures four weeks before the social worker saw them. The social worker did not discuss with the father or B any of the circumstances under which the drawings came into existence. The report of the social worker does not suggest that he discussed the drawings or any further aspects of the matter with B or the father during the first session.
The father gave no evidence in his affidavit about the drawings. How they allegedly came into existence was explained by his sister, Ms S, in her affidavit. She said that in late July, 2011, she was playing with the children downstairs with her friend. She said she had observed B draw some pictures earlier that day and they were resting on a nearby table. She said that B said "they are naughty pictures" and that he was embarrassed to show them in front of Ms LL. She said "that after being comforted" (she explained in her oral evidence that she "comforted [B]" simply by urging him to talk to her about them despite his embarrassment) she asked B what they were about and he had responded "this is [the maternal grandfather] with his Dracula mask on and mummy pushing him down the stairs." He went to the next picture and said "this is [the maternal grandfather] lying down with his pepil and is pissing on mummy's face." He went to the next picture and said "this one is mummy with no top on and that is [the maternal grandfather] with his pepil." He went to the next picture and said "This is my bed, do you like my bed?" She responded that it was a very good bed and he then said "that is me on my bed and that is [the maternal grandfather] coming into my bedroom with his Dracula mask on and that is my pepil in his mouth." He went to the next drawing and said "Mummy pushing [the maternal grandfather] down the stairs with his Dracula mask on." She said nothing more at all in her affidavit about the drawings, the conversation with B about them, whether she reported it to the father, if so, whether she heard the father discussing the drawings with B, nothing more at all.
At the hearing,Ms S was asked some questions about those circumstances by counsel for the mother. She said that she and the father had been with the boys on a Saturday morning playing downstairs at the paternal grandparents' home when B went to the drawing table and just drew the pictures, completely unprompted or encouraged by any of the adults. She said he then just took them over to show the father. She said she saw the father looking concerned and teary and, not long after, he went upstairs. She said that she did not go over to the father and ask him anything about the pictures B was showing him as she was playing with the other boys. She said that the father had not shown them to her or asked her to look at them. She said that the father did not talk to her about the pictures at all before he went upstairs. She said that her friend arrived around this time and it was when her friend was there that she saw the pictures herself and then asked B what the pictures were about. She said her friend was present when B is alleged to have told Ms S what the pictures were about. Ms S confirmed that B showed no signs of distress at all when he was explaining the pictures to her and her friend.
Ms Ssaid she had no discussion with her friend about the pictures at that time. She said they spoke later and her friend was disgusted. No evidence from this friend was adduced by the father in the proceedings.
Ms Ssaid that the father told his solicitor about B drawing the pictures. There is no evidence that the father did anything else with these pictures other than taking them to the social worker some weeks thereafter. There is evidence that he told the DHS case worker about them at a meeting at B's school on 8 August, 2011, and that he had taken B to see the social worker for sexual abuse counselling. There is no evidence that he showed the pictures to the case worker. There is no evidence that he took them to the police.
The social worker's report reveals that at the second session withB and his father on 13 August, 2011, the social worker was speaking to B and asked him who he liked to be with in his family. He records B said his father and that his mum was sometimes bad like his grandfather. Curiously, the words the social worker wrote in quotes, seemingly attributing them to B were "bad, like his grandfather" when they clearly could not have been the direct words B used. He records he asked B what he meant and he said that his grandfather had punched him and had bitten him on his private parts and that he had done this to Johnny too. He records that B then looked at his father and said that he had drawn this. He then agreed willingly to explain the drawings to the social worker.
He then records:
Of the first drawing, he explained that his grandfather had come into his bedroom when he was asleep and had punched him in the forehead and had them bitten him on the penis. Later,[B] said that he had left the bedroom and gone to his mother's room where he saw his grandfather 'pissing' into his mother's mouth. (see drawing 2) In the third drawing he had drawn his mother standing over his grandfather who appeared to have an erect penis. Subsequent drawings (4-5) depict a physical struggle between his mother and grandmother (sic) ending with her pushing him over apparently resulting in him breaking his thumb.
