The number of Family Court cases involving allegations of sexual abuse allegations has been increasing exponentially, according to Justice Murphy. His Honour said so in the context of a case involving allegations of sexual abuse in which the mother alleged that the child had reported that the father stated that the child would be murdered. His Honour ultimately found that the child was not at risk in the care of the father.
Justice Murphy ultimately ordered that the child move from living with his mother and seeing his father on a unsupervised basis to living with his father.
His Honour stated in the recent case of Donaghey and Donaghey:
His Honour stated:
His Honour went on to say:
His Honour rejected the idea that statements by children about sexual abuse should be automatically accepted:
Justice Murphy ultimately ordered that the child move from living with his mother and seeing his father on a unsupervised basis to living with his father.
His Honour stated in the recent case of Donaghey and Donaghey:
The horrific prospect of error in finding that a person presents no, or no unacceptable, risk of murdering their child is as grave as it is haunting. So, too, a finding that a child is not at risk, or unacceptable risk, from sexual abuse at the hands of their parent. This court deals with people in extremis, and history tells Judges horrifying tales that sick and/or evil parents can do sick and evil things to their children. Findings that a person presents no risk of harm cannot be, and are not, made lightly. Judicial fallibility does not have to be expressly acknowledged to be ever present.
Bearing all of those things in mind, by reason of all of the matters I have discussed, I am as convinced as I can be and with negligible doubt (and, thus convinced to a higher standard than the law requires of me that the father presents no risk of harm to J.
Bearing all of those things in mind, by reason of all of the matters I have discussed, I am as convinced as I can be and with negligible doubt that the father is a loving, caring and committed parent who wants what is best for his son and who, if given the opportunity, will love and nurture him appropriately.
His Honour stated:
The notion that children might be used (directly or indirectly) for the sexual gratification of adults is repugnant to any sane person. To the extent that it is possible to identify or quantify degrees of repugnance, it might be argued that particular repugnance attaches to a parent of a child using or exposing their own child in that manner. Expressed in terms familiar to the [Family Law] Act, the conduct is as complete and repugnant an abdication of parental responsibility as can be imagined. Similar comments apply, of course, to other forms of child abuse. So, too, genuine repugnance attaches – and plainly should attach – to all forms of family violence; it, too, has potentially profound ramifications for children and the potential to harm them on many levels.
As has frequently been commented upon, the number of cases in this court involving allegations of child sexual abuse has, in recent years, increased exponentially. Opinions can be ventured as to why this is so. Included among them is the suggestion that what was once “a taboo subject”, little appreciated or understood - and very rarely talked about - is now significantly less so. Other explanations also exist. Be that as it may, the proliferation of this type of parenting case (and, indeed, all parenting cases where allegations of any abuse or family violence are a central issue) presents significant challenges for this court. Not the least of those challenges – and one evident in this case – is the nature, extent and quality of the evidence from which the court is asked to make findings relevant to those central difficult issues.
