Father not guilty of sexual abuse charges

Father not guilty of sexual abuse charges

Fyfe & Bartell

Where father found not guilty of sexual abuse charges − where father applies for time with child of subsequent relationship – whether risk outweighs benefit of relationship with father – whether mother have sole parental responsibility.

Evidence of risk

19. The mother’s evidence is relevant to the child’s relationship with the father but it is of little assistance in assessing risk. She was living with the father at the time of trial. The father alleges that the mother attended the trial and knew of the charges. The mother was cross examined about her knowledge of the charges prior to finding Dr J’s report. She repeated what she said in affidavits that she attended only the last day of the trial and accepted what the father said that is they were made up stories. I accept this evidence of the mother. In permitting the child to spend time with the father after separation she did not behave as if she accepted that the father was not a risk to the child.
20. The father’s evidence is that while with Ms S he did much of the care of the two children Ms K and Ms T. Ms S worked long hours, often at night. He denied that he had abused Ms K and Ms T.
21. Ms O, who prepared the two family reports, described the father as being incongruent in his responses and noted that he had been similarly described by Dr J, Dr S, a consultant psychiatrist, Ms V, the family consultant who conducted a conference pursuant to s.11F, and Child Protection Practitioner, Ms W. Ms O noted that Dr K, a Consultant Clinical and Forensic Psychologist had come to a different conclusion.
22. Ms O says of the father that he offered no acknowledgement of the concerns before the Court in relation to the need to appropriately balance the child’s right to enjoy a meaningful relationship with him against her right to be safe from abuse. She said he had an inability to appreciate the complexities of the case and the impact the past allegations and the associated risks has on his relationship with the child.
23. One acknowledgment the father makes shows his lack of appreciation of the boundaries between stepfather and stepdaughters. He acknowledges that he assisted Ms K to shower when she was 11. He said Ms K had head lice and he was helping her rinse the treatment out of her hair. He said she had her back to him. He acknowledged that she was growing breasts. In Dr J’s report she reports the father gave the age of Ms K as 11, 12 or 13.
24. The father also acknowledges that he would massage the two children Ms K and Ms T when they had sports injuries. He said he has very large hands and they may have misunderstood what he was doing. He also explained that one of the girls may have misunderstood what he was doing when he helped to adjust her dressing gown when she was sitting on his knee.
25. The father’s partner Ms A gave evidence. She is from (country omitted) and has a 17-year-old son who lives in (country omitted). She intends her son come to Australia to study. She has been in Australia about six years. She is prepared to supervise the father’s time with the child.
26. Ms A met the father about July 2014 and started living with him in October 2014. She had read the various reports which are part of the evidence in this case. She says she cannot believe the bad things that have been said about him.
27. Ms A works in (employment omitted) and prior to that worked in (employment omitted). At the time of the hearing she had a bridging visa and was applying for permanent residency.
28. Dr J’s report is before the court as an annexure to one of the mother’s affidavits. Dr J did not give evidence herself so was not cross-examined.
29. Dr J prepared the report for proceedings between the father and Ms S concerning their two children B and C. Dr J’s report records that consent orders made 12 January 2009 provided for the psychological assessment in the preparation of the family report.
30. Dr J’s interviews included Ms K and Ms T, their mother and the father. Ms K and Ms T told her in detail of the matters they each said their father did.
31. Ms K said the father first made sexual advances to her as a 12-year-old. He assisted her to shave and began touching her genitals to check. He came to her room, undressing her and massaging her and then made her shower to wash off the oil. On one occasion he put his fingers inside her vagina. Ms K stated her mother was rarely home and had been irritable and argumentative when there. She had no confidence that the mother would support her if she disclosed to her.
32. Ms T said the father touched her, at first in seemingly innocent ways, then began to brush against her breasts. It became more frequent.
33. Dr J’s conclusion and reasons about the abuse by the father of Ms K and Ms T is as follows:
    It is my opinion that Ms K and Ms T show signs and symptoms consistent with child sexual abuse. I would suggest that there was nothing in Ms K and Ms T’s separate accounts that did not tally with a consistent story, as might be expected in rehearsed or manufactured allegations. Indeed their accounts had a congruency and saliency that was difficult to ignore. For example, in addition to their bleak and convincing accounts of each girl’s experience of the alleged sexual abuse, their details and explanations of the sibling conflict, and associations between Mr Bartell’s mood and the potential for sexual abuse occurring, was also consistent with an environment where sexual abuse is likely to occur and predatory sexual behaviour. Consistent too was the girl’s recall of their mother’s psychological absence and the feelings of isolation from support. Their concern about her reaction and lack of confidence in her support was congruent with the accumulation of other factors and details that provided to me a coherent and credible account of sexual abuse.