He then records that B looked over at his father who had his head in his hands crying. The father then told him that this was the first time B had told anyone other than himself and his aunt.
The social worker's report reveals that at the third session with B and the father he began by telling B that he wanted to ask more questions about the drawings and B agreed. He produced the drawings and asked B to again tell him what had happened. He records:
He said that one night '[the maternal grandfather] had come into his bedroom (on the ground floor of his grandparents' house) wearing a 'vampire mask' (see drawings 1, 4&5) and had hit him in the head, waking him from his sleep and then had 'bitten him on the penis'. He said that he was upset and crying. After this his grandfather left the room and [B] went to his mother room where he alleges seeing his mother performing oral sex on her father (his grandfather) He said that his mother was naked (see drawing 3)
He then said that later his mother was angry at [the maternal grandfather] (who is alleged to have said "not with my Kids!") and had pushed his grandfather over (down the stairs?) and he sustained a broken finger. [B] mentioned that his mother had put tattoos on his arms to cover bruises.
The social worker records that he concluded the session, advising the father that he would be notifying DHS of the disclosure and would advise the father of the outcome.
Another social worker with many years of experience, including several years in child and adolescent psychiatric health and several years as a family consultant in the Family Court of Western Australia, was engaged by the ICL to see the family and prepare a family report as an independent expert. He saw the family as recently as 7 November, 2011, and wrote a report dated 10 November, 2011, that was in evidence before me. He interviewed B alone in the course of preparing the report. He reported that "[B] was initially open and readily engaged but became increasingly defended and withdrawn around the subject matter of the interview." He reported that B "appeared to fatigue quickly when the issue of the pictures was raised by the writer."
The independent social worker produced to B the drawings said to have been drawn by B and reported that they discussed them one by one while looking at them. He reported that B became withdrawn and defended and appeared to be a little evasive and overwhelmed. He reported that in relation to the pictures B said "I was just joking when I said noona was biting. [J] said it first, he was talking to dad. I just copied him."
He reported that B went on to explain the mask incident was the maternal grandfather having fun and that he reports he is not afraid at the maternal or paternal grandparents' homes. He reported that B explained that he drew pictures at his father's home and they were made up and not based on real events. He reported that B indicated that he did not want to discuss them further. B asked the independent social worker to invite his younger brothers into the room at that point.
I am not satisfied that the account given by the father's sister, Ms S, as to how the pictures came into existence is totally reliable evidence. I do not accept it as true in all respects. I do not consider it at all likely that B would sit down, three months after the time when the events are said to have happened, and draw those five pictures without some form of encouragement or prompting from the adults around him. I consider the timing sits too coincidentally with the evidence about the father being fixated upon the need to prove that the abuse occurred and the pending visit he had arranged with the social worker. I do not accept that the father would not have spoken with B about the drawings. I do not accept that he would not have spoken with his sister, Ms S, about them if she was there with him at the time they were drawn. I am troubled by the absence of evidence that the father took the pictures to the police or to DHS. I am troubled about the absence of evidence from the sister's friend who was said to be present when the child explained the pictures. I am troubled about the assertion that the child exhibited no distress when drawing the pictures or when explaining them to Ms S. I am troubled about the fact that B has written his name on each picture. I have regard to the fact that a few months later, B himself denied to the independent social worker that there was any truth in the pictures or the disclosures he had made about his grandfather biting him. He told him he was just joking. I do not consider the existence of the pictures at all reliably corroborative evidence of the fact that sexual abuse of B as alleged occurred.
I am equally unsatisfied about the reliability of the disclosuresB is recorded as having made to the social worker he saw in the presence of his father in all of the circumstances already discussed. I consider that even that social worker himself was troubled about their reliability in all of the circumstances that became known to him at the trial preferring to leave assessment of the reliability of those disclosures to the Court.