His Honour went on to say:
This case possesses characteristics that are remarkably common in so many cases of this type that come before this court. An outline of those characteristics and their applicability here, provide, in any event, a useful background to this particular case:His Honour went on to describe the challenges of reviewing expert evidence on the topic of child sexual abuse:
- The allegations are in respect of a very young child. (In this case, allegations of improper conduct extend back to a time when the child was a baby aged about 15 months (and, perhaps, before – the timeframe for the “bouncing on the stomach” incident is unclear). More recently, the alleged behaviour was perpetrated when he was about 5½ years of age);
- There is no physical evidence in support of the allegations. (Here, despite medical investigation, there is no evidence to support alleged statements by the child that he has been anally penetrated by an adult penis, a stick and an adult hand and/or fist. Further, a police investigation, during which the child was interviewed, resulted in no action being taken);
- The allegations rest, primarily, upon statements made by a child. (Such is the case here.);
- The primary source for reports of what a young child is alleged to have said is a parent or close relative of the child. (Here, it is the mother.);
- The primary source for reports of what a child has said historically is a person who either then, or since, believes strongly that the child has been abused. (Here, the mother’s belief has already been referred to. It is shared by her sister with whom she and the child live and by other family members, principally the mother and brother.);
- Alleged statements which, on their face, are asserted to be indicative of sexual abuse have increased in their frequency and intensity and refer to behaviour of increasing severity and seriousness. (Reference has already been made to the seriousness of the behaviour alleged and to the fact that there are said to be statements by the child reporting his father’s threat to kill him);
- Several behavioural indicia are said to accompany or surround the alleged statements. (In this case, the child is said to be experiencing nightmares and wetting and soiling, associated, it is asserted, with thoughts of his father and, in particular, the idea of the child having to see his father);
- The child is said to be frightened of the alleged perpetrator parent (the child is said to be in real fear of his father);
- There is a stark contrast between the accounts of behavioural characteristics observed by the alleged perpetrator parent and those observed by the other parent. (In this case, the accounts of the child’s reports to the mother of his reactions to the father and accounts of the father and Ms W of those reactions could not be more different);
- The alleged perpetrator parent asserts that the child exhibits no fear with him or her and, indeed, asserts a warm and loving relationship. (Here, the father makes this assertion. The mother asserts that J, aged not yet 6 at the time, “puts on an act” out of fear of his father. In short, she asserts that the child, out of fear of being harmed if his “true feelings” are revealed, is able to fool his father (and Ms W) into believing that he is affectionate and loving toward them);
- The child has seen one or more “therapists” or “counsellors”. (Here the child has seen a psychologist, Mr A, on 22 occasions, recently, weekly);
- Sexual abuse (or, at the least, the possibility of sexual abuse) has been the focus of such counselling or therapy. (Such is the case here);
- The counsellor or therapist conducts the therapy in the belief he or she is dealing with a child who has been sexually abused. (Here, Mr A says he became concerned that the child had been sexually abused during the sessions);
- The consultations have been arranged by a parent who says that they implacably believe that the child (patient) has been sexually abused. (This is the case here – the mother arranged the therapy (on the recommendation of a GP));
- The child has given at least one, and frequently many, accounts said to be indicative of abuse prior to the therapy sessions taking place. (So, too, this is the case here; a complete account of what the evidence reveals the child has said, when, and to whom, will be given later in these reasons);
- Statements by the child to an independent, trained person occur after many statements said to indicate abuse have occurred. (Once again, this is the case here).
In (at least) cases of this type, “well-recognised peer reviewed research” is, in my respectful view, a concept which should cause significant pause for thought. As but one example of the concerns to which I refer, Ceci and Bruck, presenting the Amicus Brief for the case of State of New Jersey v. Michaels, compiled by the Committee of Concerned Social Scientists (2007), say: “It is important to understand that this is a rapidly expanding area of inquiry. Reviews of the literature that were published only a few years ago, are now out of date”. The concern is exacerbated significantly when regard is had to the (notorious) fact that, since the Full Court in B and R made reference to data “... partly constituted by readily accessible public information of which it would be expected that a trial Judge would inform himself or herself...” the sources and volume of “readily accessible public information” have each increased enormously, indeed exponentially. There is no doubt about the volume and accessibility of information on the Internet; the issue is its reliability or, perhaps more accurately, how to assess its relative reliability when compared to other pieces of information also emanating from the same public resource.
At the very least, as it seems to me, when issues as serious as child abuse arise, the introduction of such research as evidence should come about ... by the means of an independent expert who possesses requisite training, expertise and experience in dealing forensically with cases in which sexual abuse of young children is alleged, and who, crucially, as part of that expertise, is also familiar with relevant peer-reviewed research. Crucially, that training, expertise and experience should permit them to properly posit particular pieces of research within the scientific mainstream. Caution is needed on the part of the Court when reference is made to a particular study or studies – even by a properly qualified expert. Such a reference can be of little assistance unless it is known where the study, or studies, sit within the accepted body of knowledge. As the Honourable John Fogarty AM said above ..., “You could fill a library with articles on this topic arriving at differing conclusions”.
