Observations from an insider in the Family Court of Australia.

DOCS: Department of Community Services (NSW)

NSW: New South Wales

The Kinsey Report of the 1940’s - presented, in a sanitised form, to the Australian community in the 1950’s - gave the Australian public its first media backed, albeit titillating, introduction to human sexual awareness and behaviour. Its contents had the clergy making comments of disapproval from their pulpits and journalists reaching for their ‘biros’. The well founded allegation that Kinsey and some of his associates were suspected pederasts, was conveniently overlooked by the Australian media at the time.

Kinsey, a Professor of Biology and authority on the taxonomy of gall wasps and edible wild plants in South Eastern America, without any other related qualifications, had his pornographic laboratory experiments in human sexual behaviour given private and government financial backing. However, when the Rockefellar and the National Research Foundations learned of Kinsey’s laboratory experiments on children they withdrew further funding, after which Kinsey had to rely on the American National Institute of Mental Health to publish his second book - Sexual Behaviour in the Human Female.

In the mid-eighties, without the publicity given to Kinsey, the Australian community became the recipient of an imported experimental agenda of child protection formulated and espoused by another unqualified American. The founder of these experimental and unscientifically based procedures was Kee Mcfarlane, who rose into prominence in the 70’s to became one of the leading figures in the American child sexual abuse detection hierarchy. "Her qualifications - a Fine Arts degree. Her expertise - writing grand proposals." Like Kinsey, McFarlane’s lack of credentials was also ignored by the American vote chasing legislators as she launched her definitive ‘grand proposal’ with political backing and approval of a concerned public sensitised with her visions of immanent child sexual abuse.

McFarlane’s agenda involved conditioning the public to a perceived epidemic of child sexual abuse at all levels of society, through provocative television advertisements and media appearances. One Australian television advertisement showed a silent and trusting child being led away by a father figure, accompanied by a cryptic message to guard against child sexual abuse. Little wonder, that the natural desire to combat this spectre of child abuse quickly became a vote winner for ambitious politicians. This media driven message was an irresistible formula to a NSW premier who, assisted by such provocative advertising, had no hesitation in hitching onto this sure-fire way to electoral popularity.

Unfortunately, what the American and Australian communities thought to be a natural reaffirmation of child protection and awareness, in fact, turned out to be a manifesto of groundless suspicion, ad hoc accusations, arbitrary judgments, premature condemnation and trial by media. From that time on, the premise of innocent until proven guilty disappeared from any dialogue between the manifesto’s operatives and the accused.

"The notorious Margaret Kelly Michaels case and the McMartin Pre-school Trial fiasco in America are stark testimony to McFarlane’s flawed investigation techniques, which are not only unscientifically based, but are now enshrined in the American System of Child Protection."

Australia’s own Mr Bubbles case and the debacle involving a religious sect should have alerted our community as to the crass ineptness of this style of investigation during which the waters of credibility were irrevocably ‘muddied’ through inept and misleading interviewing techniques. The McMartin Pre-school Trials were portrayed graphically in the movie Indictment, directed by Oliver Stone.

In my opinion, DOCS operatives and similar agencies are not qualified or experienced to conduct assessment of children on such a grand scale as suggested in their own statistics of confirmed child sexual abuse. This is evidenced in the thousands of instances where their alleged claims have been found to be uncorroborated, unproven and therefore probably false. In my opinion, the result of this built in lack of expertise, displayed by these government instrumentalities, is that children and adults have been made unwilling victims in a suspect experiment in child sexual abuse assessment and detection.

In 1991 a leading Victorian Clinical Psychologist and part time lecturer at a prominent University was concerned as to the lack of qualified people in the field of Child Sexual Abuse Assessment. He was well aware as to the absence of proper facilities and inadequate level of training available to aspiring ‘interviewers’, who were actively questioning children in this highly sensitive area of suspected sexual abuse. The doctor explained, "the younger the child the less one should be inclined to question that child - if at all." He added, in words to the effect:

It seems to me, that unqualified or inadequately trained personnel tasked with interviewing young children to prove sexual abuse are entering an area that is outside their area of expertise and potentially damaging to the subject child’s well being. These inept operatives, by imposing sexual inferences on young undeveloped minds concerning matters far beyond the child’s comprehension or cognition, are unwittingly placing themselves in the same league as the Kinsey experimenters. The manipulation of young minds through suggestion and leading questions directed at the child’s crotch, on the presumption that the child’s responses are proof of sexual abuse, may well compare with Kinsey’s practice of physically stimulating children’s genitalia on the presumption that the child’s reflexes are proof of the child’s latent sexuality.

It is my opinion that, in the past fifteen years, the insidious invasion of a child’s suggestibility by inept child sexual abuse interviewers, has been instrumental in more children becoming victims of manufactured ‘sexual abuse’ than actual instances of this abuse. Research carried out into children’s suggestibility and memory concluded that:

In the mid -1980s the trend towards arousing awareness in young undeveloped minds was introduced into pre-school and primary schools on the premise of protecting children from possible sexual abuse by adults and older children. Some pre-schoolers in Victoria are actually shown anatomically correct dolls, where male and female genitalia became the focus of attention in their little minds, while penis and vagina became a household word.

As protective as this first seemed to concerned parents, it was the niche that enabled radical minorities to infiltrate the school system where possible sexual abuse awareness is now introduced as some significant part of the school curriculum. This program, in my opinion, eventually led to promiscuity by the young on an unprecedented scale, where High School students prematurely pre-conditioned through these programs are ‘ready’ for sexual experimentation by the time they graduate from Primary. The wrong messages were obviously given through unnecessary and intrusive sex instruction in these children’s formative years. The remedy for this, in my opinion, would be to take sex instruction out of the Primary School classrooms. This form of protective instruction is the parents or guardians domain, not that of some well meaning police officer or overzealous welfare worker cruising school yards.

The tenets of sexual awareness of basic child protection have been around for centuries, it is known as common-sense garden variety parenting, not the present model of bureaucratic intrusion on behalf of a minority, who have traded their parental instincts for a psychologically driven confusion of cliches and half–truths. The result of all this is that many parents have been over sensitised into a paranoia of ‘pending’ child sexual abuse instead of nurturing their common sense awareness of child protection.

