Unfounded sexual abuse allegations

Unfounded sexual abuse allegations

Olson & Samuel [2016] FCCA 503 (9 March 2016)

The following is annotated. For full case: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2016/503.html?stem=0&synonyms=0&query=family%20law%20act

The father’s criminal history and imprisonment

25. The father has a criminal history. His first convictions for dishonesty offences occurred in 1976 in (omitted) when he was 21 years old. He was sentenced to a suspended period of imprisonment. In 1987 in Darwin he was convicted of numerous counts of forgery, criminal deception and stealing and sentenced to 8 months imprisonment. In 1988 he was convicted of numerous counts of criminal deception and sentenced to 3 months imprisonment. Later in 1988 he was convicted of unlawful entry to commit a crime and breach of parole and sentenced to 2 years imprisonment with a non-parole period of nine months. In 1992 he was convicted of an aggravated assault on a female and fined $500.
26. The father appears to have ceased his criminal behaviour until his offences against the mother and breaches of domestic violence orders in 2010. On 7 June 2010 in the Court of Summary Jurisdiction, Darwin the father was convicted of seven counts of contravention of a domestic violence order and one count of assaulting a female. On 7 July 2010 the father was convicted of six counts of contravention of a domestic violence order. The aggregate sentence for both sets of domestic violence order contraventions was a sentence of 14 days imprisonment and one month imprisonment for the assault. The criminal history produced on subpoena by the police does not state the name of the victim of the assault but I take it to be the mother.
27. It is relevant that in October 2010 the father wrote to one of the magistrates who had sentenced him earlier in the year. The, letter signed by the father, is offensive, obscene and broadly threatening. The matter was reported to police but a decision was taken not to pursue the matter further. The police report and a copy of the letter were produced in answer to a subpoena to police.
28. On 1 June 2011 in the Court of Summary Jurisdiction, Darwin the father was convicted of three counts of contravention of a domestic violence order and breach of a suspended sentence. On 3 June 2011 the father was convicted of two counts of contravention of a domestic violence order. The aggregate sentence of imprisonment for both sets of offences was three months suspended after 18 days.
29. On 10 October 2012 the father was convicted of three counts of contravention of a domestic violence order and two breaches of suspended sentences. The aggregate sentence of imprisonment was 14 days.
30. On 6 July 2015 the father was convicted of eight counts of contravention of a domestic violence order. The aggregate and cumulative sentence was 16 weeks imprisonment suspended after six weeks.
31. Counsel for the father submitted that these were merely technical breaches of domestic violence orders and suggested that the father was the unfortunate subject of a mandatory sentencing regime. I reject that submission and that suggestion. One of the counts was for assault of a female. The noteworthy aspect of the convictions for the contravention of domestic violence orders is that it reflects repeated conduct over a period of years. In my view the repeated conduct reflected in the convictions, as well as the father’s letter to a magistrate, indicates contempt for the law, contempt for measures taken by the state to protect vulnerable members of our society and contempt and hatred for the mother. In my view there is a real risk that the father will continue to breach orders in future.
32. The father’s conduct also indicates a lack of insight into the needs of his children and the effect on them of his continued harassment of the mother. It indicates a deep-seated incapacity to put the interests of his children before his own interests.

The father’s allegation of sexual abuse

33. Illustrative of this conclusion is the father’s allegation that the mother sexually abused X. In his trial affidavit, which was drafted by a lawyer, the father says:
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    In 2011 Ms P and I walked in on Ms Olson and X in one of the bedrooms of her home. I believe that on that date (sic – no specific date or time is given) I saw Ms Olson molesting our son. I walked up the passageway of the house to the last door. X ran out of the room holding his private parts and I looked in the room. Ms Olson was in the room pulling up her jeans. X went and hid behind the couch.