In many ways Ms S’s presentation seemed to obscure Ms K and Ms T’s accounts. Ms S’s account seemed to expose her emotionality and some personality problems.

I also consider it significant that Mr Bartell’s account was filled with how stressed he had been before the separation and dominated by Ms S during the relationship. One theory of sexual offending, particularly with heterosexual offending between father figures and young adolescent girls, centres on the perpetrator’s feelings of inadequacy. Research in this area suggests that some offenders might have emotional needs that are met through sexual relations with children, with whom they feel respected and powerful. It has also been noted that this type of offending occurs during periods of marital problems.

I also consider it significant that Mr Bartell’s responses to psychometric testing seem designed to mislead.

34. Dr J’s report is not sworn or affirmed and she has not been cross-examined. These are significant limitations but the report has to be taken into account. The exclusion of parts of the Evidence Act 1995 (Cth) by s.69ZT of the Family Act 1975 (Cth) means the report is admissible.
35. Dr S is a Consultant Psychiatrist. He prepared a psychiatric report of the father dated 11 December 2013. His report was verified by affidavit and he was cross-examined.
36. There were two things which suggested to Dr S a possible demonstration of Derailment of Thought or a tendency to an Irrelevant Answer in the father. The first was his difficulty in precisely locating the time when he first met the mother, when he divorced Ms S and he could not give the precise date that he and the mother married. Dr S was also struck by the brief period in which the father appeared to have been unattached.
37. The other matter was the convolution when Dr S sought to find if the father knew what percentage he paid as interest on his credit card. He introduced extraneous material such as what he actually spent the money on.
38. Dr S had concerns about two things in particular. First, the father’s judgement with respect to his awareness of the potential sensitivities of pubescent girls. There are two incidents. The father assisted Ms K to rinse head lice treatment from her hair while she was in the shower. He helped Ms T adjust her dressing gown while she was sitting on his knee.
39. The second thing is the father acknowledges that when he was living with Ms S the children found pornography in a drawer. Dr S considered that some things you do not leave around the house for young children to find.
40. Dr S expressed the opinion that the father should not have unsupervised care of the child. He considered it would be appropriate for a periodic review. He said such a review should be conducted, at a minimum, annually. He set out his thinking behind this view.
41. Dr S considered there was more than one person at risk. The first is Mr Bartell himself. The risk is from others finding out about the allegations against the father. He said one could anticipate that the staff of her kindergarten have been acquainted and no doubt the future primary school was or is likely to be. Dr S said the child may be subject to attention which may not be overtly verbal, between teacher and father. He said this would invite comment to or questions of the child which may lead into a discussion that would not necessarily be to the child’s advantage. Dr S considered that the father’s awareness of such nuances are superficial.
42. The second person Dr S identified as at risk is the mother. Dr S said that if access was unsupervised he could imagine that the mother may have a defensive alertness regarding her daughter’s welfare. This could result in an inappropriate questioning of the child regarding access and implanting in the child less than desirable ideas and anxieties. Dr S anticipated the maternal anxiety was likely to rise.
43. The third person Dr S identified at risk is the child. The father gave Dr S transcript from the County Court of Victoria trial. The transcript contained a reference to the showering. Dr S said he considered this shows a serious lack of judgement and sensitivity relating to pubescent girls, their emotional state and potential consequences. Dr S said the father’s recitation of the event and maintaining the rationale as a defence of his action that the girl had very bushy hair suggests that he had not gained an awareness of the consequences of that act.
44. Dr S concludes his report with this:
    Mr Bartell has been found not guilty on the basis of “beyond reasonable doubt”. These proceedings are in a different court and it is not for me to determine the legal parameters. The question arises whether there is something like a 10% risk to X. Since the consequences of an inappropriate act would be substantial I take the view that even the 10% risk should be modulated.
45. When he gave evidence Dr S described his reasoning behind his 10% assessment. He said he was thinking about the County Court decision and reasonable doubt versus balance of probabilities. He said the balance of probability is 51%/49%. Reasonable doubt would be something greater perhaps than 10%. He said
    “It’s an arbitrary figure that I kind of use in my head. I was just trying to use it illustratively in this case that, if I adopt two possible scenarios. Number 1, Mr Bartell indeed is utterly innocent of this, then the likelihood of-of a disastrous thing occurring is going to be very, very low. If, in fact, he did commit the offence, but it-could not be proven, then the risk of a repeat is there, and the consequence to a young child can be – I mean I have dealt with enough of these people – can be quite catastrophic. It is, frankly, the horns of a dilemma”
46. It was then put to Dr S that the father is 47, the alleged offence was 10 years ago, he has no prior convictions and that he was currently in a stable living situation. He was asked if that would reduce the risks. Dr S said it would reduce the probability but he would need to know the nature of the relationship, to make an assessment he would want more details about the nature of the relationship. He said the father is working, he seems to have a stable lifestyle, he has got a committed relationship, assuming it is good and stable, that would seem to mitigate against increased risk.
47. Dr K is a Consultant Clinical and Forensic Psychologist. She is the Clinical Director of (omitted), a private practice which works with people after being convicted of sexual offences and where there are allegations of sexual abuse. She conducted two assessments of the father both verified by affidavit. The first is dated 16 June 2014 and the second 6 March 2016.
48. She conducted psychometric testing of an empirical nature. Dr K lists 17 separate items for the psychometric testing. Her conclusion is set out in paragraph 192 of her report:
    Consideration of the static and dynamic risk factors with respect to Mr Bartell appears to suggest he represents a Low risk of sexual and violent offending generally. The factors that assist in Mr Bartell obtaining a low risk status are:
    Limited history (charges, no convictions) of prior sexual offences.