Some parents are now forever on the ‘lookout’ for signs of sexual abuse in every day life. The message given to them is to be on the alert and recognise, not only the misleading list of alleged sexual abuse indicators disseminated by child welfare workers, but ‘disclosures’ of sexual abuse that a child may be trying to communicate to you.

The simple message ‘to beware of the boogeyman’ managed to strike fear in my heart as a child, whereas the spectre of ‘good and bad touching’ was never a consideration. There is no substitute for vigilant arms length supervision tempered with the common sense of knowing where your child is at all times during those important developing years. It is no surprise or cause for concern, that parents and close relative do the most touching of these little ones during their young formative years. Why stink-up essential loving relations of a young child to his/her parents and relatives with unnecessary sensitising garbage of good and bad touching? Since ‘good and bad touching’ was introduced into the community, there have been thousands more false abuse allegations made than the proven instances of child sexual abuse.

My personal opinion is that parents who adopt the present child protection programs are running another agenda and it sure has nothing to do with looking after their own kids. It’s all to do with ‘others’ looking after their children while those particular parents go about pursuing their own self interests. Parents who make sacrifices to devote ‘full time’ care to their young charges during the child’s first seven years are becoming a rare commodity, I feel sure that those same parents would tell the ‘good touch / bad touch’ peddlers what they could do with their stinky agendas. In my opinion, it is better for children to graduate naively ignorant of their sexual potential rather than ‘street-wise’ immature novices ready for sexual experimentation.

Kinsey would be delighted with the present program as by the time the children leave Primary School they are not only street wise, but are encouraged to graduate to the streets if parental control, once called family discipline, is considered too harsh by these same interfering bureaucrats.

Parental control was literally hijacked by our vote chasing politicians who introduced the American version of Children’s Rights Legislation, that was eventually to give rise to an unprecedented number of street kids. This, in my opinion, has provided unfettered access to our young by pederasts and drug pushers.

I recall listening to one social worker, operating in Sydney’s King’s Cross, who featured in an award winning expose on ‘TV’ where she was bemoaning the fact that male teenage children were being prostituted in a building known to police as a pederast haunt. While the exploitation of these children had been ‘known’ to her and the police for some weeks, she inexplicably waited for her moment of glory to comment to the award-chasing journalist. There was no talk of ‘rescuing’ the victims, only allegations that police had been using the knowledge as to the identity of the pederasts as part of a crime control strategy - all this presumably at the children’s expense.

The alarming increase in street kid numbers in the eighties made Australia ripe for child protection on a grand scale - the politicians and bureaucrats who were responsible for this mess now arrogantly came to the fore with another grand plan - a Child Protection Authority with teeth. This revamped instrumentality introduced the best and worst of child protection programs. The worst of which, in my opinion, has to be the Child Sexual Abuse Protection Units.

A witch-hunt mentality emerged in earnest during the mid eighties as Australia literally became a ‘Little America’ overnight - a nation of accusers and litigants - adding to the coffers of the legal profession, while depleting the self esteem of thousands of innocent children and adults. Too ready access to Legal Aid and the lure of victim’s compensation, further smoothed the way for this litigious onslaught, aimed mainly against males, as the spectre of child sexual abuse appeared ad nauseam in the media. The dissemination of child protection misinformation by misguided child protection zealots resulted in chaos and confusion, as parents started notifying thousands of alleged cases of child sexual abuse in all States.

Inappropriate touching classes in schools in some parts of Victoria gave parents a crash course in child sexual abuse recognition, affecting one district so badly that a circuit Magistrate felt it necessary to comment on the inordinate number of fanciful accusations of child sexual abuse coming before him. These misinformed, and sometimes, mischievous operatives are invariably supported by the Victorian CIB, who add to the accusing parent’s paranoia when embellishing alleged ‘disclosures’ to the point of stupidity.

Among the aims of the DOCS Child Sexual Abuse detection agenda, when interviewing children of tender years (two to six years of age) is to obtain and act upon what are termed ‘disclosures’ from the alleged victim. DOCS officers are urged to look for displays of sexual behaviour claimed to be Sexual Abuse Indicators’. As it turns out most, if not all, of these alleged indicators could be attributed to any child placed under stress through anything but sexual abuse.

In my experience of studying alleged child sexual abuse cases, there has never been a corroborated instance where the assessment officer had actually described behaviour consistent with that of a sexually abused child throughout the investigating period. Instead in these cases it was the anecdotal evidence of the notifying parent that was inexplicably accepted without question and parroted as fact by the same officers, who then had the arrogance to assess the child as a ‘confirmed’ victim of sexual abuse.

Quoting from The Bulletin 6 December 1994, in which a Victorian based child sexual abuse expert was questioned about the Department’s role concerning false accusations of sexual abuse against school teachers replied:

"In Victoria, highly qualified professionals, including paediatricians and psychotherapists, examine a wide range of circumstances including a child’s home and school environment, before deciding if a reported case is valid. You never take one person’s word. You need to have an open mind and get the full psycho-social picture." The expert then went on to say that, "Notwithstanding the present controversy, it is important to remember that only a small portion of genuine abuse cases probably ever surface."

In the light of my investigation, the previous statement could only be viewed with extreme cynicism.

In the Family Court experience the smattering of knowledge, with respect to child sexual abuse indicators as explained by social workers to concerned parents, can be used mischievously in the vitriolic atmosphere of bitter access and custody disputes. The consequent flow of accusations alleging child sexual abuse became the means by which some parents were able to deprive former partners (usually males) dignified access to children of the relationship.

It is with some concern that, after many years in a Family Court environment dedicated to family and children’s interests, I have formed opinions shaped by observation and research. As a result, I have come to the conclusion that possibly thousands of Australian children and adults have, over the years, been made unwitting pawns in bureaucracy’s determined search for child sexual abuse offenders - real and imagined. I started ‘turning over stones’ to find answers to questions that the media was too timid or out of touch to recognise. The aim of my investigation was to try and restore some semblance of balance into the myth of rampant child sexual abuse trumpeted over the news media during the 1980s and early 90s.

When the media parrots headline grabbing stories and statistics as to the extent of alleged child sexual abuse in Australia, the public must cringe at the inference that ours is a nation of child abusers and deviants. Overwhelming evidence to the contrary, in the meantime, is being stifled by fanciful and misleading DOCS statistics.

