Alcohol, drugs and sexual abuse

Alcohol, drugs and sexual abuse

Merritt & Holdsworth [2016] FamCA 150 (11 March 2016)

The following is annotated, For full case:http://www.austlii.edu.au/au/cases/cth/FamCA/2016/150.html

THE PARTIES

18. The mother is an intelligent woman and the child is her only child. She appeared nervous and tearful. The father’s counsel in final address acknowledged that by describing her as a nervous and apprehensive person. He acknowledged she was not able to come up with a way that would readily enable the parties to “move forward”. I agree with that perception.
19. The father is not a sophisticated man. He acknowledged heavy alcohol use including at times to drunkenness. He has used drugs. In respect of marijuana, he described its use as being to assist his anxiety. In 2013 when the mother went to E Town to collect her possessions after the relationship had ended, she visited the father’s residence on two consecutive days. During that time, a “bong” and bowl of marijuana sat on the father’s kitchen table. He told the Court that it belonged not to him but to a friend who had left it there. But importantly, regardless of who owned it, it had been left there by the father well-knowing that the mother was visiting with the child. That reflects poorly on his parenting capacity and responsibility as the toddler was wandering the residence.
20. Whilst the evidence supports the conclusion that prior to the birth of the child, both mother and father were involved in alcohol and drug usage, there is no doubt that the mother has refrained since taking on the responsibilities of motherhood.
21. Each of the primary issues of sexual abuse and alcohol abuse was the constant concern of the mother as expressed by her counsel. Despite that concern, little investigation appears to have been undertaken by her. No evidence was called by the mother from any expert about whether the post-January 2014 contact behaviour exhibited by the child could give rise to a concern that he had been inappropriately handled by the father. The mother agreed that she had not seen the father doing anything improper in 2014 but her experience (both sexually and physically) with him heightened her anxiety. Her affidavit evidence made little mention of what really concerned her and that only emerged in cross-examination as the underlying reason for her belief that the child was at risk. She was able to attend doctors during that post-January 2014 period and she was at pains to point out in her affidavit that they had dismissed her fears of any sexual abuse. She did not lead any evidence from the doctors to the contrary.
22. No interrogation took place of the father and no inquiries appear to have been made by the mother, about his alcohol consumption prior to trial.
23. In respect of both of the primary issues therefore, the Court has to do the best it can with the limited evidence it has. In final address, counsel for the mother submitted that her client’s concerns should give rise to caution by the Court but little was said that could enable the Court to provide any solution other than long-term monitoring of the father’s contact.

THE SEXUAL ABUSE ALLEGATIONS

24. In E Town when the child was four months old, the father and the paternal grandfather went to an hotel and consumed alcohol watching a football match. The mother attended at the hotel to collect the father at the conclusion of the football match and on the evidence, I find that he was drunk. In her evidence, she said that the father and the paternal grandfather got into the car. Both denied that was the case. It became irrelevant because it was not the issue in dispute. The mother described driving the father home and at some point, he took the steering wheel and steered the car off the road. An argument then ensued during which the child was taken out of his capsule. When that argument subsided, the parties got back into the car and as the child was crying, the father jumped over into the backseat. The mother said that at some stage, the child stopped crying but then screamed. She said she looked behind her to see what was happening (whilst still driving) and saw the father’s hand inside the child’ nappy with his fingers moving around. That version of events was strongly denied by the father. When she was cross-examined, the mother conceded that the capsule was facing the back of the car and was behind the passenger seat. Her vision must have been limited particularly as she was driving the car but she said she could see the bottom half of the child.
25. Subsequent to this issue, the parties continued their relationship and the father had unsupervised time with the child. The matter of what occurred that day was not raised again. The mother then spoke of the aftermath in which she was dealing with the drunken father. She spoke to her own father but made no complaint about sexual impropriety. This incident gave rise to a separation of three months. Nothing seems to have been said during the separation about sexual impropriety by the father.
26. In December 2011, the mother went back to live with the father. She was obtaining assistance from a counsellor. No evidence from that counsellor was called to confirm a complaint by the mother of sexual impropriety.
27. Over the ensuing year, various incidents occurred at the parties’ home and police intervened. During this period of time the child suffered repeated penis infections on occasions which, on the mother’s evidence, occurred when he had been left alone with the applicant. The evidence supports a conclusion that these infections were not confined to periods of the mother’s absence. The mother approached six or seven doctors but no-one expressed concern. That may be as a result of her own statement [para 45 of her affidavit]:

I was acutely aware of the gravity of the allegation and I was scared to admit to myself or anyone else that [the father] had actually sexually assaulted [the child].

