Parsons & Chou  FamCA 3 (14 January 2016)
Last Updated: 21 January 2016
FAMILY COURT OF AUSTRALIA
11 December 2015
The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/3.html
- It is the father’s case that the children are at an unacceptable risk of harm in the care of the mother and on this basis it is in the best interests of the children to live with him and spend the limited supervised time he envisages in his orders with the mother. He contends that the risk of harm arises from the disclosures made by B which cause him to believe that B has been sexually interfered with in the mother’s home and his observations of bruises on C which he contends also give rise to concerns about sexual abuse. He also maintains his general long-stated concerns about the mother’s neglect of the children.
- It is the mother’s case that, even taking the father’s case at its highest, no unacceptable risk of harm in the mother’s household arises from the disclosures said to have been made by B and the father’s observations of C. She also contends that the orders she proposes that the children live with her and spend limited supervised time with the father are in the best interests of the children.
- The audio recording is also a critical item of evidence. Although the parties were not cross examined on their affidavits, the Independent Children’s Lawyer cross examined the father about the circumstances in which he made the recording of B’s complaints and that recording was tendered and played in court. The father said under cross examination that he was so concerned about the child’s disclosure on 25 October 2015, that he immediately made a recording of a conversation with the child following that disclosure and prior to telephoning his mother. He said that although this recording was available to him from that time, he did not provide it to police prior to either of the occasions on which B was interviewed by an officer from JIRT.
- The recording made by the father, apparently of a conversation between himself and B, lasts for approximately 10 minutes. In that recording, the father is speaking most of the time, asking questions of the child. Some of the child’s responses can be heard and others are indistinct. In my view the father is generally highly suggestive and leading, questions and cross-examines the child about his answers and on many occasions asks long and complicated questions. The child is heard on occasions to repeat the father’s words but is often silent. At one point the father says “you need to say something”. It is particularly significant that it is the father who first introduces the name “Q” in the conversation. It is also of significance that at one point the child is heard to say “daddy touched [Q] wee wee”. At this point the father introduces the idea of “daddy from mama’s house” and then proceeds to ask further closed and leading questions about this “daddy from mama’s house”.
- I am of the view that the recording which the father relies upon as being virtually contemporaneous with the original disclosure of its nature is highly unreliable.
- The father is leading and cross-examining the child, and the child who is only three years old appears to respond to his suggestions. Critically, the father introduces the name “Q” and when the child nominates “Daddy” as having been involved in the “wee wee touching” the father suggests another person, “daddy at mama’s house” in an apparent diversion from the fact that the child named “Daddy” as being involved.
- Even accepting the father’s evidence at face value or at its highest, his evidence concerning the recording is problematic. The father said that he recorded the conversation on his mobile phone and then transferred it to a USB and deleted the recording on his phone because the memory card was full. He said that he did not think it would be a good idea to retain the recording. He also said that although his phone had the capacity to make a video recording he did not record the interview via video but had “no idea” why he did not do this. He said that he did not initially provide the recording to police because he hoped that B would make these disclosures himself and did not refer to the recording in his affidavit because when B did not speak at the interview he thought the recording was irrelevant.
- In my view, an inference may arise on the father’s evidence alone that the recording may have been made by the father after the child failed to disclose anything at the two JIRT interviews. Police records record that “at the conclusion of the [second JIRT] interview, it was explained to [the father] that due to the lack of evidence, there may not have been anything that happened. It was also explained that investigators would speak with the mother of the children in an attempt to establish the identity of “Q”. With the lack of disclosure, it appeared that [the father] was disappointed that his son did not disclose any abuse at his mother’s residence”.
- There is also no evidence to support the father’s claim that the child repeated the disclosure to the examining doctor at the hospital.
- In my view, greater concerns arise about risk to the children’s emotional wellbeing from the father withholding the children from their mother on the basis of matters which are highly disputed between the parties. As previously indicated, it is the mother’s position that the circumstances in which B came to originally live with his father in September or October 2013 are not agreed. It is the mother’s position that the father withheld the child who was 18 months old from her at this time. The mother says that she did not see B for two and half weeks following this incident and this did not occur until she commenced proceedings.
- In August 2015 when the final hearing did not proceed, the father sought a change in the then current interim parenting arrangements to reduce the children’s time with their mother, which was unsuccessful. The orders made by the Court on that day included an order that the father was to file an Application in a Case if he seeks to change the current interim parenting arrangements for the children.
- Only two months later, rather than file an Application in a Case as ordered, the father simply retained the children. He did not file an Application in a Case until almost two weeks later and retained the children contrary to the interim orders in the meantime. The day after the father filed his Application in a Case, the mother was advised by Centrelink that that agency was aware the children were no longer in her care. It appears that the father advised Centrelink of the children’s circumstances prior to filing this application for a change in orders. As a result of the father’s actions the children spent no time with their mother and did not communicate with her for six weeks.
- I am also of the view that, particularly having regard to the nature of the relationship between C and her mother (who has been her primary carer throughout her life) and having regard to B’s age, there is a real risk of psychological harm to the children if the father simply withholds them from the mother again as he has done recently. In my view having regard to the undisputed facts alone concerning the retention of the children there is a real risk that he may do so again in the future.
- These Reasons relate to the short term suspension of the children’s time with the father in circumstances where I am not satisfied that there is an unacceptable risk of harm to the children in their mother’s care and where the father was not in my view justified in withholding the children from their mother for a period of six weeks. In light of his earlier attempted application to significantly reduce the children’s time with their mother which was not pursued as directed and his delay in bringing an Application in a Case (which significantly appears to have occurred after he notified Centrelink that the children were in his care) raise real risks that he may remove the children from their mother’s care again if he believes that it is justified notwithstanding Court orders. The children are currently enduring a complicated parenting regime which has some features which are not child-focussed in circumstances where the parties are in significant conflict. A suspension of orders in these circumstances until more complete consideration of the interim application is in the best interests of the children.