Annual CPA statistics, compiled from DOCS records, claim thousands of alleged confirmed cases of child sexual abuse in NSW alone in the last ten years - approximately thirty five thousand. However, during those years not one investigative journalist has had the courage to ask a most basic and important question. "Why is it that, of the thousands of alleged cases classified by DOCS as Actual - Confirmed Child Sexual Abuse, less than 3% of these result in convictions?"

I was soon to realise that the child protection operatives refused to admit that the possibility of false allegations even exist while they repeatedly classify thousands of children annually as victims of Actual - Confirmed Child Sexual Abuse in the absence of proper clinical evidence. This practice becomes abusive when children are subjected to unnecessary interrogation sessions and sexual abuse rehabilitation therapy as a consequence of erroneous assessments that classify them as actual victims of sexual abuse when, in fact, they are not. In my opinion, this abuse is encouraged when suspect evidence, presented as factual while rarely accepted as truthful, goes virtually unchallenged through our court system. Under these circumstances this fanciful material is given unwarranted credibility when the judiciary fails to censure the authors of this nonsense.

The reluctance of courts to enforce harsher disciplinary action against inept welfare workers is unconscionable, especially in the absence of appropriate comment setting out the serious effects their lack of professionalism can have on the children themselves.

When proven instances of horrific child sexual abuse are brought to the public’s attention I invariably become overwhelmed with indecision and concern as to the pursuit of my own goal, that being to bring into perspective the blatant misinformation surrounding alleged child sexual abuse in this country.

In my opinion, child abuse protection and detection agencies never publicly accept responsibility for mistakes that cause so much distress to thousands of innocent people. Notwithstanding my own limited investigation, the apparent scale of their errors, and the ineptness and dishonesty that accompanies them, is overwhelming. This worrying trend, revealed in the techniques employed by these operatives, goes well beyond acceptable lapses of efficiency.

Such lapses could, perhaps, be considered an ‘acceptable’ attrition rate if there was a ratio of five false cases of alleged child sexual abuse to every hundred proven cases. However, when the reverse is more likely, and where 95% or more of cases given this classification are probably false, then this state of affairs cries out for investigation and correction. When the question arises as to why there seems to be a reluctance to discuss matters involving false accusations, the reply from most professionals representing DOCS is that:

"It would not be in children’s best interests for courts to pursue such matters, as to do so would discourage ‘genuine notifiers’ and cause possible further disruption to the subject children."

In my opinion, a more significant reason for the reluctance of DOCS to admit to making false allegations is found implanted in an agenda of secrecy strengthened by specious legislation that gives these operatives virtual immunity from public scrutiny and accountability. This state of affairs becomes clearer with the knowledge that, while mischievous parents may make the allegations, it is these protected agencies that invariably give substance to them. I am confident that my concerns are well founded and demonstrate the reason that the CPA bureaucrats, to cover up the low level of expertise, insist that such protective legislation is necessary.

During 1996 I was made aware of a case in Victoria where a young man was accused of sexually abusing his three-year old cousin in the backyard of her paternal grandparent’s home. It was alleged by the child’s mother that her daughter was, on more than one occasion over a three week period, taken down behind the grandparent’s garage, where, after allegedly sticking his finger in her backside, smeared faeces over her head and face, then forced his fingers into her mouth.

Approximately three months after the accusation was made, the young man was confronted by 5 members of the Victorian CIB (in the presence of his own parents) and accused of the rape of a three year old before being taken to police headquarters for questioning. He was released, unconditionally, an hour later.

The shocked and disgusted man angered by his treatment, nevertheless saw a need to oppose an Intervention Order application filed against him by the child’s mother, when she learned of his unconditional release. While he had no wish to communicate with the child, he saw it as an opportunity to completely vindicate his innocence to relatives made aware of the accusations against him. This decision would have taken an enormous amount of courage, whereas a guilty person would be loath to take such a step, especially after police had seemingly lost interest in him. This unnecessary exposure to judicial scrutiny involved a real element of risk had the Magistrate given a modicum of credence to the mother’s accusations, especially when the CIB were visibly present during the Intervention proceedings!

When questioned in the witness box, the subject child’s mother admitted that the paternal grandparents were at the house at all times during the child’s stay, after which the man’s solicitor, during cross examination, asked the obvious question:

After giving the mother plenty of opportunity to answer this basic question, the patient Magistrate dismissed her application and voiced his disapproval as to the number of similar fanciful cases coming before him in that jurisdiction.

What also appalled me was the fact that the subject child, as a result of this non-event, had been subjected to months of unnecessary Sexual Abuse Rehabilitation therapy by CASA (Children Against Sexual Abuse) organisation. This is the sort of institutionalised child abuse that never hits the headlines, when ‘therapists’ process children as abuse victims on unfounded assumptions.

In this matter, the Magistrate’s disinterest as to the effect of the unnecessary therapy to which the child was subjected, proves the lack of judicial sensitivity as to the children’s real needs when such investigations sour. One asks who ‘de-programs’ a child treated for three months as a victim of an abuse that never happened? This unanswered question is the reason our bureaucrats hide their heads in the sand and refuse to acknowledge that children caught up in this deception can be seriously effected.

When pathetically low conviction rates for alleged child sexual abuse are questioned, the defenders of this investigation process attack the judicial system as the main reason for such poor outcomes. The Victorian explanation and, no doubt the same excuse echoed by all States, is that:

The child protectors are trying desperately to get rid of the criminal court’s safety net, that requires a standard of proof ‘beyond all reasonable doubt’, and replacing it with legislation, where children are concerned, that would accept their ‘disclosures’ without question. It is obvious where children of tender years are involved such legislation would be unthinkable, without the benefit of video taped records of interviews. It should be mandatory for all Child protection investigators to tape all interviews of children where sexual abuse is suspected. Video taped records give both sides of the litigation process, as well as the presiding judge, the opportunity to assess the methods adopted to obtain any alleged disclosures.

While it is accepted that no court in the land would convict a person purely on written records of interviews with alleged victims, the child sexual abuse investigators still prefer to submit written records in the absence of convincing clinical evidence. The innuendo of culpability contained in the written records is obviously more destructive to a defendant’s case, while avoiding the expert rebuttal to which their video and audio taped records of interview were subjected in the past. In short the child protection operatives have no interest in proving that sexual abuse is even a reality, knowing that a smear-campaign in written form, while virtually immune to rebuttal, places the accused in an untenable position.

