High conflict leading children to make allegations
Are the children at risk of physical or emotional harm in the care of either of their parents?
- As was properly put to the Court by Counsel for the Mother where allegations of this type are made, that the Court was unable to make a finding that substantiated the allegation of sexual abuse is not the end of the Court’s considerations.
- In M v M (1988) FLC 91-979, the High Court per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ held at page 77077 as follows:
… the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.
- Having observed that whilst there will be cases where the Court will be able to make a positive finding that the alleged abuse is well-founded or cases where such allegations are groundless, there will be many cases where the Court cannot confidently make a finding that sexual abuse has taken place. The High Court held in M v M (supra) at page 77081 that:
… the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk.
- The High Court considered the many efforts by the Courts over time to develop a ‘formula’ to define with greater precision the magnitude of risk which would justify an order that a child not spend time with a parent and held in M v M (supra) at page 77081:
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This imposing array indicates that the courts … will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
- The Full Court of the Family Court in the matter of B v B (1993) FLC 92-357 confirmed at 79778:
The “unacceptable risk” test is therefore the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
- As has been set out in this judgment, having considered all the evidence, there cannot be a finding made that the Mother sucked Y’s penis or licked Z’s vagina.
- When considering the description by X and Y of the Mother sucking Y’s penis, Dr R and Ms E both proffered the view that it does not have a sense of classic sexual abuse or sexual gratification. Both spoke to it in terms of “an unusual event”, of it being “bizarre” and of it not being sexually based but rather the possibility, if it had occurred, of being a momentary lapse, of it having been misconstrued by the children or behaviour that is questionable.
- There is no other allegations that the Mother has at any other time acted in a sexually inappropriate way towards any of her children or ever.
- In those circumstances I am of the view that the Mother does not pose an unacceptable risk of sexually abusing any of X, Y or Z.
- That I am satisfied that the Father has not coached X, Y and Z to make unfounded disclosures of abuse by their Mother is well set out in this judgment.
- These two findings however, do not see the end of the question as to whether X, Y and Z are at risk of harm, either emotionally or physically, in the care of the parties.
- If it is accepted that X and Y are manufacturing stories of abuse by the Mother that aren’t actually happening, the question for the Court that then arises is why are they doing this? I have set out Ms E’s evidence previously in this judgment but I will repeat it again here because it goes to the very core of the unbelievable emotional and psychological damage that has been occasioned to these children as a result of both parents’ inability to properly manage their separation. Ms E’s evidence is as follows:
“I think that they’re trying to organise their own environment. Two dud parents. Nobody’s making up their minds. They’re not behaving properly. They’re arguing. There’s endless difficulties. What do they do about it? … The children have learnt that if they say “A” to Mum she gets all uptight about a motor car and a driver and there’s a hole in that whole narrative about that, and if they say “B” to Dad there’s something else. There’s lots of attention, and there’s lots of consequences that follow through for the children. … It’s the behaviour of the parents as individuals and collaboratively; it’s the children’s desire to find a solution; it’s the children’s anxiety and discomfort about the process and it’s the children’s own sense of what they’ve experienced.”
- Because X and Y’s parents are so hopeless, so embroiled in their dysfunctional, distrustful, hating, accusatory, blaming, obsessive hate-filled relationship, they have not been able to make any decisions that are in the best interest of their children. X and Y have worked out, in a really harmful way how to achieve the outcome they want in the absence of their parents’ ability to make those decisions for them.
- Despite the Mother’s protestations to the contrary, during X, Y and Z’s lifetime there have been extended periods when she has been emotionally unavailable to them because of her own health issues. I am also satisfied there have been occasions where she has exposed X, Y and Z to unacceptable behaviour including anger, yelling, abuse and physical violence.
- In relation to the latter there is an incident that occurred in September 2015 which was the subject of findings made by me in the previous judgment. This relates to the incident at the (omitted) shop where X and Y allege the Mother left them alone for a short period of time and then afterwards in her car punched X to the side of the head.
- During the course of this hearing the Court had played to it a VARE tape made by X in May 2016. Much of that tape was devoted to the allegations the Mother sucked Y’s penis. However, X discussed the incident in the car at some length as well. X’s statements about his mother hitting him were compelling.
- In Ms E’s Family Report she states that X remains angry to this day about this incident. Ms E’s was satisfied that the Mother had punched X on that occasion.
- DHHS who investigated the incident substantiated X’s allegation that the Mother hit X on this occasion.
- This assault occurred at the time the Mother’s behaviour was dysregulated and she was acting in such a way her own treaters were concerned she was a risk to the children.
- It was submitted on behalf of the Mother that the principle of res judicata meant the Court was bound by the finding in paragraph 351 of the 11 December 2015 judgment that:
“In all these circumstances, the Court cannot be satisfied that the Mother physically assaulted X and Y in March or September of this year.”