Relevantly, the independent social worker said in his evaluation:
Confabulation (in the psychological sense) is a combination of partial facts (which are frequently derived from everyday occurrences) and imagery developed in the child's mind. This confluence of cognitive processes under the scrutiny and interest of a significant adult, particularly in the context of a high conflict separation, often leads the child to embellish and elaborate innocent oreveryday interactions in an effort to please or match the expectations of the adult. Frequently both child and parent are unaware of the dynamic happening and the process often gets a life of its own and becomes self reinforcing. A key indentifying feature of this process is the ever increasing improbability of the scenarios described by the child which tend to become more elaborate and extreme as the process unfolds. There is a strong flavour of this process potentially occurring in the disclosure and questioning between [B] and his father. This should not be construed as a deliberate attempt to influence the child on the part of [the father] but as a psychological process that unfolds unconsciously between the participants.
I accept that there is merit in respect of those observations of the independent social worker and that it is most probably what has been happening in this case. I accept that may very well explain how the allegations arose in the first place. However, I am not satisfied, having heard all the evidence, that there has not been some deliberate attempt made by the father to influence the child, B, to make disclosures that he was sexually abused by the maternal grandfather. Indeed, to the contrary, I am satisfied in this case that there probably has been some such deliberate attempt made by the father, supported at the same time by other members of his immediate family. That is not to say that I conclude that the father and his family have determined to deliberately fabricate the case of sexual abuse against the mother and the maternal grandfather. I am concerned that might be what has happened but I am not satisfied to the requisite standard to be able to conclude that.
I am satisfied though that the father, dominant and controlling by nature in his relationship with the mother, in a high conflict breakdown of the couple's relationship, in a heightened state of anxiety and bitterness towards the mother and her parents, has become embroiled in a self-perpetuating process that the independent social worker described as "confabulation" in which a fixed mindset that his children have been sexually abused has been formed, from which he has been unable and unwilling to deviate, notwithstanding how unreasonable and irrational the underlying basis for the mindset has been demonstrated to be. He has been completely supported, assisted and reinforced in his position by the immediate members of his family. I am satisfied that he, and other members of his family, have gone so far as making up some assertions of fact to support the fixed mindset and have probably even convinced themselves of the truth of the made-up facts in the course of the months that have gone by. I am satisfied that the father has gone so far as deliberately encouraging B to disclose and to further disclose and that much of B's conduct surrounding disclosure was influenced by B's perception of what his father was wanting of him and what would please his father. I am particularly so satisfied in respect of the drawings and the verbal disclosures to the private social worker who the father took the child to. As such, I am satisfied that there is no reliability in any of the reported disclosures.
I am positively satisfied, on the balance of probabilities, bearing in mind the gravity of the allegations made, the issues at stake and the fact that there is no legal requirement for me to actually go as far as I am prepared to in this case, thatB and his brothers were not sexually abused by their maternal grandfather. I am positively satisfied that their mother was not involved in any sexual abuse of them. I am positively satisfied that the mother and the maternal grandparents have not been involved in a heinous conspiracy to cover up sexual abuse that occurred. I am satisfied that the father and the members of his family have got it wrong and that their unwillingness to countenance the possibility, not to mention the probability, that such is the case, really does reflect on their immediate capacities to support the mother's role in the life of the children.
I cannot help but conclude that truly, somewhere inside his thoughts, the father does not actually believe that the mother and the maternal grandfather sexually abused the boys and that his case has just grown out of his unwillingness to accept the end of the relationship with the mother and his determination to maintain control of the family, particularly the children, through the pain of that separation. Sadly, I have determined that the involvement of the boys in this process in itself amounts to psychological abuse of them. I quickly determined, supported by the evidence of the independent social worker, that continuing to expose the boys to that through a parental-care regime that had them spending three days each week in the household of the father and his extended family exposed them to an unacceptable risk of further such psychological abuse. I determined quickly that they needed immediate protection from that unacceptable risk and short-term respite from the high conflict and instability that such a regime was creating in their lives. That short term respite was to be effected by way of orders providing for them to spend no time with their father and not to communicate with him until early February this year.