In many American states, the child sexual abuse industry have judges, prosecutors, lawyers and doctors whose living depends on the same source of funds - The American Department of Health. While Australia is not far behind, our one saving grace is the Separation of Powers between the judiciary and the bureaucracy. There was a failed attempt to corrode those powers at state level, in a NSW referendum on the 25^th Mar1996. However, in spite of this safety net, thousands of innocent people have had their lives turned into muck by under qualified and overzealous operatives hiding behind legislated immunity. I have given a few examples of this in other papers, where one ‘infamous’ case (CCH 1988M&M.) is now used as a precedence in Family Law.

From the moment DOCS operatives launch into unilateral investigations, alleged perpetrators are deemed guilty and, effectively, deprived of natural justice. Only after the unilateral evidence is collected do the police step in and interrogate the ambushed suspect. It is my opinion, since its introduction in the early to mid eighties, this child sexual abuse detection strategy has become open to abuse by unqualified and overzealous investigators within DOCS, the Child Sexual Assault Units and other related agencies viz welfare workers in Women’s Refuges and schools.

This has resulted in exploitation of vulnerable children in a repressive agenda of witch-hunts and fishing expeditions giving rise to fanciful and contrived evidence that, over the years, has suffered massive rejection by our Criminal Courts - both Federal and State.

Such rejection did not deter the child protection zealots from focusing their attention on the Family Court where accusing parents make such claims in the midst of bitter custody or access disputes. The Family court requires a lesser standard of proof to prove culpability and has, too often, accommodated these government funded ‘psycho-cheats’ (interrogators who manipulate children’s suggestibility) resulting in parents either losing access to their children or being subjected to undignified access regimes.

The present system of child psychoanalysis in force by Child Sexual Abuse detection agencies needs to be replaced by objective and clinically correct procedures that can only be the domain of qualified professionals with many years of clinical experience with children of all ages. To that end I leave the reader with the following facts with respect to sexual abuse allegations coming before the Family Court:

(a) It is a common observation that the allegations involve children of 2-5 years of age. With their restricted communication skills they make ideal ‘victims’ for suggestive investigating techniques.

(b) The alleged extremes of the child’s behaviour, invariably claimed by the accusing parent are rarely, if ever, manifest in the presence of the investigating officers during the assessment process. Neither does behaviour attributed to probable sexual abuse manifest itself to other observing professionals - viz, Family Court counsellors or pre-school teachers.

(c) While expected behavioural patterns fail to surface during the investigation itself, these child sexual abuse assessors invariably convey the impression, though the innuendo of their written records, that the alleged sexual abuse is a reality.

(d) It has always intrigued me that a normally heterosexual male, soon after separation and with no prior track record of paedophilia, is suddenly alleged to have adopted the role of a child molester. This sudden onset flies in the face of common sense.

(e) Child sexual abuse allegations are always claimed after the parties have separated and, invariably, in the midst of bitter custody or access disputes. The alleged abuse was never being cited as the reason for the initial break-up of the relationship.

(f) When investigations sour in the absence of corroborative evidence, DOCS will always try to claim that the subject child, nevertheless, is now in fear of the alleged perpetrator, while further contact with the accused should be denied.

These scenarios are, in part or wholly, present in over 98% of cases coming before the Family Court, and while they may not be absolute proof of innocence, this repetitive ‘coincidence’ should go some way to putting the avalanche of allegations into proper perspective.

The low conviction rates for this crime, compared to the huge number of alleged child molesters according to DOCS, speaks for itself. In my opinion, incorrect assessment at the notification stage, has effectively thrown a generation of children onto the scrap-heap - in the mistaken belief that they are victims of the worst abuse of all - that of child sexual abuse - when in fact no such abuse had ever occurred.

[End Part 1]

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The long-term effects for children mistakenly processed as sexual abuse victims are yet to be seriously investigated, while as adults these children could genuinely believe that they are victims of an abuse that never happened. The following is a statement made by a leading NSW clinical child psychologist after investigating a case, at the Family Court’s request, during which she found child sexual abuse allegations against the access father to be false.

"When the primary caretaker, and others in the environment, make claims of abuse which the young child subjectively knows did not happen, it can create genuine confusion for the child’s reality testing. Such confusion can place undesirable pressure on the child’s developing ego and sense of worth. As time goes by the child may grow to believe that abuse has actually occurred, since the child will have little memory of his/her Pre-school years. This belief could cause major issues for the child’s development of self and could impact on the relationship of the falsely accused parent if the child ‘genuinely’ believes that he/she has been abused. The later realisation that he/she had been ‘treated’ for such abuse could reinforce the belief that abuse had occurred. Perceiving one self as a child who has been sexually abused has the propensity to cause later distress, particularly to one’s image and self- esteem."

"We are of the view, as a matter of general principle, when assessing, whether or not, there is a risk to a child if access were to occur, or the welfare of a child could be endangered in the event of access, the ordinary standard of proof must be applied.

In my dissent, I said that I thought that this expressed the test too broadly and I said at 76-927:

"In the present case, the trial judge was not satisfied that the husband had not sexually abused the child. We take to mean that His Honour was not satisfied according to the civil onus. On this footing, His Honour was unable to exclude the possibility that the husband had so abused the child. His Honour obviously concluded that there existed an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access."

In my opinion, as a result of my own limited investigations the alleged ‘sophisticated techniques’ employed by DOCS and other agencies in the field of alleged child sexual abuse are unscientifically based, manipulative and, in the main, destructive to the very children they purport to be protecting. It seems that these operatives are poorly trained, and generally lack the skills to interpret alleged children’s ‘disclosures’, especially from those of tender years.

The concerns expressed by this trial judge gave a valuable insight into this case and, in my opinion, was the basis of His Honour’s determination to further his cause of ‘lingering doubts’ instead of insisting that taped evidence be mandatory and dismissing the case outright through lack of substantive evidence.

For example, in this same matter the trial judge had no problem in rejecting the mother’s transcript of her audio taped interview with the subject child as evidence of child sexual abuse. Similarly, the transcript of the audio taped interview by a police Constable, claiming horrendous allegations of child sexual abuse, was only afforded patronising recognition by the trial judge due to the unprofessional and ‘strong arm’ tactics employed by the Constable and the prompting by the child’s mother at the time.