- In the Full Court decision of Reid v Lynch  FamCAFC 184 O’Ryan J at paragraph 228 explained the rule as to res judicata as follows:
“The rule as to res judicata is that, where an action has been brought and judgment has been entered in that action, no other proceedings may be maintained on the same cause of action: Jackson v Goldsmith  HCA 22; (1950) 81 CLR 446 at 466 per Fullagar J dissenting, cited with approval in Port of Melbourne Authority v Anshun Pty Ltd  HCA 45; (1981) 147 CLR 589 at 597 per Gibbs CJ, Mason and Aitkin JJ and Chamberlain v Deputy Commissioner of Taxation  HCA 21; (1988) 164 CLR 502 at 510 – 11 per Deane, Toohey and Gaudron JJ. If the cause of action was held to exist so that judgment was given upon it, it is said to be merged in the judgment and no longer has an independent existence. The notion of res judicata is founded on the necessity of avoiding re-agitation of issues and of preventing the raising of issues which could have been and should have been decided in earlier litigation. Res judicata is a defence to a claim in a legal proceeding which, if made, is a complete bar to the claim. There is no discretion in a court to allow the second action to proceed where the cause of action is merged in the judgment of the prior proceedings. “
- In paragraph 230 O’Ryan J held:
Res judicata, however, does not apply in relation to a final judgment with respect to the parenting of children. In Zabaneh and Zabaneh  FamCA 18; (1986) FLC 91-766 Evatt CJ, with whom Fogarty and Renaud JJ agreed, said at 75,587: “The welfare of children may ultimately demand that issues concerning access, custody and so forth, and so on, be reconsidered”. In Rice and Asplund Evatt CJ said at 78,906: “The court cannot determine the welfare of the child by applying some sort of estoppel rule”. In Newling and Newling; Mole (Applicant)  FamCA 21; (1987) FLC 91-856 Nygh J, with whom Barblett and Fogarty JJ agreed, said at 76,467: “Since the principle that the welfare of the child is the paramount consideration applies in all matters affecting children, it is, in my view, not appropriate to speak of cause of action estoppel”: see also McEnearney and McEnearney (1980) FLC 90-866 at 75,499 per Nygh J cited by the Full Court (Bryant CJ, Finn & Cronin JJ) in Marsden v Winch  FamCAFC 152; (2010) 42 Fam LR 1 at 17. To use the language of s 60CA of the Act, “a court must regard the best interests of the child as the paramount consideration”.
- In the High Court decision of the The Queen v Bell; Ex parte Lees  HCA 26; (1980) 146 CLR 141, the Court was considering the question of whether legal privilege prevented a solicitor disclosing the address of a mother wo was over holding a child in breach of an order of the Family Court that the child live with the Father.
- Justice Gibbs, having discussed the decisions of Burton v Earl of Darnley (1869) LR 8 Eq 576n and Ramsbotham v. Senior (1869) LR 8 Eq 575 where it was held that a person who conceals the whereabouts of a ward of the state has not privilege and neither does their solicitor, held at paragraphs 7-8 as follows:
“7. I am unable to see any distinction, for present purposes, between the position of a child who has been made a ward of court and that of a child in relation to whom an order for custody has been made under the Family Law Act 1975 (Cth), as amended (“the Act”). In both kinds of case the court must regard the welfare of the child as the paramount consideration. The privilege is inapplicable, in the case of wardship, because the case goes beyond, “mere questions of civil right” and because the privilege, if given effect, might frustrate the efforts of the court to secure the benefit of the child and might have the result that the child remained in conditions detrimental to his or her welfare (cf. Ramsbotham v. Senior (1869) LR 8 Eq, at p 579 ). Exactly the same considerations apply where an order for custody has been made under the Act.
8. …the public interest in securing the welfare of the child, and in ensuring that an order made for securing that welfare is not deliberately flouted, prevails over the competing public interest that confidential communications between solicitor and client should be protected from disclosure in order that members of the public may be free to seek that legal advice without which justice cannot properly be administered.”
- In matters under Part VII of the Act the welfare of the child is paramount. A principle or rule of law cannot outweigh a statutory principle that requires the Court to put the best interests of the child as paramount.
- I am therefore of the view that the principle of res judicata does not bind this Court when there are proceedings before it pursuant to Part VII of the Act.
- There is no doubt in my mind that X and Y have a genuine belief that in September 2015 the Mother punched X to the side of the head whilst in the car.
- A review of all the evidence before me and in particular the additional evidence heard in the current proceedings leads to the conclusion that there is a rational basis for X and Y’s belief that the Mother hit X in September 2015.
- I am satisfied that there have been periods during which the Mother has been less than appropriate in her parenting of X, Y and Z, particularly when her health issues were at her most extreme or during those one per cent moments as described by Dr T in the previous proceedings when the Mother was not well.
- That neither party can see what damage they are doing to X, Y and Z or accept any responsibility for their own behaviours and put the blame for everything that is wrong in their children’s lives fully and squarely at the foot of the other parent means that they both expose X, Y and Z to the risk of ongoing, severe emotional and psychological damage.
- It is clear from the evidence that the Father believes the Mother to be mentally unstable, abusive of her children and capable of the most heinous acts towards them including sexual abuse. He accepts as gospel any complaint X and Y, in particular, make about the Mother’s care of them or threats to his person. He does not hesitate to report what he has been told to the relevant authorities and to put X and Y through the trauma of repeatedly being interviewed by the Police and the DHHS in an endeavour to have his belief of the Mother’s behaviours vindicated and to have her punished for those behaviours.
- The Father exhibits absolutely no insight to the damage this does to X and Y emotionally and psychologically or the impact this has on them and their relationship with the Mother that they love.
- Further, the Father exhibits no capacity to contemplate that X and Y are not telling him the truth about the Mother or show any insight as to why that behaviour has become necessary for them.
- As Ms E so eloquently put it in her evidence when responding to the question from the Father:
“I think parenting is a very complicated process and when you are parenting in a sea of conflict, your first concern needs to be is what I am going to do in the best interests of my child…my very strong view is that it is not in the best interest of any child to be at Police Stations, to undergo SOCIT interviews for things that might have the capacity to be negotiated in a different way with the other parent or where you could use the auspices of the Court you are currently sitting in to address those matters. I think there needs to be a high level of discrimination and good advice before you start sending children of to see specialists endlessly. I think it has acclimatised your children to live in a climate of chaos and I don’t think it has helped the thinking about things. It has not brought clarity and it is emotionally damaging to the children. I mean the conflict between yourself and Ms Vaughan is emotionally damaging for the children and I remind you what Y told me “I do not know who to believe, I sometimes say things just for peace.”