FAMILY COURT OF AUSTRALIA

TENNISON & GOURLAY	[2010] FamCA 127	

FAMILY LAW – CHILD ABUSE – Allegation
FAMILY LAW – CHILD ABUSE – Finding of no abuse	

Family Law Act 1975 (Cth)	

Briginshaw v Briginshaw (1938) 60 CLR 336
	
APPLICANT:	Ms Tennison	

RESPONDENT:	Mr Gourlay	

Independent children’s lawyer:	Legal Aid Queensland
	
FILE NUMBER:	TVC	328		of	2007	

DATE DELIVERED:	9 February 2010	

PLACE DELIVERED:	Townsville	

PLACE HEARD:	Townsville	

JUDGMENT OF:	Mushin J	

HEARING DATE:	2, 3, 4, 5, 8, 9 & 10 February 2010	

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Griffith	

SOLICITOR FOR THE APPLICANT:	Ruddy Tomlins Baxter	

COUNSEL FOR THE RESPONDENT:	Mr Betts	

SOLICiTOR FOR THE RESPONDENT:	Dillon Lawyers	

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER	Mrs Pack S.C.	

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER	Legal Aid Queensland	

IT IS NOTED that publication of this judgment under the pseudonym Tennison & Gourlay is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

Family Court of Australia at townsville	

FILE NUMBER: TVC 328 of 2007

MS TENNISON	
Applicant

And

MR GOURLAY	
Respondent

reasons for judgment pursuant to AN APPLICATION UNDER s 69ZR

1.	This is the sixth day of proceedings with regard to the child of the parties, who was born in April 2004 and is therefore aged nearly six years.  The parties have been separated since the very earliest months following her birth, and it is safe to say that relations between them are extremely poor, to the extent that those relations have been described in Court as being “a war”.  Without detracting from the primary applications which are as to with whom the child shall live, underlying the entirety of the proceedings has been a series of allegations made by and on behalf of the mother that the father has sexually abused the child.
2.	Throughout the life of the child the mother has been the almost exclusive parent.  The child has seen her father at various times, including overnight, but that has been a matter of great contention. The parties have been at loggerheads on just about every issue with regard to the child’s best interests, but it is the questions of, on the one hand, the allegation on the mother’s part of sexual abuse, and on the father’s part of systems abuse, which are the subject of these findings.  
3.	Both yesterday and today the parties sought and were given time out of what would normally have been sitting time of the Court to attempt to resolve the proceedings.  I know nothing of the direction of their negotiations, simply that negotiations have obviously taken place.  
4.	Today, after a further adjournment of approximately half to three-quarters of an hour I asked Senior Counsel for the Independent Children’s Lawyer whether there was any course which I might be able to take which might assist the parties.  That was done particularly with the knowledge of the importance of the allegations with regard to abuse, both sexual and systems.  Senior Counsel for the Independent Children’s Lawyer then sought my leave to make an oral application pursuant to section 69ZR of the Family Law Act 1975 on the basis that my determination of the sexual abuse allegations may assist the parties in the determination of the overall dispute.  Leave has not been opposed by counsel for the father and the mother and I grant that leave.  Further, it is common ground that I should immediately proceed to determine that application.  
5.	It is common ground that all the relevant evidence on the key issues referred to above is now before the Court.  The evidence with regard to sexual abuse comes from a number of quarters.  On the one hand, two paediatricians, a psychiatrist and the family consultant have opined that there is no evidence to support the allegation of abuse.  Against that is the evidence of Ms P, a child psychologist practising in Townsville.  She is the only person to whom the child has allegedly made disclosures of abuse against her father.  
6.	However, the allegations of abuse did not commence simply as such allegations.  On the evidence of the mother supported by her mother, the reason for the original referral to the two paediatricians, and ultimately to Ms P, was that the child was experiencing very serious night terrors which were obviously, and quite reasonably, greatly upsetting the mother and her mother with whom she lives.
7.	The original referral by the child’s general practitioner was to Dr S, a paediatrician.  A further referral was obtained for a second opinion by Dr D who is also a paediatrician.  They advised that there was no evidence of physical sexual abuse and expressed the view that abuse had not occurred.  
8.	Because the mother had not received any satisfaction with regard to the cause of the night terrors, the child was referred to Ms P who specialises in the area of child sleep disorders.  Ms P has produced four written reports. Those reports, together with other documentation, in particular her notes, are evidence before me.  They include Ms P’s list of consultations by way of a statement of the dates on which the child saw Ms P and the amounts charged for them. 
9.	Ms P was cross-examined over several hours in great detail. Both counsel for the father and Senior Counsel for the ICL strongly challenged the entirety of her evidence.  In my view, on all of the evidence and the other material, that approach was entirely reasonable.  The cross-examination was fair and no exception can be taken to it.  