The written records of this alleged expert, revealed explicit adult-influenced responses claimed to be those of the 3 year old girl. These responses, in my opinion, were far too descriptive and brutal as to make her report appear improbable, dishonest and manipulative.

What heightened my suspicions and scepticism in this process, was that the Full Court records show that the expert’s interview with the subject child was conducted immediately after she was briefed by the aforementioned police constable. The passing on of such ‘knowledge’ by the constable would have destroyed any impartiality that she was professionally bound to exercise throughout her own pending interview with the child.

The trial judge, in the meantime, explained that the primary role of this expert was that of a Sexual Abuse Counsellor - not that of a bona fide Psychoanalyst. In my opinion, the latter role would have required more credentials and experience than was displayed by this expert, who subjected the child to many weeks of self serving interrogation sessions.

Preliminary Comment: In my opinion, the findings that allegedly contributed to both trial judge’s lingering doubts, were in stark contrast to other facts available to them at that time. It is one thing for a trial judge to lament the absence of taped evidence in support of the allegations, or the lack of expert rebuttal evidence from the defence. It is another and more serious impediment to natural justice, when vital evidence is overlooked that could put the fathers’ innocence well beyond ‘lingering doubts’.

When perusing the Full Court findings in both these matters for the first time, it would be easy to accept the evidence presented on face value however, after arranging all the relevant material in chronological order, any unequivocal acceptance of facts, on my part, was firmly put to one side.

After years of listening to evidence from the courtroom Bar Table with the expected judicial intervention with questions to clarify possible misunderstandings as to the evidence being presented, I found myself in a role for which I am eminently unqualified in the professional sense. Nevertheless when perusing these cases I found myself looking for answers to questions that kept coming into my head. I found relevant snippets of unanswered information, scattered among the alleged facts, somehow came together to become the basis of my consequent scepticism as to what happened during those hearings. The result is that, in my opinion, all the evidence available in these matters, for whatever reason, was not given proper judicial scrutiny. For instance, the lack of Court protocol exercised by the prosecuting side was conveniently ignored or overlooked by all judges in both these matters (1988 M&M and 1988 B&B). This fact alone opened a Pandora’s box of possibilities such that, in my opinion, clear evidence exists in both cases that compromised the credibility of the accusing mothers, whose truthfulness, or lack of it, was never subjected to serious judicial consideration by either trial judge.

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Note: Bracketed aside Comments are the writer’s own personal observations and opinions.

In the marriage of ‘M and M’.

Full Court of the Family Court of Australia. Judgment delivered 8^thAugust1988.

Full text of judgment as follows:

Family Law - Access - Allegations of child sexual abuse - suspension of access - Manner in which courts at first instance should hear and determine custody and access disputes when allegations of child sexual abuse - Standard of proof to be applied when allegations of child sexual abuse - Consequential result from application of such standard of proof.

This was an appeal by the husband against orders which awarded guardianship and custody of the child of the marriage to the wife and which discharged an earlier access order granted to the husband.

The parties were married in June1982 and finally separated on 26Nov1986 when the wife left the matrimonial home. There was one child of the marriage, a daughter A, born in December 1982.

28Nov1986 the wife applied to the Family Court for guardianship and custody of A together with various other orders, including an order for a period of supervised access while the child was in the father’s care.

05Dec1986 (the hearing date of the wife’s interim application) the husband applied for guardianship, custody and access and for supervised access between the wife and ‘A’. The husband on this occasion was granted (non - supervised) interim access.

15Jan1987 during the hearing of the wife’s interim custody application and injunctions and the husband’s cross applications, the Family Court granted interim custody to the wife and the husband’s existing access orders, made on 05 Dec 1986, remained in place.

27Jan1987 the wife applied for suspension or discharge of the existing access orders alleging that she believed that ‘A’ had been sexually abused by the husband.

11March 1987 the husband’s unsupervised access order was changed to that of supervised access.

The husband’s appeal was on several grounds relating to both errors of law and errors of fact by the trial judge. The Full Court considered various issues including:

(a) The manner in which a court at first instance should hear and determine custody and access disputes where allegations of child sexual abuse have been made.

Held: "It is not appropriate for Family Court judges to conduct cases, in which allegations of child sexual abuse have been made, as criminal trials, which seek to establish the guilt or innocence of one of the parties in relation to allegations of child sexual abuse, with the consequential result that, if the allegations be proved, access will be suspended, whereas if the allegation be not proved, access will be ordered. The issue for the court is not whether a parent sexually abused a child but whether in all the circumstances access should or should not take place, following an evaluation of the various factors referred to in Section 64(1) - now Sec 68F(2) - including any finding in relation to child sexual abuse, while the overriding principle being paramountcy of the welfare of the child. The proper venue for the determination of the guilt or innocence of a parent of a child to an allegation of child sexual abuse is the State Criminal Courts and not the Family Court.

As per the two non-dissenting Judges: If a trial Judge considers, on the balance of probabilities, that the welfare of the child may be endangered or there is a risk that the child may be physically, sexually or emotionally harmed if access were to occur, then a trial Judge may suspend access.

As per the dissenting Judge: Some attempt must be made to quantify the risk that sexual abuse might occur during access before taking the grave step of refusing a parent access to a child. If this is not done there is a real danger that the mere raising of an allegation of sexual abuse will be sufficient to preclude the obtaining of an access order, or the discharge of an existing order. The mere possibility that the granting of an access order will expose a child to sexual abuse is not sufficient to warrant the discharge of an access order and must be qualified. There must be a real and substantial risk of such abuse occurring as a matter of practical reality.

As per the non-dissenting Judges: Section 64 [now Sect 68F(2)] invests the court with a protective jurisdiction where children are concerned, enabling it to make orders for the protection of children at risk, either by suspending access or changing custody. The trial Judge came to the conclusion that there existed a risk to A if the husband were granted access. The finding was open to his Honour on the evidence and was based upon the application of the correct standard of proof.

As per the two non-dissenting Judges: Appeal dismissed.

The dissenting Judge in this case submitted the following argument.

" I respectfully differ from their Honours in their statement that,

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[Comments: A reasonable person would agree that, " the mere possibility that the granting of an access order will expose a child to sexual abuse, is not sufficient to warrant discharge of an access order and must be qualified."