34. In an interview with the family report writer (the father was interviewed on 21 April 2015 and 5 May 2015) the father’s story was more specific and slightly different in detail. He was reported as having said that he saw the mother “leaving the bedroom while still dressing herself and X running from the bedroom whilst attempting to cover an erection”^[1]. X would have been 4 or 5 years old at this time.
35. The father said that he reported this to the Department of Children and Families but the investigation was taken no further.
36. The father’s affidavit goes on to say that he raised this concern before another judge of this court (in what circumstances and when is not explained but presumably in the course of an interlocutory application) and the judge told him “the complaint was scandalous and [the judge] did not take the matter any further”. The relevance of this statement is not set out in the affidavit but one possible interpretation, given that the judge’s assessment was ignored in the preparation of the subsequent trial affidavit, is that what was intended to be implied was that the father had raised this allegation repeatedly and had been improperly ignored by various authorities. If so, that implication is itself scandalous and improper.
37. As noted, notwithstanding a clear signal from the court that the allegation was very serious and should not be made unless there was a proper evidentiary basis^[2] for it the allegation was repeated in the father’s trial affidavit. Further, the father’s trial affidavit says that he would “like Ms P to give evidence on that matter”. No explanation is given in the affidavit about why he did not call Ms P to give evidence. There was no indication that she was unavailable to give evidence. She would, if there was any truth to the father’s allegation, be a critical witness. The suggestion that the father would “like” Ms P to give evidence with the implication that some person, party or institution other than himself was responsible for producing her to do so is, in my view, artful and disingenuous.
38. The father raised this serious allegation. He was in a position to call a material witness in support of the allegation or explain why he had not done so. In the circumstances the inference is unavoidable that the evidence of Ms P would not assist the father^[3].
39. In the trial during cross-examination counsel for the father deliberately refrained from squarely putting the allegation to the mother that the father had observed her engaging in sexual activity with X. Instead, he suggested to the mother that the father may have misinterpreted what he had seen on the basis of his own sexual abuse as a child.
40. The mother would have none of that. She indignantly and passionately rejected the allegation against her and dismissed the suggestion that the father may have observed something innocent and mistaken it. She said he had witnessed nothing at all and she could simply not imagine a father saying such a thing. She denied that the father and Ms P were in her house in 2011. She pointed to the existence of a domestic violence order preventing him from approaching her or any place she was living. I note that the domestic violence order made in February 2010 expired on 16 February 201l. It appears from the police file that she applied for a further DVO on 31 January 2011 and possibly again on 3 March 2011. The police file records a further DVO being made on 20 May 2011 extending to 19 May 2012. It is unclear whether a DVO was operative between 16 February 2011 and 20 May 2011. It might be thought surprising if there was not as the father was imprisoned for breaches of DVOs on 7 July 2010 and 1 June 2011.
41. Counsel for the father, while making passing reference to the allegation of sexual abuse in his written case outline, did not make any oral submission about it.
42. It should also be remembered that the father’s case is that the children should live with the mother in Darwin. That is entirely inconsistent with a belief by any reasonable person that the mother sexually abused X.
43. Inconsistently with the father’s insinuations that the Department of Children and Families or the police or both had not investigated the father’s allegation the file produced on subpoena from the Department of Children and Families and from the police shows that the allegations, made repeatedly over many years, were considered and dismissed by the authorities.
44. The police file records that on 24 January 2012 the father’s then solicitor reported the father as stating to her that “his ex-partner [the mother] had been molesting his 8 year old son… at the home”. On the same day a “child abuse report form” was completed by a police officer from the (omitted) police office. The police officer telephoned the father and spoke to him. The report relevantly reads:
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    [police officer] reports call to Y who confirmed that he did call [his solicitor] and confirmed the details that he had provided to her “the mother of his children is molesting his son”.

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When asked why he thought this and what evidence did he have to substantiate his allegation he stated “my wife has turned my son against me, he won’t even talk to me anymore, so she must be molesting him”. When asked if there was anything else (had he witnessed any assault, detected any evidence, had any [of] the children confided in him or another person about such maltreatment etc) that would support such an allegation he said “no”.

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Y went on to say that his wife had taken his kids from him and that his wife was trying to get his property from him.

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When offered to make a statement to police – Y declined.

45. The report went on to conclude that the information provided by the father could not be substantiated and that the complaint may be false. The report noted that an alert existed on the police information system stating that the father had made false reports to the police in the past. Police officers subsequently attended on the mother and the children for a welfare check. The complaint was put to the mother and denied by her. Neither of the children was interviewed. The report states that the police Child Abuse Taskforce (a special unit of the Northern Territory police) had been asked to review the matter.
46. A file note from an officer of the Child Abuse Taskforce dated 30 January 2012 confirmed that the matter had been reviewed and no further investigation was required and referring to an inquiry of Families and Children’s Services. On 26 January 2012 the relevant police officer had inquired of Families and Children’s Services “intake” as to any relevant history. The following report was provided to him (ignoring formal and irrelevant parts):
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    There have been five previous reports by the same notifier (1), this is the first report that has been submitted by different notifiers although the information originated from notifier (1) [evidently the father]. There is a current DVO between the mother and father and family court hearing set for March. The allegation of the (sic) X being sexually molested by his mother was initially made on 09/11/2011 after 3 previous had been received, the information was that “X came out of the room ‘holding his dick’. The mother followed the son out of the room. Caller stated that the father asked the child why he was holding his dick and child said nothing, father then asked the mother why and she stated that he is itchy. Father does not believe this has (sic) X was not scratching his penis.” (Report received 09/11/2011)

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None of the previous reports contain sufficient information to proceed to investigation. The following notes have been made on the various reports in relation to the notifier are (sic) as follows:

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– That the reporter had no recollection of his previous notifications; the conversation was difficult to track and reporter had changed what reporter was talking about quite often (Report 25/02/2010)

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– The reporter was advised that the matter will not proceed.