10.	There are a number of errors in Ms P’s evidence which I find make it unsafe to rely on it in its entirety.  In the first place, Ms P did not audio or videotape her consultations with the child.  Further, she has not made a verbatim account of her consultations, but rather provided a bullet-point summary of each of those consultations.  
11.	Next, there are a number of errors and contradictions in her material.  The references in her notes to each of the individual consultations do not correlate with the statement to which I have already referred.  On any view, there are at least three more references to consultations in the statement than there are notes of those consultations.  Accordingly, there is only one of two explanations.  The first of those is that the statement is wrong.  The second is that I do not have any account whatsoever of several of the consultations.  Ms P opined that one explanation for the mistake in the statement may be that it was, in fact, report writing time, rather than consultation time.  Again, the dates do not correlate and I find against that explanation.  
12.	The second explanation on which Ms P opined was that her secretarial staff had incorrectly entered items in the statement.  That evidence was given yesterday. This morning Ms P resumed her evidence and swore that she had gone to her office and spoken to the present member of staff who has the responsibility of entering the data in the statement.  I understand that that person is not the one who actually entered the material on the statement in this matter.  Ms P had ample opportunity to reconsider her evidence and give an explanation for the obviously incorrect documentation and did not do so.  Accordingly, I find that I cannot be satisfied that the items on the statement were incorrectly entered.
13.	As I have said, Ms P’s work commenced on the question of the child’s night terrors.  The evidence for the night terrors is nothing better than minimal.  There is one video or mobile phone camera record of that, which is evidence before me.  I have viewed it.  There is nothing exceptional in it and there is no evidence to suggest that at any time during that night terror the child made any disclosure against her father or said anything against him at all.  The mother’s evidence is that there were two other such captures of night terrors on a mobile phone which has been damaged to the point of making the pictures and sound from it irrecoverable.  Accordingly, the evidence with regard to alleged disclosures by the child during the night terrors is so unreliable as to be dangerous to accept.  
14.	The next point is that the initial engagement of Ms P was for the purpose of therapy arising out of the night terrors.  I accept the suggestion contained in cross-examination of Ms P by both counsel for the father and Senior Counsel for the ICL that on all of the notes it is clear that Ms P’s role moved from therapy to forensic collection of evidence to support the allegation of sexual abuse, either during or following the third session with the child.  Since that time, I find that Ms P has become an active and strident advocate of the proposition that the father has sexually abused the child, to the extent that, in my view, she has lost her professionalism and objectivity.  
15.	Ms P has been extremely critical of the Queensland Department of Child Safety and its attitude to this matter.  She has made several mandatory reports following her discussions with the child and the Department has made it clear that they have decided that the allegations are unsubstantiated.  Ms P not only did not accept that but she made a complaint to the Department.  At least in part, that complaint was based on an alleged telephone call which she received from a member of the Department, which is also referred to in her letter of complaint to the Department.  The letter referred to a telephone call in which it was alleged that a member of the Department had telephoned her to say that the Department had been wrong in its treatment of this matter.  I regret to say that on the basis of my criticisms of Ms P, I cannot be satisfied to the requisite standard as to the contents of that telephone conversation.
16.	Perhaps the most serious aspect of Ms P’s involvement in this matter arose out of the contradiction between her stated and actual modus operandi.  In one of her reports Ms P’s specified that she did not ask direct questions of a child such as the subject child in this situation.  That is standard practice.  It is clear on all of the research and other material that in interviewing a person, particularly a young child, on an allegation of sexual abuse, leading questions must not be asked and there must be no directing of the child with regard to what to say.  It is most regrettable that Ms P broke that cardinal rule, and at least, to her credit, in sworn evidence during cross-examination admitted that she had, in fact, acted in that way.
17.	In particular, there are two specific incidents.  The first of those relates to the allegation that the child complained of a “sore bum”.  In her own notes Ms P made it clear that in her own words she introduced the concept of the “sore bum”, having obviously obtained that information from the mother beforehand, allegedly as a result of a disclosure made during one of the night terrors.  This issue of “sore bum” can be later linked to an allegation of the father putting his “finger in her bottom”.  By virtue of the fact that the whole issue was introduced by Ms P without any context at all, in my view this allegation is not made out and it would be highly unsafe and prejudicial to rely on it.