In my opinion, the same may apply to the views of the two non-dissenting judges: " that if a trial judge is of the belief that there is any possibility that the child might be exposed to abuse while in the father’s care, then that access should be denied. " I would add however, that lingering doubts is far too inadequate a reason to deny access, in the meantime, any unacceptable risk must be quantified.

Family Court legislation states, "It is not appropriate for Family Court judges to conduct cases as criminal courts where failure to prove guilt will ensure access and where guilt is proven access will be suspended." In my opinion, in both these cases, an impediment to natural justice occurred when vital evidence was overlooked that would have placed the innocence of both fathers well beyond lingering doubts. ]

Where practicable, I arranged the events and facts in chronological order.

• There was a one-day separation of the parties in 1983, however the wife returned home on the same day from a Refuge Centre, with the two children. ‘A’ now 5 years of age, was born on 06 Dec 1982, and P, the wife’s child from a previous relationship, was born on 01 Jul 1976.
• The parties continued to live together until June 1986, when the wife left the matrimonial home, leaving the child of the marriage with the father, prior to her flying with ‘P’ to Australia five days later.
• Due to the father’s working commitments, ‘A’ was left with the father’s sister on a full time basis - the sister was given frequent help by the paternal grandmother where possible.
• The child’s natural mother, because of the distance involved, did not seek to exercise access to the child - while the father conceded that he would not have allowed the mother to take the child on access to Australia for fear that the daughter would not be returned.
• In August 1986 and, after a phone call during which reconciliation between the parties was discussed, the father flew to Australia and the husband and wife recommenced cohabitation.
• There was a final separation on 26Nov1986, when the wife moved to an Adelaide Women’s Shelter with both children. While there was acrimony between the parties, there was no record of physical violence or abuse prior to the separation.

The trial judge indicated that: "There was a dispute as to the quantum of access which the husband in fact exercised pursuant to the terms of the said orders (Consent Orders on 05Dec1986). His Honour found that between 15Dec1986 and 10Jan1987 the husband, for whatever reason, did not exercise access on at least two occasions."

[Comments: Covering the period between the 15Dec1986 and the 10^thJan1987, the father was entitled to four access occasions as per the orders of the 05^thDec1986. It was unhelpful to see that all judge’s concerned did not define the dates of these two ‘missed’ access occasions, while omitting to mention that the wife denied the father’s access to the child on at least one other occasion. This occasion being Saturday the 24^thJan1987 that coincided with the child’s controversial five day stay at a hospital clinic.

However, the only record of the father being subjected to a supervised access regime was as a result of court orders made on the 11^th Mar 1987. To verify this important fact, I contacted an observer in South Australia close to this case, who assured me that the father had never been subjected to supervised access prior to Mar 11^th 1987, nor were court orders made to that effect prior to that date. There was also no statement to the effect that the father was either denied access or failed to attend access between the 27^thJan1987 and the 11^thMarch1987.

There were, however, statements made by the trial judge that hinted of two supervised access occasions shortly before and leading up to the court appearance on the 11^th Mar1987, however this scenario appears to have been a self serving exercise in judicial license.

The following is a complete list of available unsupervised access days to which the father was entitled between 06^thDec1986 and 11^thMar1987 (as per Orders of the 05^thDec1986). The father’s access was restricted to each Saturday between 10.00 a.m. and 5.00 p.m., unless indicated otherwise:

06 Dec1986 …(10.00 a.m. to 1.00 p.m.)

13 Dec1986, 20 Dec1986

25 Dec1986 (4.00 p.m. to 7.00 p.m.)

27 Dec1986, 03 Jan 1987, 10Jan1987, 17Jan1987

.31 Jan1987, 07 Feb1987, 14 Feb1987, 21 Feb1987, 28 Feb1987, 07 Mar1987.

The dates, 07Feb1987 to 07Mar1987 inclusive, have special significance in the summing up of this case.]

26Nov1986. Final separation - wife moves to an Adelaide Women’s Refuge.

28Nov1986. As a result of certain undisclosed conversations with two women at the Refuge Shelter, the wife files an interim custody application for the child of the marriage, in which she sought orders that the husband be placed under a supervised access regime. Her supporting affidavit did not give a reason for wanting the husband’s access to be supervised. The return date for this application was the 05^th Dec1986. In the meantime, at some undisclosed date, the wife contacts a Sexual Assault Referral Centre (S.A.R.C), and an appointment is made for the younger child ‘A’ to attend the Centre on the 11^thDec1986.

[Comments: The fact that the trial judge never defined the date the wife arranged the child’s referral to the SARC at first seemed unimportant. However, His Honour’s conviction as to when the wife first suspected child sexual abuse was, however, clearly stated on page 67929 of the Full Court Report under the subheading The Wife. "It was the wife’s evidence that she first became aware of the possibility of sexual abuse at 9.15 p.m. on 14^thJan1987 following certain statements made by the child. His Honour was convinced however, that the wife first considered the possibility of the child being sexually abused by the husband early in December 1986, that is six or seven days after the separation and before the husband had exercised any access to the child.".

What persisted in my mind was that the trial judge was so ‘convinced’, yet not precise or explanative, as to when the wife initially suspected sexual abuse. Logic now dictates that, for the trial judge to be so adamant on this point, the only criteria of her alleged ‘suspicion’ that existed in the time frame of ‘six to seven days after separation’ could be the date on which the wife initially contacted the Sexual Assault Referral Centre. Logic demands that for the wife to make this referral at that time to such a place - the spectre of possible child sexual abuse would have been uppermost in her mind.

In my opinion, this contact date must have occurred shortly before, or at the time she filed her custody application on the 27^th Nov 1986 that is, within the trial judge’s enigmatically stated time span. This would also explain why the wife asked that the father be subjected to ‘supervised’ access in her application of the 27^th.

05^thDec1986. Parties attended court for ‘directions’ orders, during which the custody application is given a hearing date scheduled for the 15^thJan1987. By consent of both parties, the husband was granted non-supervised access to the subject child in accordance with dates and times mentioned previously.