28. Such was the concern by the medical profession that the penis infections were a problem that the child was circumcised in May 2012. In my view, the inference should be drawn that the doctors saw this as a health issue.
29. Notwithstanding the father was drunk on the occasion in September 2011, in isolation, I would not find that the child was at risk in the father’s care on the basis of sexual impropriety. The matter was not raised by the mother for a long time. She harboured concerns and yet continued to allow the father not only time with the child but fostered the relationship between she and the father to the point of reconciliation. The parties went to counselling about their relationship. The mother approached doctors because of penis infections which were happening regularly. No other evidence was called that might explain why the mother took the risk that she would now urge the Court not to take.
30. Despite all of the trauma within the relationship thereafter, no allegations of impropriety of a sexual nature relating to the child were made until the conclusion of a period of contact in January 2014. By this time, the relationship had ended.
31. Between 5 January 2014 and 15 January 2014, the father and his parents went to northwest Victoria and on a daily basis, the father had contact with the child. The mother facilitated that contact even to the point of taking the child back to her home to give the child a sleep. The parties socialised together including the consumption of a bottle of wine together. They swam in a motel pool and went out on social activities in circumstances where the mother drove the family around. A disputed incident occurred which brought all of that more or less to an end.
32. The mother’s evidence was that she attended at the hotel where the father was staying only to find that the door was locked and when she knocked, the child was naked and told her, in answer to her question, that he had not been swimming in the hotel pool. The father denied that. The father said that he had put the child in the shower because he had been in the pool and hence the child was naked. He described having taught the child to “shake his willy” as part of what he described as toilet training. Having regard to the father’s background and his lack of sophistication, it was hard to be critical of his attitude.
33. Although she did not specifically accuse the father of any impropriety, the mother said that her suspicions were aroused because subsequent to that day, she found the child with an erect penis and carrying out actions she described as trying to masturbate. That was the explanation that she gave in the witness box but in her evidence in chief [at 54] she said:

I noticed that [the child] was pulling at his penis repeatedly when I went to change his nappy and hitting at his genital area. I could see that these actions were painful to [the child] but he would continue to do it. [The child} had not previously been interested in touching his penis when I try to change his nappy. [The child] was pulling his skin over the tip of his penis and making his penis erect. He had never done this before. I then made the decision to believe my suspicions and cease time between [the father] and [the child].

34. The mother then gave a confused version of what followed. None of her concerns were raised with the father. She attended at a domestic violence unit to seek counselling and said she made an allegation that the child had been sexually abused. No evidence was called to corroborate that. She said the counsellor brought in a police officer of the SOCIT unit who took a statement. That statement was not in evidence. All parties agreed to tender [ICL1] the SOCIT report which simply confirmed the following:

[The mother] would like [the existing contact] to continue but the change in the behaviour of the child during the last period of access has caused her some concern. [The mother] is basing this on the fact that when the child was four months old [the father] has masturbated the child in order to soothe him. This incident occurred in Western Australia prior to [the mother] leaving this relationship.

35. It was not suggested in the mother’s evidence that the 2011 incident was done to soothe the child nor that masturbation was his purpose on the four month old child.
36. The SOCIT reporter went on to describe the mother’s belief but acknowledged that there were no direct witnesses to any of the incidents. The police were aware of the statement that the father had said that he had been teaching the child to “shake his willy”. The police were aware that the mother had observed the child “masturbating”. The police indicated that there had been “no disclosure” by the child but then added:

[The mother] has concerns that the child may have been sexually abused and appreciates that she may be reading too much into the current behaviour of the child with respect to the most recent access visits he has had with his father.

37. The father became aware of the allegations only (he said) when he read the mother’s affidavit. He had to obtain an order of the Federal Circuit Court to resume his relationship with the child. For over a year after the January 2014 contact period, the mother refused to allow the father to have any time with the child at all. The father then issued the proceedings and Judge Maguire on 5 March 2015 made an interim order resuming the father’s relationship. The proceedings came back before Judge Maguire on 9 April 2015 at which time, the mother consented to an arrangement for the father to have time with the child. Again however, that was in the presence of his parents.