I accepted submissions from counsel for the ICL and the mother that the time that the boys spend with their father should thereafter be supervised for a period whilst the father undertakes some therapeutic counselling to help him come to terms with the separation and my decision, particularly my findings in respect of the sexual abuse allegations.
These are all reasons why I determined to make the orders that I did make on Wednesday 7 December, 2011, just before the boys were due to go back to their father pursuant to the interim parenting orders that were in place in the lead-up to and at the conclusion of the trial, even though I had not finished writing these reasons.
I have not yet mentioned the fact that therewere also in evidence before me two forensic assessments prepared by a consultant forensic psychiatrist as part of the DHS investigation of the sexual abuse allegations. Those reports are exhibits 1 and 2 in the proceedings. Exhibit 1 is a forensic psychosexual risk assessment of the maternal grandfather.
Relevantly, that psychologist concluded that she considered him to fall into a low risk category, presenting with few factors known to be associated with sexual reoffending. She concluded that "consideration of the clinical evidence of [his] case, leads the writer to consider that he represents a Low risk of sexual offending against his grandchildren."
Exhibit 2 is a forensic protective capacity assessment of the mother and the maternal grandmother. Relevantly, the psychologist concluded that her consideration of the clinical evidence of the mother and the maternal grandmother's capacity to act protectively of the children led her to consider that they do have the cognitive, emotional and behavioural capacity to meet the needs of each child.She assessed the potential of harm to the boys while in the care of the mother and/or the maternal grandmother as being low. She concluded that there was no evidence to suggest that the mother is not able to appropriately meet the needs of each of her children in a positive and nurturing manner or that the maternal grandmother is not able to provide significant care for the children or maintain a supportive role to them and the mother.
No opposition to those reports being admitted into evidence was made by counsel for the father. No request to cross-examine the forensic psychologist was made. I accept the opinions of that psychologist and have taken them into account in reaching the conclusions that I have in this case.They added weight to the evidence supporting my findings that sexual abuse of the boys has not occurred.
There were also reports in evidence, adduced by the ICL, from a psychiatrist who assessed both the mother and the father not long before the trial. He reported thathe formed the opinion that the father had some ongoing situational anxiety, and depression, and "a rather rigid temperament with fixed ideas about the sexual abuse of his children, but had no major personality flaws". He said he agreed with DHS that therapeutic work should be undertaken by both parents in respect of the children's needs after separation, and in coping with being parents without partners.
In respect of the mother, he reported the suspicion that the mother had a personality disorder that he could not specify and some indications of an adjustment disorder with mixed anxiety and depressed mood.He raised the issue of the mother's alleged compulsive lying and said that if that was accepted as true then she clearly has a personality disorder which involves that. He suggested that if she did have such a disorder she would need some long term counselling to help her with it but that it may well be that any such disorder mainly affects her relationships with adults, rather than interfering with her capacity to cope with children. He said that he gained the impression that there was evidence that she had been a significant primary carer for the children.
I am not convinced that the mother does have a compulsive lying problem. The evidence satisfied me that the mother probably did lie to the husband during their relationship about some things so as to diffuse or avoid conflict with him in a relationship where she felt disempowered, but it did not satisfy me that she actually had a chronic, compulsive lying problem. The father clearly was troubled by lies the mother had told himduring their relationship that he subsequently discovered were untrue. I find that he was able to convince the mother to believe herself that she had a problem with lying when she was in her depressed state in 2010, such that she reported to that effect to doctors she then saw. However, I was not left considering the mother to have a problem with lying that she could not control, particularly after Dr R's evidence. Indeed, at the end of the case, I was satisfied that the father was far less truthful than the mother in respect of all of the evidence each of them gave in this case.
The Mother's Multiple Sclerosis
One of the important issues in the case upon which the father gave evidence that I do not accept was the effect on the mother of her MS. As I have already observed, the father said that the mother could not care for herself or the children because of the impact upon her of the MS. The preponderance of the evidence simply did not support the father's evidence on this. The 'nannycam' video surveillance I saw of the mother in the time just after separation was enough, of itself, to satisfy me that she could care for herself and the children.