18.	The further and even more concerning allegation occurred with regard to an interview on 28 October 2008.  The allegation was that, according to the note:
Questions were open and not leading, and [the child], with some hesitancy and needing reassurance from me, revealed the following points in the following order:
•	That her daddy punches her in the stomach and says, “I don’t like you.”
•	He puts his finger in her bum.  She was very specific about that it was her bum and not her vagina.  [The child] demonstrated and showed me where.
•	She said it hurt.
•	That she doesn’t say anything to her daddy as she is too scared.
•	When asked how often it happens she was unsure and said “Lots”.
•	He gets her to touch him on his leg, and [the child] demonstrated putting her hand on his knee and said it was on his knee quite clearly.  Several times she linked this to, “Feel it.  It’s nice and smooth.”  (I was unsure how this fitted in.)
•	She said her daddy tried to kiss her on her bum.
•	When asked if he got her to touch him, [the child] said “Yes” and that it was a secret.  We discussed secrets, bad and good secrets, and then [the child] clearly requested that she would tell me the secret if I didn’t tell her mum.  She said, “Don’t tell Mummy.  She will think it’s bad.”  After reassuring her it was all right to tell me, she said he puts her hand in his pants in the front, not the back.  [The child] demonstrated this, clearly putting her hand down the front of the pants.  At this point, she mentions she was scared again. 
•	“Daddy rubs it around and makes noises,” and [the child] made a funny noise.
•	After that, she said it’s finished and she’s still scared.
•	Asked if daddy says anything, [the child] says he says it’s a secret and not to tell anyone it’s a secret.
•	At this point, I asked her if he threatens to hurt her or her mummy or her dog, and [the child] said “No, just it’s a secret, don’t tell anybody.”
19.	To my mind, the beginning of the bullet-point, “When asked if he got her to touch him” is a serious breach of an appropriate modus operandi and ultimately muddies the water to the extent that it is unsafe to accept what follows.  The question should have been along the lines of, “Does anything bad happen when you are at daddy’s house?”.  That did not occur and on the basis that Ms P has admitted those two significant breaches, the first with regard to the sore bum and the second with regard to the hand down the front of the pants, I must question the entirety of Ms P’s procedures.  In light of the fact that there is, as I have said, no video or audio evidence and no verbatim written account contemporaneously, and given that there are admissions on oath from Ms P that she has conducted herself in ways which she herself concedes were not appropriate, her evidence concerns me very greatly.
20.	I referred earlier to Ms P having lost her professionalism and objectivity.  That proposition is best illustrated by her total failure to consider alternative explanations for the child’s night terrors.  The most obvious alternative is a reaction to the "war" being waged by her parents.  There may well be other possible explanations.  During her evidence, Ms P conceded that she should have given such consideration.
21.	I now move to the question of the nature of the finding which should flow from these reasons.  The finding which might be made in this situation is that there is no unacceptable risk.  I now make that finding without any hesitation.  This, to my mind, is one of the clearest cases of its type for a finding that there is no unacceptable risk.  However, Senior Counsel for the ICL and Counsel for the father urge that, taking into account the decision of the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336 it is open to me and I should make a finding on the balance of probabilities that no abuse has occurred.  
22.	On balance, I have come to the view that it is appropriate to make such a finding.  The only evidence of abuse comes essentially from three sources.  The first of those is the mother, the second is the grandmother, and the third is Ms P.  In my view, the mother has been almost fanatical in her pursuit of explanations for these events and, in particular, explanations which include a finding of sexual abuse.  I find that she is wrong, misguided, but genuine.  
23.	I regret that I cannot say the same thing about her mother.  In my view, she has pursued this matter with a degree of fanaticism which has been contrary to the child’s best interests.  She has only listened to opinions which would lead to a complete break between the child and her father and has therefore acted contrary to the child’s best interests.
24.	I have already said enough about Ms P to make the summary of her evidence that it has been, in my view, totally discredited.  I am therefore left with the unchallenged evidence of two paediatricians, Dr S and Dr D, as well as a psychiatrist, the family consultant and the Queensland Department of Child Safety, all of whom have formed the view that there is insufficient evidence to support the allegation of abuse. As already stated, Dr S and Dr D have gone so far as to doubt that the abuse occurred.
25.	There are times when people against whom an allegation of abuse has been made are entitled to a positive finding of no abuse rather than the comparatively inconclusive finding of no unacceptable risk.  The entirety of the evidence persuades me that it is appropriate to make a positive finding of no abuse on the balance of probabilities.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin 

Associate:  

Date: 25 February 2010