FINDING

49. In my view, none of the evidence supports a conclusion that there is a risk of sexual abuse to the child in the father’s care. The incident in 2011 was the catalyst for the 2014 accusations but as earlier observed, the mother sat on those and called no evidence to indicate that during the period of time up until 2014, she sought help or made complaint about that sort of issue. The 2014 allegations arose as a result of an incident in which the mother thought the worst of the father heightened by the behaviour of the child subsequent to the contact. The mother had doubts herself at that stage and no evidence has been called to indicate that that sort of behaviour by the child was and is consistent with sexual abuse. The penis infections cloud the mystery but ultimately, no medical evidence was produced to indicate that the Court should be so concerned about such a risk.
50. In my view, there is not anywhere near sufficient evidence applying the tests to which I have just referred such as to make a finding that the child is at risk in the father’s care as a result of sexual impropriety.

ALCOHOL PROBLEMS

51. In the space of 16 years, the father has been caught three times driving a car when he was affected by alcohol. His explanation for two of those was that it was a “mistake” or a “silly decision”. Those mistakes ignore the risk-taking and danger to others because (it would seem) on both occasions, he was not drunk to the point of inebriation. The conclusion must follow that he took a conscious risk rather than made a mistake and it certainly was not silly; it was deliberate. With a history of alcohol use and police intervention, mistakes do not happen. The father has had alcohol counselling and attended a community-run course. His ability to describe in evidence what damage was being done to him and others by his alcohol usage was limited.

THE EVIDENCE OF DR F ABOUT ALCOHOL ABUSE/USE

52. Dr F is a forensic psychiatrist. He read the affidavit material of the parties that had been filed in the Federal Circuit Court in March 2015 but none of the trial affidavit material. No party suggested his opinion was consequently flawed.
53. Dr F was apparently engaged at the request of the father’s lawyers to undertake a psychiatric assessment. No psychiatric disorder was found. However, Dr F went on to express serious concern about the father’s alcohol consumption.
54. Dr F interviewed the father who told him that he consumed alcohol most days whilst working in E Town typically between 2 and 15 beers, but more on weekends where he “lost count”. Notwithstanding that, the father was able to stop drinking for four months in 2013 and saved money but then resumed the drinking pattern such that he was consuming alcohol most days of the week and up to ten beers on weekends.
55. Dr F said that the father recognised that his drinking pattern was unhealthy but he did not perceive it as a problem. Ironically, in the context of the way the mother put her case, the father was recorded by Dr F as saying:

[The mother] used to label him an alcoholic. He refuted such an assertion; rather he told [the mother] he was a “piss head”.

56. As for the future, the father told Dr F that he anticipated no difficulty in being able to remain alcohol free for 24 hours in advance of contact with the child nor did he expect difficulty stopping for weeks duration.
57. Dr F opined:

[The father] ideally needs to reduce his alcohol consumption both for his health, and in the interests of being a competent and sober father for [the child]. He suggested that he would have no problems moderating his alcohol consumption in the event that he was granted contact with [the child], but one can anticipate some difficulties with cravings and possible withdrawal. He proposes to have episodes of extended contact with [the child] for holiday periods. I would advise him to engage in alcohol counselling to facilitate changes to his drinking patterns and improve his capacity to stop drinking when required.

It is difficult to offer an opinion in regards to whether [the father] requires contact with [the child] to be supervised. He is likely to be able to function adequately without supervision, but given the germane alcohol issues, it might be prudent for supervision to be required until there is confidence that his alcohol issues are effectively addressed.