It is for that reason, together with the very rapid rate of development in that body of knowledge, that greater comfort is given to judges if regard can be had to meta-analyses – that is, the product of a highly-qualified researcher in the relevant area examining the entire respected and recent literature and attempting to synthesise the findings. (See, as an example Ceci and Bruck, ‘Suggestibility of the Child Witness: A Historical Review and Synthesis’ (1993) 113 Psychological Bulletin 3. Note, though, that by reference to Ceci’s comments above, this particular 1993 study is now well out of date)....
Yet, the issues in cases of this type are profound; a wrong decision about risk could result in a parent who has done nothing wrong not seeing their child, or, a wrong decision about risk could place a child at risk of current, and likely future, harm of very significant proportions. It is plainly neither sufficient nor appropriate for a court, charged with the responsibility of doing justice according to law, to avoid the difficult decisions involved, axiomatically fallible though the process obviously is. But, like most difficult tasks, the process should be facilitated by use of the best tools, relevantly, the evidence upon which the decision can be made.
Deep and real questions surround what is, and what is not, genuine expertise in addressing issues surrounding allegations of sexual abuse and, more particularly, the timing of, and processes employed by, persons who assert “expertise”. A crucial problem in that respect is the expression of opinions about the likelihood of past or future abuse by therapists or counsellors who are consulted (even if with the best or “purest” of parental motives) on the basis that overt behaviours of a child said to need treatment are said to be indicative of abuse, or are accompanied by a parental belief that the cause of the behaviours is sexual abuse.
His Honour rejected the idea that statements by children about sexual abuse should be automatically accepted:
The experience of this court is that the word “disclosure” should be treated with great caution. It is so often a “loaded” expression, often used as if it has, of itself, probative weight. Yet, what is a “disclosure” (or, preferably, “statement”) without a context? (To whom was it made, what circumstances - both temporally and more generally - attend the making of it and precede it; what do we know of the psychological imperatives operating upon the child making the statement; and, of course, how reliable is the report of what was said and its context).
Common experience dictates that stories can, and do, change in the telling; the common parlour game “Chinese Whispers” is a crude, but nevertheless telling, familiar example. A media report during the recent Brisbane floods has a meeting being told that the wall of Wivenhoe Dam was cracking; what in fact had occurred (to the extent that the statement could be construed as having any connection with real events) was that the floodgates had been intentionally opened further. And, that common experience pertains irrespective of what any research might tell us about the reliability of children’s accounts, whether children make errors of commission as well as omission, and the like. The fact that the central issue is something as hideous as child sexual abuse does not mean that common sense or “an open attitude” should be abandoned.Justice Murphy rejected the suggestion that the child had been sexually abused, in part because of what his Honour described as a process of cross-examination of the child by the mother:
The mindset, or psychological matrix, is, in my judgment an extremely powerful factor in the child saying such things as he has (not only to the mother, but, subsequently, to others) and, importantly, the reports of what the mother says she heard. I do not believe for one second that the mother gives a complete and accurate account of what the child said; rather she gives the end product of what he says; the statements made after a process of cross-examination by her. To the extent she contends otherwise, I reject her evidence.His Honour found that the test in Russell and Close was not a "fixed code":
I have absolutely no doubt that the matter just referred to is productive of what might be described as a “family mindset” – that is, a picture of the father shared by the mother’s family including, significantly, BF, the sister with whom the child and the mother reside. BF, NF and GF all expressly state, in their respective Affidavits, that they have never heard the mother discuss the father in a negative manner in front of the child nor do they ever talk about the allegations in front of the child. Similarly, Mr A was adamant, during oral evidence, that, although he had spoken with the mother whilst the child was in the room, the child was a “busy boy” and could not have heard what was said as the mother “whispered”. The reference to a “family mind set” is a reference to a shared set of beliefs and attitudes about the father; the mother’s views and beliefs about the father are shared almost entirely by her sisters. (The reservation arises because each sister said in oral evidence that they have doubts that the father will actually murder his son). But, I have no doubt that, at the very least implicitly and, almost certainly overtly, the child is left in no doubt at all that each of his aunts and his uncle see the father as malevolent, “bad” and/or a danger to him. I have little doubt that the child reacts to that information from his primary carer (and other loved adults in his family) in a manner that confirms the mother’s beliefs and attitudes....