No convictions of a sexual nature.

Absence of relative non-sexual fantasy history.

Absence of Antisocial Personality and Psychopathy.

Late onset before allegations of sexual misconduct were made.

His self-report and behavioural evidence of sexual arousal/interest to heterosexual consenting adult relationships.

No evidence in Mr Bartell’s history, self-report or psychometric testing to suggest that he has cognitive distortions supportive of sexual relationships or sexual contact with children.

Presence of pro-social supports.

Reported absence of substance use of addiction.

With respect to the contextual nature of the allegations and parallels to access to the child in question. To this end I note Dr S’s concerns and opinion expressed in the Psychiatric Assessment that Mr Bartell should not have unsupervised care of his daughter X. I also noted Dr J concerns pertaining to direct and indirect risks associated with Mr Bartell spending time with B and C.

49. Dr K referred to the guidelines and standards for the Association for Treatment of Sexual Abuse. These require that no member recommend sole parental care or parental care in the absence of a suitably protective non offending parent or person where prior charges, convictions are allegations of sexual abuse have been made. Based on these guidelines Dr K was unable to recommend that the father be in a position where he engages in sole parental care of the child.
50. Dr K said there appeared limited rationale based on sexual offence risk alone to prevent the father spending time with the child when either, living in the presence of another suitably protective adult in the residential environment, or that there was regular oversight by an external agency that occurred within the home, for example a parenting support service, or when the child is engaged in counselling that provided the opportunity to monitor the fathers interactions and the child’s responses to spending time with the father. The latter could not occur until the child was of sufficient age to have completed protective behaviour education and she is developmentally able to actively engage in counselling.
51. In her second report Dr K made no change to her findings and recommendation.
52. Ms O prepared two family reports and gave evidence. The first report is dated 31 July 2014 and the second 8 February 2016. In the first report she says the father presented as unemotional and evasive. He provided inexplicit responses and reframed information to redirect focus from himself. He proposed that the child spend time with him one night each week and each alternate Friday night until Saturday. Ms O pointed out to the father the issues before the court were more significant than those he raised.
53. Ms O says that observations of the child with the father indicated she enjoys her time with him and this was supported by the mother’s reports. Ms O says the mother has demonstrated an ability to support the father/daughter relationship and demonstrated an ability to separate her own needs and the child’s needs.
54. Ms O had read the reports of Dr J, Dr S and Dr K and the report prepared by the Department of Health and Human Services, Child Protection. This DHHS report substantiated the abuse Ms K and Ms T reported to the police. More recently the Department of Health and Human Services assessed the father as a person responsible for harm and determined that he poses a likelihood of harm (sexual abuse) to the child. The Department of Health and Human Services recommended that the child’s time with the father be supervised.
55. After discussing the various reports Ms O says that the father presented with little insight and demonstrated little to no empathy, indicating limitations in his ability to appreciate the experience of others.
56. Ms O described how incest occurs subsequent to time spent grooming the victim. She says that because of the long term ongoing dynamic of the grooming process protective measures needed to be long term and ongoing. The child will have to be taught and re-taught protective behaviours as she ages. In the context of the risk of grooming Ms O is concerned that the child told her that the father is “my chair” during spend time as she always sits on his knee. Ms O said this could form part of a possible grooming process. It should be avoided for X’s protection and the father’s own protection. In this context Ms O noted the father’s assisting Ms K in the shower and said this indicates he has inadequate parental boundaries.