Thecollateral evidence established that the mother was the parent who was principally involved in the school and pre-school lives of the boys, not the father. The father did not take real issue with that during the trial.
The independent social worker reported that B told him when he interviewed him that if the living arrangement were to change he would choose to live with his mother the majority of the time "explaining that he was more used to his mother's care because, "I'm used to mum she would do the bath times, bed times, cooking and the cleaning."" Certainly, B appeared to accept that his mother was capable of doing all those things. The same social worker also reported that N exhibited observable distress around separation from his mother. The social worker opined these matters as consistent with the mother being the primary attachment figure for the children. I accept that opinion.
I am satisfied that the mother was the parent who was the principal provider of care to the three children throughout the marriage. The evidence established that after the mother was diagnosed with MS the couple were able tosatisfy Centrelink that their circumstances qualified the father to receive a Carer's Pension in respect of caring for the mother because of her MS. There was no evidence before me as to what that required or what they told Centrelink. Those circumstances do not dissuade me from the finding I have reached in respect of the mother's care for the children during the relationship.
Also in evidence before me was a report from Professor Z, Consultant Neurologist, of the Faculty of Medicine at the University of Melbourne. As I have said earlier, the Professor is the mother's treating neurologist. His report is dated 5 May, 2011. He reported that the mother suffered her first attack of MS in 2004 and has recurrent attacks since then but "fortunately she has not sustained a great deal of permanent disability as a result." He reported her prognosis is really good. He reported that when he saw the mother on 21 April, 2011, her gait and walking had "almost returned to normal." He reported that his physical findings equate to her having a mild disability from the disease. A recent MRI scan was unchanged from a previous one, showing no new MS activity over an 18 month time span, portending for a good prognosis. He reported that the mother's MS does not impact upon her day to day life to a significant degree or in her abilities to care for herself or to maintain day to day care for her children.
The Professor concluded by acknowledging that the disease is difficult to predict with accuracy, that there is a possibility that she may have further attacks which might lead to a worsening of her disability but that at the time of his report he could not see it evolving in the near term to a level which would impact on her ability to care for her children without assistance.
I accept the evidence of the Professor.
At the trial, the father's case was presented as if he accepted that evidence too. He gave evidence that notwithstanding that evidence, the mother used to represent to him and his family that she could not properly care for herself and the children. He effectively said that if that was not true then it was another example of her compulsive lying. I do not accept his evidence that she represented to him that she could not care for herself and the children. I find that the father knew that the mother's capacity might be affected from time to time, as it probably was, but that for most of the time her capacity to care for herself and the children was not so impaired that she could not do it. I find that the father was misrepresenting the true position to the Court when he said that the mother could not care for herself or the children. That was yet another matter that gave rise to my determination that the father's evidence was not all reliable.
The Statutory Pathway and other Matters of Relevance
As I have made parenting orders in this case, I was required to apply a presumption thatit is in the best interests of the boys for their parents to have equal shared parental responsibility unless satisfied that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or family violence as that term is defined in the Act. Clearly, from what I have already said, it is clear that I am satisfied that the presumption in this case was rebutted by the fact that the father has engaged in conduct that I have concluded is psychologically abusive of the children.
I am satisfied that at least for the foreseeable future it is not in the best interests of the three children in this case for their parents to have equal shared parental responsibility. I consider that the best interests of these children, given the acute level of conflict that currently exists between the parents in this case and the level of mistrust the father has in the mother, unfounded as I have determined it to be, require parental responsibility to be vested solely in the mother, subject to her being obliged to consult with the father in writing about any decisions she is going to take in respect of any major long term issue.
As I determined not to make an equal shared parental responsibility order, I was not required to consider whether an order for the children to spend equal time with each parent was in the children's best interests and whether it was reasonably practicable for them to spend equal time with each of their parents. Similarly, I was not required to consider whether an order for the children to spend substantial and significant time with each parent was in their best interests and reasonably practicable.
