Thornton & Thornton 2015 FamCA 92
A mother alleged that two girls aged 3 and 6 years had been subjected to sexual abuse by their father. The mother submitted 169 items of information to support her concerns.
The judge found that, as seems almost ubiquitous in cases of allegations of sexual abuse, the evidence consists of regular and increasing statements by the children of repeated allegations to family members and others, all of which are said to be indicative of sexual abuse. Equally ubiquitous in cases of this type, the alleged statements are said to be accompanied by observed behaviours in the children which are causally attributed to the abuse: of nightmares; stress accompanied by physical symptoms; fear of the father and repeated behaviour and statements to the effect that the children do not want to see their father. Contrary to the axiom familiar to science and statistics, correlation is said to imply causation.
The parties called five simultaneous witnesses asserted to have expertise (experts simultaneous). Witnesses included a psychologist whose consultations were initiated by the mother and who saw the two children on nine occasions (treating psychologist); a psychologist jointly commissioned by the parties to produce a family report; a social worker commissioned by the ICL to prepare a family report; a psychiatrist commissioned to prepare a report on the parties by the ICL without seeing the children; and a paediatrician called by the mother.
The judge found that the mother had engaged in deliberate and intentional conduct that sought to influence the words and behaviours of the children about their father, by playing a tape and by “priming” a child before a police interview (coached). The judge found that it is emotional abuse for a parent to bring pressure to bear upon young children, and that exposing children to relentless questioning (interrogate) about their behaviours and relationship with the other parent in the aftermath of a parental separation is also emotional abuse.
The judge noted that some parents think that a moral end of protecting their child justifies aberrant actions such as making an allegation that the other parent has participated in heinous conduct toward the children, but that this is harmful for a child (capacity to protect). The judge considered that the reliability and veracity of evidence can be coloured by a strong belief held by some parents that the end (protection of children from abuse or the defence of false accusations as to abuse) justifies the means (exaggeration or “stretching” or manipulation of the truth). The judge noted that while heinous conduct remains aberrant, the primary consideration for a judge is the best interests of the child.
The judge found that the children had been exposed to a lengthy period of significant post-separation parental conflict for three years, that the children had been the centre of allegations that had created significant animosity between the parents (adult disputes), and that this reduced the likelihood that the parents could meet the responsibility of equal shared parental responsibility for a child as the parents were less able to consult and to makie genuine efforts to come to a joint decision about relevant issues (high conflict couple). The judge found that the mother had taken on the primary role in making decisions about the children. The judge granted sole parental responsibility to the mother.
The judge noted that expert witnesses are subject to a desire to assist, or at least not to prejudice, the party who has called the witness or that party’s lawyers, as well as a natural desire to give a good impression in a public forum (partisan). The judge favoured evidence provided by one witness who did not rely on recall alone but whose evidence was based on contemporaneous notes.
The judge was critical of evidence provided by a treating psychologist who did not make contemporaneous notes. The judge considered that opinions expressed by this psychologist were significantly influenced by the mother who was present when the child was interviewed. The judge noted that the opinions of the psychologist were not gained from an independent clinical process as the assessor did not observe interactions and did not collect reliable collateral information. The judge found that the psychologist lacked expertise on the specific topic and was not able to express an expert opinion on the topic of concern to the Court. The witness gave verbal evidence about disclosures made by a child, but had not entered details of these disclosures in the clinical notes at the time (contemporaneous notes). The expert did not record the questions that were asked of the child (questions asked). The judge found that no evidence was presented that the witness had any expertise to express an opinion about whether sexual abuse had occurred.
The judge found that the process followed by the witness was clinical rather than forensic, and the judge gave no weight to the opinions expressed by the witness (expert evidence unsatisfactory).