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The reporter became angry when advised the matter will not proceed. The reporter angrily stated to the Intake Worker, “fuck you fucking bitch”. (Report 17/03/2010)

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– Caller again became aggressive and swore at worker saying “I’m trying to tell you and nobody fucking listens”. Callers (sic) information was vague and constantly changing throughout the phone call. It appears that the Father is taking various family members to court despite not pressing charges or pursuing the criminal nature of the allegations. Caller was very aggressive throughout the phone call particular (sic) when asked specific questions relating to the incidents (Report 09/11/2011)

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– The notifier (sic) language was slurred and his sentences were disjointed, additionally his tone was aggressive. The notifier terminated the conversation by telling this worker “to fuck off you slut” (Report 24/01/2012)

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In conclusion the reports received in relation to these children appear to be malicious in nature. All concerns are historical and there has been insufficient information on any report to warrant a statutory investigation. This report has been recorded as a duplicate report as no new information has been received furthermore (sic) it is noted that the children are being exposed to systems and interventions which are unnecessary.

47. The chronology in this email is somewhat unsatisfactory. However, there are some points to be noted. It appears the allegation that the mother sexually molested X was first made on 9 November 2011. The complaint as initially recorded simply described the child coming out of a room holding his genitals. There is no mention of an erection. There is no mention of the mother dressing. There is no mention of the child hiding behind the couch. There is no mention of the presence of Ms P. There is mention of a conversation with the mother where she supposedly said the child was “itchy” which is not mentioned in the father’s trial affidavit.
48. It appears the caller, the father, was very aggressive, particularly when asked specific questions about the alleged incident.
49. On 24 January 2012, when a police officer, in response to the father’s allegation, sought details of the allegation the father was unable or unwilling to provide any. He declined to make a formal statement to police.
50. On 4 November 2014 the father attended at the (omitted) police office and made a further allegation which, relevantly, is recorded as follows:
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    Allegation – In 2011 he returned to his house in (omitted) (sic) in company with Ms P (sic) [some information blanked] and entered through the rear to find his wife “frigging off” his then 5 year old son X (sic). (omitted) [another surname used by the father] states when he walked in X stood and covered his privates, but he had an erection at the time. (omitted) states when his ex-wife was questioned she tried to change the issue and said “I’m going to get a job” repeatedly.

51. The complaint was passed to the Department of Children and Families and the Child Abuse Task Force. The complaint was recorded as having been investigated previously and being unsubstantiated.
52. The father has developed his allegation over time. Details such as the presence of Ms P, the “frigging off” and the erection, apparently referred to for the first time in the 17 November 2014 complaint and, in part, mentioned to the family report writer, have been added since the first report.
53. The refusal to make a police statement when invited to do so on 24 January 2012 is, in my view, entirely inconsistent with a genuine belief in the truth of the allegation.
54. I am satisfied that the father’s claim is deliberately and knowingly false. It is intended to harm the mother.
55. The reference to notifications made before 9 November 2011 relates to earlier allegations by the father that the mother had physically assaulted X, including an allegation that she had knocked out one of his teeth. The father’s trial affidavit makes no mention of that allegation but does allege that she assaulted him on other occasions leaving bruises on his arms and legs. Those allegations were previously investigated by the Department of Children and Families and found to be unsubstantiated. The mother denied these allegations and I am satisfied they are false.
56. Disturbingly, the father maintained his allegations against the mother during cross-examination and indicated a willingness to continue to make them. He said that if the mother moved to Sydney with the children he would follow. He said he would live “100 metres away”. He said that he would commence proceedings in Sydney. After the father said he found the proceedings stressful he was asked if he thought further proceedings would be stressful for the mother. He replied “No. I want justice”.
57. Asked if he would refuse to permit the mother to take the children to the (country omitted) for a holiday, as he had once before, the father said he would not agree and he would never “sign a paper at all”.

