Pollock & Breen-Pollock No 3. 2014 FamCA 1026

The case involved allegations that the father had participated in sexual abuse with children aged 7 and 6 years at the time of the hearing.  The parents separated after the mother expressed concern about the way the father had applied cream to a child’s nappy rash when the child was aged 5 years.  The mother left the family home taking the children with her and later applied for an AVO stating that texts sent by the father were harassing for her.  The mother applied for the children to live with her and for the father to have only supervised access with the children as he posed an unacceptable risk to the children.  The father applied for the children to live with him saying that it was unlikely that the mother would support the children having an ongoing meaningful relationship with him. The father alleged the mother held unreasonable concerns.

The mother’s allegations were investigated.  A family assessment was conducted, leading to a recommendation that the father spend supervised time with the children followed by unsupervised time.  The mother then withheld the children for a period of 11 weeks.  The mother was ordered to engage in therapy but did not engage in therapy (therapy for parent).

After the separation the mother alleged that a number of other incidents of inappropriate sexual behaviour had occurred towards the children but these had not been reported to authorities.  The father acknowledged that the mother had expressed concerns about his parenting of the children, but not about inappropriate sexual behaviour.  The father stated that the couple relationship ended when the mother made sexual allegations about him.

Investigators who interviewed the child said the child reported that her father used his finger to put cream on her bum when it was itchy.  The allegation of sexual abuse was not substantiated.

The father acknowledged that the mother had made the following complaints: that he would lie on the bed under the covers with the children when putting the children to bed; that the children would sit on his lap while both watched TV; that when bathing the children the father used his hand rather than a sponge;   that the father walked around the house naked (sexualised behaviour by parent).

The mother reported observing sexualised behaviours by children. The mother reported that one child tried to put a toy into her vagina at the age of three years.  Both girls inserted their fingers into the other’s vagina or anus while in the bath.  Both girls caressed the other’s vagina.  The mother reported speaking to the father about these incidents, and that he responded that it was normal for children to do this type of thing. The father denied this conversation.  The mother reported that these sexualised behaviours increased after the children visited the father.   Some reports of sexualised behaviour were provided by people other than the mother.  One child was found on three occasions at a child care centre to be lying on top of a boy and kissing him, and she accepted being discouraged from doing this.  The second child was observed at the centre rubbing a toy over her private parts and smelling it soon after the marital breakdown.

The mother noticed a rash on one child’s upper thighs and upper arms, and took the child to the doctor.  The doctor diagnosed a virus that is common and that is usually transmitted by sharing swimming pools or towels with other infected children, but can be transmitted by sexual activity.  The mother did not follow the doctor’s recommendation to consult a dermatologist, but instead referred the matter to police.  The mother then ceased the father’s contact with the children for a period of 11 weeks.  After considering information provided, the judge considered that the mother was looking for evidence in support of her suspicions about sexual abuse by the father, and that the mother had selectively and misleadingly presented information (credibility).

An expert gave evidence that about 30% of pre-school aged girls tried to kiss boys they were familiar with, and that this fell within the range of normal behaviour for girls up to the age of around 6 years.  The expert noted that the incident of rubbing private parts occurred soon after a distressing event.

The expert stated that the least reported and most concerning sexualised behaviours involve more active sexual behaviours including oro-genital contact and inserting objects into another child.  The expert expressed an expectation that if the mother’s reports about the children’s sexualised behaviour were correct, then he would expect to see the children displaying somewhat more abnormal behaviour in other contexts, and that the children would have become pre-occupied and obsessed.  The expert concluded that the mother’s reports were likely to be elaborations of her own existing fears and anxieties rather than having been substantiated as real events (personality emotionally volatile, parenting style emotional).

The judge applied the following test of reasonable concerns:  Did the mother inform the father about her concerns at the time? No.  Did the mother report her concerns to other people at the time? No.  Did the mother continue to allow the father to care for the child following her initial concerns?  Yes.  Were reports to other people consistent?  No, reports become more serious over time.  Did independent investigations support allegations?  No. Did the mother accept the results of independent investigations?  Partially.

The judge commented on the mother’s credibility, saying that the mother exaggerated events and that events often become more serious with each re-telling.

The judge found that the father did not pose an unacceptable risk of harm to the children.  The judge found that while the mother’s continued belief that the children had been sexually abused by their father raised potential for psychological harm to the children, legislation is directed at the need to protect the children from actual psychological harm from being subjected to abuse, neglect or family violence.  The judge found that there was a very low level of trust and very poor communication between the parents.

Therapy for Child

The expert considered the need for therapy for the children.  The children had a warm relationship with their mother and the expert recommended that this would continue if the mother desisted from further interrogation of the children.  The expert noted that it was unlikely that the mother would accept that her fears were unrealistic (strong belief).  The expert considered that the mother’s action of continually taking the children for investigations had increased the children’s anxieties about their own sexual development (assessments repeated).  The expert reported that it was very important that the children were confident about maintaining a relationship with their mother and didn’t feel guilty that somehow they had been the cause of undermining the relationship with their mother.  The expert noted that the last 12 months had been extremely unsettling for the children and that stability for them was important. The judge ordered that the mother participate in therapy to assist her to deal with the impact of the orders and to minimise the exposure of the children to her feelings associated with the orders (therapy for parent).

The judge found that it was currently the father who was better able to support the maintenance of relationships on both sides of the extended families.

The judge ordered that the child change accommodation so that the children live with the father and that the father have sole parental responsibility.

The judge ordered that the mother have contact with the children on a graduated approach beginning with phone contact for 10 weeks, followed if supported by a satisfactory report from the mother’s therapist (treatment report), by contact time that increased in two steps.