All of the evidence before the court, and my observations, combine to form a picture of a mother who, I find, anxiously and constantly monitors every movement and word by the child that concerns, or might concern, his father.
I have no doubt that the child was questioned, and questioned at length, about the time spent with his father. I have no doubt that, when the mother’s beliefs about the father are “confirmed” by the child as a result of that questioning, he is left in no doubt that the “bad picture” of his father which he consequently presents entirely accords with the mother’s own. I have no doubt that, as a result, the child’s words and actions that are negative or construed by the mother as abuse or threats by his father are confirmed and reinforced by the mother to him.
I think it extremely likely that the mother’s accounts of what the child has said about his father are selective or “skewed” by reason of the processes within her, and within the family, to which I have referred. Equally, I consider that the mother seeks to present them in the worst possible light. Again, I am not prepared to find that she has done so in a conscious, deliberate sense. But, she is so adamantly and single-mindedly blind to any notion other than that the father has abused the child and is a serious threat to him, that, in my judgment, she is simply unable to put anything other than a slanted, unfavourable and sinister interpretation on the things that the child has said. Further, and importantly, I consider that the selectivity employed permits of no adequate examination of the context in which the child’s statements – and, crucially, his initial statements – were made.
I find it inconceivable that this highly anxious mother, who implacably and unshakeably believes that the child’s father has perpetrated the most horrific acts of sexual abuse upon him and who believes that the father will murder the child, has not made those feelings abundantly plain to the child. She may not have used those words, or words like them to him; she may not have “coached” or directly influenced him. But this five year old who, like all children of that age soak up words, actions, nuances and feelings from their primary carer/s and seek to please them, is, in my judgment, left in absolutely no doubt about how his mother feels about his father.
I find it inconceivable that the mother’s beliefs and personality traits have not influenced her conversations with the child, the questions she has asked of the child, and her reactions to his answers, including the statements that she herself records. I consider that, even if she has said nothing directly to him (which I very much doubt), it is almost certain that her reactions (and those of her sisters) to any comments by him about his father (even if benign) have, in turn, influenced the child’s reactions to those questions; he has come to know the responses that accord with his primary carer’s beliefs.
In my view, the principles enunciated in those cases are not a fixed code, the satisfaction of the elements of which must result in the predominance of “genuine beliefs” over other considerations. A “custodial parent” does not, by reason of asserted genuine beliefs, have a “veto” over the legitimate rights of a child to have a meaningful relationship with his or her other parent. That was, I consider, true when those cases were decided and is even more true now in the light of the Act’s Objects, Principles and Considerations.
Further, to the extent that the comments by the Full Court should be seen as suggesting that “genuine belief” can be decisive in determining best interests, a significant distinction should, in my view be drawn between cases whose circumstances reveal what is called in those cases “a custodial parent” or a “primary caregiver” and the issue to be determined is time to be spent with the other parent. When the issue of where a child will live is very much a live issue between two parents, greater circumspection is, in my view, needed about applying strictly the words used by the Full Court in Russel v Close and Re Andrew (where that situation did not pertain). So much is made clear by the Act as it now stands and, even before its most recent substantive amendments, by what is said at points 4ff of the passages from In the Marriage of N and S quoted above.
The mother’s belief is, I think, genuine. But it is also entrenched, and, on her own admission, not susceptible to change. There is, then, an element of “wilful blindness” about it. Where a finding can clearly be made that there is such an element in a belief system combined with an adamant refusal to countenance any attempt, including through counselling, that might seek to challenge those beliefs, the application of the principles relating to the role of “genuine belief” is in any event, in my view, called into question. That can be seen from the breadth and multi-faceted nature of the enquiry envisaged by the Act in determining best interests.