The Family Report

66. The family report writer interviewed the parents and the children.
67. The family report writer recorded some relevant matters about the father’s history, adding to what was in his affidavit. He appears to have had a very difficult life and suffered a number of traumatic events. The father was a state ward from the age of 12 or 13 until age 17. He said he was the victim of childhood sexual assault while in state care at (omitted) Boys Home ((omitted), South Australia). The perpetrators were subsequently imprisoned. The father also lost his 19-year-old son to suicide. The family report writer observed that the father carries the psychological scars of these experiences and he has a history of depression.
68. The family report writer noted that the father has achieved considerable success as an (occupation omitted). According to his affidavit the father also (employment omitted).
69. The family report writer noted the father’s limited education and observed that he is “neither sophisticated in his thinking nor astute in dealing with non-Indigenous people and agencies.”He also observed that the father “says what he thinks with little heed given to the impact of what he says upon others” and that he is “prone to making comment upon others, based upon his own firmly held beliefs that are derogatory and offensive”. He reported the father’s description of the mother as a “compulsive liar” who is “able to make people feel sorry for her”and that she was a “prostitute” at the time he met her and was currently working as a prostitute in Darwin. It should be noted that no evidence has ever been offered in support of these claims.
70. I think it is fair to say that the family report writer, who is highly experienced, felt some compassion for the father and, quite properly, attempted to put the father’s character and behaviour into some sort of personal, social and historical context.
71. The family report writer interviewed both children. He observed that they appeared to be healthy and well cared for.
72. X presented as a happy, engaging young boy who spoke in a positive manner about both parents. He described spending time with his father as “good”. He said that he enjoyed visiting his father’s relatives, going shopping and doing (hobby omitted) at his father’s home. He spoke positively about living with his mother, describing her as a very good cook. He enjoyed going out to dinner with his mother and visiting friends with her. His comments conveyed the impression that he had a positive relationship with both parents.
73. X described his father as a “bushman” who liked (hobby omitted). He was proud of his father’s achievements as an (hobby omitted). He described his father as “not boring” and recounted going out bush with his father, driving on dirt roads and almost getting bogged. He described his father as “nice” but said that sometimes his father got angry with him and raised his voice. He described feeling “a tiny bit” scared at such times.
74. X described his mother in similarly positive terms. He said she was “nice” but also commented that she was “sometimes sad” for reasons that were not clear to him. He said that his mother sometimes shouted at him and sometimes “smacked” him on the arm but that did not happen often. X was aware that his parents “don’t get on” and expressed the view that if he could change anything about his family it would be to stop his parents from fighting with one another.
75. X was unclear about his mother’s proposal to relocate. He was aware that his mother wanted to move to Sydney with the family. He mentioned he had been there once when he was 6 years old. He said that he wanted to remain living in Darwin. He would miss his school friends and did not want to change schools. He also noted that he would miss his father and his younger maternal cousins whom he sees regularly. He acknowledged he might feel differently if he could come back to Darwin during school holidays but generally appeared firmly opposed to moving away from Darwin.
76. Y, no doubt because of her age, struggled to respond to the family report writer’s questions. She made positive comments about both parents and said she enjoyed spending time with her father. She could not offer a coherent response to the prospect of moving away from Darwin.
77. The family report writer also observed the children with their father. He observed that there was no physical greeting or affectionate exchange on first meeting and the father sat down and made no effort to physically interact with the children but, at the same time, the children appeared comfortable in his presence and spontaneously engaged in conversation and competed for his attention. The father effectively engaged the children in conversation and was responsive to them. The children displayed no sign of discomfort or anxiety and appeared to enjoy his company.
78. The family report writer noted that the mother said that X was sometimes reluctant to go with the father but generally “the children want to see their father”. He also reported that X was“not happy” about the prospect of leaving Darwin and he was troubled by the prospect of missing his classmates and other friends. The mother reported asking X if he would like to live with his father to which he reportedly replied that he likes his father but does not want to live with him. Y was more accepting of the proposed relocation.
79. The family report writer evaluated the proposals of the parties. It appears that at the time the mother was interviewed she proposed to relocate to Perth. At the time of trial her firm proposal was to relocate to Sydney with her new partner. It is noteworthy that the partner was not mentioned to the family report writer and he was not interviewed. The mother’s explanation for that was that the relationship was in its early days at that time. This is considered further below.
80. The family report writer noted that the mother had no family members living in Perth and she would be leaving her established social support in Darwin, including her sister and brother-in-law, and their two children who have a close relationship with X and Y.
81. The family report writer also noted that a further factor weighing in favour of the children remaining in Darwin is the children’s need for an ongoing, positive connection to their Aboriginal culture. He was not satisfied that the mother had given much thought to this aspect of the children’s welfare and did not believe she considered it to be a significant issue. I accept that these are valid concerns.