58. The father proudly indicated that he had as a result of that advice, gone without alcohol for a month. There is no evidence of cravings or withdrawal problems.
59. In addition to what Dr F said, two other examples will suffice to explain the Court’s concern about simply trusting the father to have unmonitored time with the child.
60. First, during the tense problems within the relationship in E Town, the father said that, as alcohol consumption had been identified as a problem, he and the mother agreed that if he was going to consume excessive alcohol, he would telephone her and let her know that he was coming home from his drinking venue and that he would sleep on the couch. That agreement fell apart when, on his arrival, the mother had hidden the key. Curiously, the parties litigated over what was said and which part of the house the father had banged on to gain entry. Realistically, the only significance was that he was removed by the police upon the mother’s telephone call. The details of the police intervention were remarkably ignored in the evidence. The “arrangement” between the parties was also the subject of some dispute but there is no doubt that the mother lived in an alcohol-fuelled and aggressive environment. To the extent that the father maintained the mother was a willing participant (and there were a number of incidents where she painted a very confusing picture) I am satisfied that she had a reasonable fear of the father particularly when he had been drinking and her position now, is one of palpable fear of his presence.
61. The second incident relates to police intervention against the father for possession of alcohol on restricted land associated with an indigenous community. He conceded the police intervention resulting in a fine but explained that it was the doing of his employer. He acknowledged the land was restricted and that he was engaged on a worksite there. His attitude was one of complaisance. That, and all of the other focus of his alcohol use, leads to a conclusion that the Court should be cautious about his time with the child for the very reasons as expressed by Dr F. I accept the father’s evidence and that of his mother, that his consumption has been curtailed. He proudly said that he was now drinking mid-strength beer. He explained his consciousness of work obligations and the need to rise early as to why he thought he had the alcohol under control. He agreed he had consumed a limited number of drinks during the hearing over the evening meal period but then acknowledged he had had a fair bit to drink at his sister’s engagement party.

THE EVIDENCE OF MR G

62. In relation to alcohol, Family Consultant Mr G could really only repeat the views of Dr F.

THE FATHER’S CONSUMPTION OF ALCOHOL SUBSEQUENT TO MARCH 2015

63. One thing that must be said about the father and, to his credit, is that as a result of the court order restraining him from drinking alcohol when he had possession of the child, he did not drink. That conclusion was supported by his parents and it was conceded by the mother that at handovers, she had not seen indications of drunkenness. Importantly, she led no evidence that the child said anything consistent with alcohol consumption. No evidence was led by the mother about the hotel bill, grocery bill or restaurant bills as might have been identified in credit cards to show alcohol consumption. The father’s parents were able to say, without serious challenge, what he had been doing.
64. I find that the father has acted responsibly with the child. It is not this Court’s function to moralise or concern itself with wider social issues about alcohol consumption. The issue is whether or not the Court can be confident that “mistakes” will not recur. Having regard to the history and the limited time that has elapsed since the maturation process of the father began in 2015, I find it is still early days. How long should elapse before that confidence could be comfortably accepted on the balance of probabilities is difficult to say but in my view, it has to be a year. There are years of travel ahead of the child over long distances and possible trips by aeroplane. All of those trips may be problematic if the father consumes alcohol even in small amounts. Thus, the reservation of the Court ought be obvious.
65. There is no simple answer. The mother’s view was that the father should not only attend counselling but enable her to have access to the counsellor to inquire as to what was going on. The father agreed to an order for a report to be provided at the point at which the unsupervised time begins. The father agreed to an order that the counsellor provide an indication to the mother if the father ceased the treatment or refused to comply with any reasonable direction. The Court cannot assuage the mother’s concerns but based on the evidence of the father, his parents, and Dr F, it is likely that the father will comply with an order that he not consume alcohol at any time that he has the care of the child.
66. In addition, there was some dispute between the parties as to whether the order should be made precluding consumption of alcohol for 48 hours prior to the commencement of the contact or just 24. The father clearly indicated that he was able to manage 24 hours but in my view, to show how serious the Court is about the issue, 48 hours seems more reasonable. If the father is going to be driving for long periods such as the nine hours between Canberra and far northwest Victoria, he cannot afford to have any effects of alcohol hindering that driving. Twenty four hours may therefore not be sufficient. There was certainly discussion during the hearing about the prospect of the father flying the child backwards and forwards but as the Court will have no control over that situation and nor will the mother, my view is that the Court should take a cautious approach. That cautious approach can see the father’s time build up but with an absolute prohibition on the consumption of alcohol before and during the time with the child. No party suggested the time for absolute prohibition should be limited and I consider the father’s problem is sufficiently serious to leave that to the parties to determine when, if ever, that restriction is removed.