[Comments: There is little doubt that the referral date for the child’s SARC appointment was prior to the 05^th December court appearance and, therefore, is of significance to the father’s case for the following reasons:

1. The child’s mother and her solicitor were possibly in contempt of court on the 05^th Dec1986 by omitting to inform the presiding judge of the child’s pending appointment with the Sexual Assault Referral Centre due some five days later. Had the mother informed the court of the child’s pre-arranged referral for sexual abuse assessment, this information would have had a definite bearing on the future access arrangements between the child and the father.
2. That the mother agreed to a non-supervised access regime under these circumstances is a measure of her duplicity and hypocrisy, where the child’s immediate welfare was apparently of little concern to her, had she genuinely believed the child to be in danger of sexual abuse.
3. Had the trial judge been aware of the referral to the SARC, a supervised access regime would have been put in place to ‘protect’ the child and the father from the very chain of events that followed in this orchestrated farce.
4. There is clear evidence that, during two later court-appearances, the wife and her solicitor again failed to mention ongoing ‘sexual abuse’ investigations involving the child while the father was exercising non-supervised access.
5. The fact that these non-disclosures did not appear as issues in the trial judge’s findings indicates that evidence, in favour of the father, was inexplicably ‘overlooked’ throughout the hearings before all judges. On the other hand, the wife’s lack of credibility was reduced to the innocuous paragraph on page 76929 in the Full Court Report as to the trial judge’s certainty when, "the wife first considered the possibility of the child being sexually abused by the husband."

06Dec1986. Husband exercises non- supervised access -10 a.m. to 1.00 p.m.

11Dec1986. Mother takes ‘A’ to the S.A.R.C., where a Ms.B interviewed the child and noted that, "the situation did not warrant referral as the child made no disclosures." However, a Dr ‘M’ performed a genital inspection of the little girl, while no abnormalities were reported. The doctor also counselled the mother on possible sexual abuse indicators.

[Comment: During the mother’s conversations with the two women at the Refuge, I am sure that she was there made more than familiar with possible sexual abuse indicators prior to this appointment with Dr M. Otherwise why would she have made the referral to the child sexual assault clinic in the first place?

On the 11^th Dec1986, after previously failing to inform the court of this referral, the mother then tells the SARC medical officer of her concerns and agrees to have her child undergo a genital examination. All this on the basis of a three-hour daytime access on the 06^thDec1986, after claiming that the child had allegedly ‘disclosed’ sexual abuse to her!

The fact that the child apparently made no disclosures of sexual abuse prior to the mother initially making the appointment with the SARC, seems a tad too convenient for the mother to now claim a disclosure, based on a three hour access occasion. In my opinion, due to the lack of proper clinical evidence, the doctor’s action can only be viewed as self-serving and performed solely to isolate the father as a possible child molester through implied innuendo. While the trial judge placed no importance on this interview, the doctor’s action of conducting a genital inspection on the child was, in my opinion, sickening and abhorrent.

The mother, after witnessing her child’s pointless interview with Ms B and the unnecessary genital examination by Dr M, should have put an end to the matter there and then. However, she continued in her obvious determination to discredit the father with the assistance of the S.A.R.C.]

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13Dec1986. Father exercises access?

19Dec1986. Wife alleged in her affidavit sworn on 31Aug1987 that ‘A’ was upset and crying for her father.

20 Dec1986. Father exercises access?

25Dec1986. Father exercises access?

27 Dec1986. Father exercises access?

On page 76,929 of the Full Court judgment under the sub-heading The wife, second paragraph, the following statement is made:

"His Honour observed that events, which took place on 19^th and 27 Dec 1986, were not referred to in the wife’s affidavit, which she swore on 23 Jan 1987 in support of her application to discharge the existing order for access. "

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[Comments: As to the two days the father allegedly failed to exercise access, I was unable to find out which days they were, however one can be sure that access was exercised on at least two of the four days within that time frame.

One can only assume that the events of Dec19^th and 27^th, not detailed in the Full Court Report, referred to the child allegedly disclosing sexual abuse by the father. However, evidence showed that the mother in her affidavit of the 23^rdJan1987, had indicated that she did not suspect the father of child sexual abuse before the 14^thJan1987. Therefore, she could not admit in that same affidavit to alleged ‘disclosures’ by the child, involving the father on the 19^th and 27^thDec 1986. This fact is further proof of the mother’s deception and His Honour’s reluctance to highlight the mother’s lack of credibility.]

03 Jan1987. The father exercises access.

10Jan1987. Referring to the Full Court judgment on page 76,929, under the subheading The wife - paragraph three:

"Access occurred on 10 January 1987 and his Honour sets out the conversation which the wife alleges took place between herself and the child shortly thereafter. Following the conversation, which the wife had with the child on this occasion, she telephoned the Sexual Assault Referral Centre on 11^thJan1987 and took the child to the Emergency Department of the F Medical Centre. The child was seen by Dr. C who carried out a physical examination which, although disclosing a somewhat enlarged vaginal entrance, was otherwise inconclusive."

13Jan1987. The mother again takes the child to the S.A.R.C., where the child is allegedly interviewed by Ms ‘B’ for the second time, and from where the child is referred to the South Australian Department of Community and Welfare.

14Jan1987. In a diary produced to the court months later, the mother alleges that at 9.15 p.m. on this date, the child disclosed further abuse and that was the first time she suspected sexual abuse by the father.

[Comments: There was no details of this particular interview by Ms B, nor was there on record that ‘Ms B’ was called to give evidence in support of the wife’s case. There was no mention as to why Ms ‘B’ referred the child to the Department in this instance.

The mother must have had a further memory lapse when referring to 14Jan1987 as the first time she suspected child sexual abuse by the father. I say this, in view of Constable A’s statement claiming that she, "had a conversation with the mother on 10Jan1987, the mother alleging the child had disclosed sexual abuse by the father".

There was also no mention in the Full Court report of the welfare workers from the Refuge being called to give evidence to corroborate the mother’s or their own alleged observations!]

To avoid any confusion arising from the disjointed presentation of facts in the Full Court report, it is vital that events, covering the period between 15thJAN1987 and 11Mar1987, be put into proper sequence and perspective.

15Jan1987. Parties attend court, where orders are made giving the mother interim-custody of ‘A’ and granting the father’s unsupervised access regime to continue as before. Orders were also made for reportable Counselling under the then Sec 62A (1) of the Act.