82. The family report writer observed that the case was a somewhat unusual one in that the mother seeks to relocate for the express purpose of escaping from what “she describes as the father’s ongoing harassment and intimidation of her and her family”. He observed that “[h]er proposal largely rests upon her experience of domestic violence allegedly perpetrated against her by the father”. He noted these allegations were denied by the father and observed that there was “little in the way of independent evidence to indicate that domestic violence referred to has been physical violence against the mother”. However, he went on to acknowledge that “harassment, intimidation, threats and emotional abuse can be equally, and sometimes more damaging than the experience of physical violence especially when perpetrated over a longer term”. He noted that the mother appeared to be suffering a high level of psychological distress.
83. The family report writer concluded that the mother’s proposal to relocate with the children was unlikely to promote their best interests. He referred to the mother moving away from both maternal and paternal family in Darwin, the children’s positive relationship with the father, the father’s poor health and possibly limited life expectancy, the father’s ability to promote the children’s cultural needs as Aboriginal children, X’s opposition to relocation, that the mother’s proposal is founded solely on her desire to escape from the father and what “she views as his ongoing harassment and intimidation”, the father’s statement that he would follow the mother in order to maintain a relationship with the children and the fact of a continuing domestic violence order and the father’s awareness of the risk of imprisonment if he were to breach that order. He recommended that the parents have equal shared parental responsibility and the children remain living in Darwin with the mother.
84. The family report writer acknowledged that, while these factors support the children remaining in Darwin, the mother would struggle to accept such a decision and this could potentially impact upon her parenting capacity by diminishing her sense of well-being. He said it would be “important for the mother to continue to address her psychological distress by attending at counselling”.
85. There are a number of observations that must be made about the family report writer’s conclusion and recommendations.
86. The most fundamental is that the mother said in her trial affidavit that she will move to Sydney without the children if necessary. She repeated this convincingly in cross-examination, citing her inability to cope with the stress of the current situation. The mother was asked what her response would be to the court’s decision should permission to relocate be refused. She said “It will be too hard for me but I will go. I am scared for my life, I am going”. I must accept that this is, at least, a distinct possibility. The father does not propose that the children live with him and no evaluation has been made of the prospect of the children living in Darwin with the father. The report writer, when asked to consider the possibility of the mother moving to Sydney without the children, said that could have very grave consequences and “I don’t know about the father’s capacity to parent”. I agree. I have serious reservations about the father’s parenting capacity and, in any event, the children do not want to live with her father.
87. Further, at the time the family report was prepared the author did not have the benefit of the factual findings I have made. I have found the mother was subjected to multiple physical assaults by the father; that the father has been convicted of many breaches of domestic violence orders intended to protect the mother and, in consequence the father has been imprisoned on four occasions; that the father is contemptuous of courts and their orders and there is a very real risk that he will breach orders in future, including domestic violence orders; that he has deliberately made false allegations against the mother and her relatives over many years without the slightest sign of regret, contrition or understanding of the consequences of his conduct; that the father has harassed the mother and her relatives and that, in consequence of these matters, the mother suffers from a mental illness. In my view, the father is likely to continue to harass and make false allegations against the mother.
88. Regrettably, as the family report writer pointed out, the mother’s relocation to Sydney may not be a real remedy for the mother if the father, as he threatens he will, moves to Sydney, commences further proceedings or makes further allegations.

130. I will make orders for the children to live with their mother and allowing her to relocate to Sydney. I propose to make orders for the children to spend time with the father for one week during each of the NSW school holidays and for one week at the end of Term 1 holidays, 10 days at the end of Term 2 holiday, one week at the end of Term 3 holidays and half of the Christmas holidays with the children to spend the first half of the 2016 Christmas holidays with the mother and the first half of the 2017 Christmas holidays with the father and alternating in that pattern in subsequent years. Until Y turns 8 years old (February 2017) she should spend only two weeks of the Christmas holiday with the father. This means her time with the father for the 2016/2017 Christmas holiday will be two weeks.
131. The father is to pay for and book tickets for the children to fly to Darwin and the mother is to pay for and book tickets for the children to return from Darwin.
132. The mother indicated a wish to travel to the (country omitted) with the children to visit her family. She has done so in the past after being forced by the father to apply to the court for permission. The father said in evidence that he would never agree to permit the mother to travel outside Australia with children. Given the father’s intransigent and unreasonable attitude I propose to make an order permitting the mother to travel outside Australia without requiring the father’s permission.