57. Ms O had not seen the contact service report. The report is now part of the evidence. Ms O conducted interviews and observations on 12 January 2016. Time at the contact centre had occurred on 9 January 2016. The report does not show the child sitting on the father’s knee on that occasion and the several occasions prior. The report shows the father and the child engaged in various activities throughout each visit.
58. The visit immediately after the interviews and observations occurred 23 January 2016. The report says that at the end of the visit the child reached her arms towards her father. The father lifted her up and embraced her and the child wrapped her legs and arms around the father.
59. The next visit was on 6 February 2016. The report records that upon seeing the father the child smiled and sat on his knee and chatted. When it was time to go the child sat on the father’s lap and did not move for several minutes. She repeated several times she did not want to leave the father and wanted to stay with him. The father held onto the child by putting his arms around her. When told by the worker that she would see her father soon, not later that day, but in two weeks the child pouted and clung to the father.
60. Ms O had not seen the report but if she had the evidence she did give shows that she would have had concerns that the events on 23 January 2016 and 6 February 2016 could be part of a grooming process. In her oral evidence she said that normally the child sitting on the father’s knee would be a normal interaction but there was the information that the father had some concerning boundary issues with children.
61. By the time of the second report the child was spending time with the father at a supervised contact centre each alternate Saturday from 10.00am until 12.00pm. By then the father had re-partnered and he was employed as a (occupation omitted) on a full-time basis.
62. Ms O says that the father’s presentation is consistent with his presentation during the initial Family Report interview. He was unemotional and evasive during interview.
63. In her assessment Ms O says there is no information provided in the preparation of the updated Family Report to alter the previous risk assessment and recommendation that the child should spend only supervised time with the father. This minimised the possible immediate risk. Longer term risk to the child’s emotional and psychological well-being was the impact of her learning of the allegations made against the father and the loss she experiences in limitations of the father/daughter relationship. She considered it significant the father had not given consideration to the former and this was characteristic of his tendency to simplify the complexity of the situation.
64. Ms O recommends that the supervised time be at a contact centre. She was opposed to supervision by a family friend. Supervision had been carried out by Mr P and his partner Ms D. Mr P had known the father since he was a teenager. Mr P was aware of the County Court proceedings. He gave a positive report of the father’s time with the child. Both Mr P and Ms H said they had no issues with the father’s time with the child being unsupervised.
65. Ms O recommends time once a month. She said that would allow the child to maintain a relationship with the father but would not be so frequent that she might develop an idealised view of her father. She says that supervised spend time will only permit a relationship between parent and child to progress at a very basic level. Reducing the time and so forcing a further distancing between the child and father would be more beneficial in the longer term compared to more frequent time that perpetuates the child’s fantasy of a more positive and normal father/daughter relationship.
66. Ms O said that the mother was quite candid about her anxiety and her feelings about the child having time with the father and the challenges that she felt wanting to make the right decision for the child in terms of enjoying her relationship with the father but also keeping her safe. Ms O said that if the mother’s anxiety can be alleviated that is going to have positive knock-on effects for the child.
67. In her oral evidence Ms O repeated that her recommendations and evaluation have been based on the various reports she has seen and based on her interviews with the father. She was asked if the change in the father’s life situation changed her recommendation. The changes are that he is in a relationship, is buying a house and undertaking studies to enable him to work in (occupation omitted). His working in (occupation omitted) involved a police check and a (omitted) certificate. Ms O said that this did not change her recommendation.
68. Ms O acknowledged the difficulties if the parties could not afford to pay for supervision. In that case, she said a neutral person would be the best supervisor.