[Comments: This court appearance on the 15^th Jan 1987 has serious significance for all parties concerned in this matter for the following reasons:

(a) The mother again failed to inform the court of prior and recent investigations into the child’s alleged sexual abuse.

(b) The solicitor for the wife has serious questions to answer. One finds it odd that he/she would not have been aware of the sexual abuse allegations. All matters could and should have been resolved earlier - had the presiding judge at the time been informed during these earlier court appearances.

(c) The wife’s alleged conversations with the child did not appear in her diary, but got into evidence by way of notes in a file produced by Constable ‘A’ and tendered in evidence by the husband’s counsel. The trial judge set out statements allegedly made by the child to the wife at this time (15^th and 16^thJan1987). There is no evidence as to when Constable ‘A’ recorded the wife’s statement, however one can be reasonably assured that it was made after the wife filed her application to terminate the father’s access on the 27^th January 1987.

(d) The court and the child’s father were still oblivious of the efforts of the mother and the two experts to involve him in child sexual abuse, prior to the mother filing her documentation on the 27^th Jan.

(e) Earlier involvement by the court would have obviated the ordeal by DOCS to which this young child was subjected in the weeks and months that followed!

That the trial judge did not comment on the wife’s failure to inform the court of the ongoing child sexual abuse investigation is reprehensible and only supports my belief, that her duplicity was conveniently ignored as an issue by all judge’s concerned.]

16Jan1987. The mother again notes conversations with the child ‘A’. These ‘notes’ were not in the mother’s diary, but appeared on Constable ‘A’s’ file. 17Jan1987. Father exercises unsupervised access, after which the mother alleges that ‘A’ made a drawing, allegedly of the father’s penis, which appeared to be erect. This drawing was annexed to the mother’s affidavit sworn on the 3I Aug 1987. 20Jan1987. According to Miss ‘F’s ‘ report, the mother took the child to a Medical Centre on that day. What transpired there is not revealed.

21Jan1987. At 2.00 a.m. the mother ‘takes’ A to the Accident and Emergency Clinic, claiming that the child was ‘distressed’.

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[Comments:

It is admitted, in an extract from Ms F’s report (page 76,930 of Full Court judgment), that the child was admitted to one clinic on the 20 Jan 1987 and then transferred to the Accident and Emergency Clinic on the 21Jan 1987. However there is no doubt, that the child was finally discharged from the ‘A and E’ clinic on the 26^th Jan 1987.

During this hospitalisation, ‘A’ was subjected to a genital examination by Dr. T, whose report stated: "the vaginal introitus was open and therefore appeared widened and the vulva was slightly reddened. There was no discharge. ‘A’ had no objections to the examination. I found no other abnormalities." (The trial judged ruled the doctor’s alleged findings as inconclusive.)

It is apparent, with the advantage of hindsight, that there was no single incident, relating to the child’s alleged sexual abuse, that could be considered as corroborated evidence that sexual abuse had ever occurred. To that end the trial judge has performed an amazing judicial slight of hand that apparently confused the Full Court judges, causing them to possibly have their own ‘lingering doubts’ as to the father’s innocence.

It is also noted that the trial judge referred as fact, that the wife’s diary recorded such behavior from the child around that time. I have known diaries to be ‘created’ literally overnight - I would need more proof that the mother’s diary on this alleged evidence was ‘genuine’ and capable of corroboration. I say this in the knowledge that this diary would have been available when she swore her affidavit on the 23^rd Jan 1987 (in support of her application on the 29^th Jan 1987). Yet the diary’s contents only appeared at the final hearing some eight months later, suggesting that the diary was ‘created’ well after the 23^rdJan1987. Not to include such evidence in her affidavit on the 23^rdJan1987 would be an extraordinary omission, especially in view of the intensity of her attack on the father’s integrity shortly after separation.

While the hearing did not proceed on the 10^thFeb1987, for whatever reason, the new hearing date was set for 11^thMar1987, the Full Court Report failed to explain why there was no order made to change the father’s existing access regime on the 10^thFeb1987. It again appears that the court was not informed that there was a real danger that non-supervised access by the father could expose the child to possible sexual abuse? Not only did the father have access to his daughter on the 07^th Feb 1987, but there is strong evidence to suggest that the existence of Constable A’s report was withheld from the court during the 10^thFeb1987 court appearance.

What is more significant, is that the father exercised access to the child on the Feb14, 21, and 28 - a fact that was never denied or commented upon by the trial judge or the Full Court judges. There is some suggestion that the ‘experts’ Constable ‘A’ and Ms ‘F’ might have convinced the mother to deny the father access to the child on the 28^th Feb and the 05^th Mar 1987.

At the bottom of the right hand column (page 76929) of the Full Court Report, the trial judge made vague reference to two occasions on which the father’s access was supposedly supervised:

This statement by the trial judge was puzzling, as the reader could well assume that supervised access was ordered at the deferred hearing on the 10Feb1987, or that protection for the child was in place immediately following Constable A’s findings of alleged sexual abuse on the 02^nd Feb 1987. However no such orders were made.

Such an oversight by the judges concerned to clarify the inference of there being supervised access position at this critical time was disappointing, while the significance of such an oversight should have seen this luckless father unconditionally exonerated of any impropriety towards his child.

In my opinion, their failure to stop the father’s access immediately confirms the unthinkable. These people were callously using this child in a conspiracy to gather evidence of child sexual abuse against the father, as this alleged evidence clearly did not exist when the mother filed her application to suspend the father’s access entitlements. This child, in my opinion, had been used as a guinea pig in an inept and crude attempt to ‘create’ evidence unfavorable to the father. It is also painfully obvious that these people never considered the child in any physical or moral danger while in the father’s care, otherwise his access would have been unilaterally terminated weeks before 11^th Mar1987.

It was during the father’s supervised access regime (ordered on 11Mar1987) that Ms ‘F’ made further unsubstantiated claims that the father continued to sexually abuse the child in an outrageous manner! It is unconscionable, that similar finding on Ms ‘F’s’ ‘creativity’ never emerged from the findings of the trial judge or that of the Full Court judges.

Another significant omission was the absence of comments by the trial judge as to the contents of the Family Report ordered on the 15^thJan1987 for the 10^th Feb1987 hearing when on the latter date, the hearing was postponed to 11^thMar 1987. Technically this order left the counsellor approxi