That left me having to determine parenting orders that I considered in the best interests of the children.
I accept that the father has strong and loving relationships with the children. I accept that he has played a significant role in their early development and care. I accept that the children also have significant relationships with other members of the father's extended family of origin. The boys will, no doubt, miss their father and his family during the time that they do not get to see or communicate with him and them, having regard to the orders I have made in this matter. I was mindful of that in making the orders and conscious of making orders that limited that time to as long as I considered in their best interests.
What most influenced my decision to make the orders that I did was my view that the boys need to be protected from being exposed to the continued psychological abuse that is inflicted upon them through the father's apparent fixation upon the notion of sexual abuse of them at the hands of the mother and her family when I am satisfied that it did not happen and that there is no unacceptable risk of sexual abuse happening in the mother's care.
As the independent social worker asserted during the trial, findings that sexual abuse as alleged by the father did not happen, bring sharply into focus the issue of the father's capacity to support the mother's primary caring role in the children's lives. I considered that currently his capacity for that is indeed so limited that respite for the boys from that incapacity was necessary. I also accept the social worker's opinion that such a finding establishes a need for supervision of the father's time with the children whilst he is counselled around the holding of the beliefs that I have found are unsoundly based. I accept the social worker's opinion that it would be very difficult for the three children to move backwards and forwards between the father and the mother where the father and his family have such firm, negative views against the mother and her family.
Nevertheless, I considered that the relationship between the boys and their father is one that is clearly a meaningful one for them and must be maintained. The orders I made provide for them to begin seeing the father and communicating with him again from the beginning of February this year. Their time with him is to be regular and increasing in duration, though supervised, as can be appropriately facilitated, until September this year. I determined that sufficient time within which the father shall obtain the counselling that was recommended by the social worker that I accept is appropriate. From then, I have determined that a gradual increase in regular unsupervised time with the father is in the boys' best interests. I expect the father will have, with the therapeutic assistance I ordered him to receive, by then have come to terms with the effect of my decision and findings, as well as the break-down of the marriage with the mother and will be able to move forward with appropriate child-focus.
I made an order pursuant to s65L of the FLA for compliance by the parties with the provisions of these orders to be supervised, as far as practicable by a Family Consultant from this Court. By that order, I simply intend for the parties to have access to a Family Consultant to assist them deal with any issues arising in respect of compliance with the orders and for a family consultant to have some contact with them over the course of this year to offer any assistance that might be necessary in ensuring compliance is occurring.
I made a miscellany of orders under the heading 'Specific Issues'. I was satisfied that it is in the best interests of the children for all of those orders to be made. They include, importantly, orders restraining both parties from raising the sexual abuse allegations with the children or in the hearing of the children. They include provision for communication between the parents and for sharing of information in respect of the important aspects of the day to day lives of the children.
I made publication orders so that persons relevant to the conduct of this case and the immediate future implementation of the orders can be shown my orders and these reasons without breach of the non-publication provisions of the FLA.
I considered it appropriate to order that the mother and the father pay the independent social worker's reasonable fees for attending the Court to give evidence and also for them to share equally the costs of the ICL in the matter. Neither the mother nor the father was in receipt of a grant of legal aid. Both were privately funding their legal representation. They have a property that is likely to be sold as part of the division of their property and resolution of the separation of their financial affairs. I considered it reasonable in the circumstances to have them share the ICL's costs equally.
The father and the other members said during the course of the trial that they would accept the Court's finding if it was that sexual abuse of the children as alleged did not happen. It is hoped that they are indeed true to their word. Only if they are, will these three children have the opportunity to grow, having meaningful relationships with both of their parents and each parent's extended families, into happy, healthy, well-balanced individuals.
The orders set out at the commencement of this judgment are the orders I made in the matter.
I certify that the preceding two hundred and eighty one (281) are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 6 January, 2012 in respect of orders made on 7 December 2011.
Associate:
Date: 6 January 2012
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