Conclusion

69. The significant best interest considerations in this case are the first two, the benefit to the child of a meaningful relationship with each parent and the need to protect the child from harm. This requires a balance between the two, applying the test the High Court set out in M & M.
70. Some of the additional considerations are relevant. The first is the views of the child. The child wants to see the father.
71. The second is the child’s relationship with each parent and other persons. The child’s primary carer is her mother and the mother’s well-being is important to that relationship. The child does have a very good relationship with the father.
72. The other consideration is the ability of each parent to provide for the child’s needs including her emotional and intellectual needs. The mother’s ability to care for the child could be adversely affected by her anxiety should the child spend unsupervised time with the father. Ms O’s evidence shows this.
73. While these additional considerations are relevant the need to balance the benefit to the child of a relationship with the father against the risk to the child is the principal consideration.
74. The weight of the professional evidence is against unsupervised time. Dr S and Ms O recommended only supervised time. Dr K’s assessment assesses the father as low risk. In taking Dr K’s assessment into account Ms O refers to part of Dr K’s summary and conclusion “notwithstanding the apparent Low risk status it cannot be said… a person represents no risk of committing sexual offence behaviours. Ms O notes as well that Dr K says that the results of the psychological testing contained in the report should be “viewed with caution”.
75. Relevant to Ms O’s assessment is Dr J’s report of her interviews with Ms K and Ms T. Ms O says that Dr J’s report provides a clear commentary of the girl’s accounts of abuse. Both are adults and could have been called as witnesses if they could have been found. The father had at least some of the transcript of the criminal trial because both Dr S and Dr K have seen it. Dr K’s recollection is that it contained some legal argument and evidence of Ms K.
76. Some discussion occurred whether anyone would be expected to have taken steps to have the transcript of the trial or at least the Judge’s charge to the jury produced. Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 was referred to. The High Court in M & M makes it clear that the court’s task is to consider the best interests of the child. While the proceedings have some of the aspects of the case between the parties, the Court is tasked with determining the best interests of the children. I do not consider that arguments about whether one or other party should have produced documents from the criminal trial or searched for and found Ms K and Ms T are relevant. I have to take into account Dr J’s report bearing in mind the limitations I have already referred to.
77. Relevant to assessing the risk is the father’s approach to the issues. This approach is that he was found not guilty and that is the end of the issue. The issue was far more complicated than that. He lacks insight. He lacks an understanding of the sensitivity of pubescent girls, something relevant to the assessment of both Dr S and Ms O.
78. The father’s settled life is relevant to the question of risk. He has a partner who he has been with for a reasonable length of time. He is employed. While that is the case now it may not remain so. The father has had two previous relationships, each of which lasted a number of years and came to an end. The possibility of the father’s life again becoming unsettled is an element in determining the risk.
79. Ms O had the benefit of all the previous reports and of two interviews with the father. Her assessment of the father is relevant and is consistent with the assessment made by Dr S. Central to the assessment are the allegations made by Ms K and Ms T. The allegations are in Dr J’s report. She found some of the father’s explanations odd and considered that Ms K and Ms T had symptoms consistent with sexual abuse.
80. Ms O is concerned about grooming behaviour by the father and his lack of understanding about inappropriate behaviour with pubescent girls. Each of the reports considers that there is a risk of the father again engaging in sexual abuse of the child. The assessments range from low to moderate.
81. I cannot make a finding whether the father abused Ms K and Ms T as alleged. I cannot proceed on the basis that it did not happen. There is a detailed account of what they say occurred in Dr J’s report and Dr J’s assessment is that they provided to her a coherent and credible account of sexual abuse. When that is combined with Dr J’s assessment of the surrounding circumstances, I consider I must proceed on the basis that the abuse may have occurred.
82. I conclude that the risk to the child from spending unsupervised time with the father must be given greater weight than the benefit to her of the relationship she would have with the father if there was unsupervised time. I accept Ms O’s recommendation of supervised time each month.
83. Supervision by a professional supervisor would be best but financially that might not be possible. The mother is aware of the risks and there will be sufficient protection to make an order that supervision be by a professional supervisor or other independent person agreed by the mother.
84. Ms O recommended equal shared parental responsibility in the first report and changed that to sole parental responsibility in the second report. Her reason is that no information was provided to her that the parents had engaged in decision-making since they had separated and it seemed unlikely that they would be able to meaningfully engage in decision-making.
85. The mother and the father do not communicate. An order for equal shared parental responsibility requires the parties to make decisions about major long-term issues in relation to the child jointly, to consult the other person and to make a genuine effort to come to a joint decision. This is the requirement of s.65DAC of the Family Law Act 1975 (Cth). Since the parties do not communicate they do not have the ability to meet these requirements. There would be a risk of further litigation. Making an order which will be least likely to lead to further litigation is a best interest’s consideration.
86. The child’s best interests are met by the mother having sole parental responsibility.
87. Ms O recommended that the mother complete a protective behaviours parenting program and employed the strategies in the parenting and care of the child. Ms O recommends that X attends a protective behaviours programme. I will not make these orders. The mother is aware of the recommendations and I accept that she will take whatever action she considers appropriate.