25 Jan Reversal of Custody Where Father Wrongly Accused of Sexual Abuse

Reversal of Custody Where Father Wrongly Accused of Sexual Abuse – A Case Study

Let’s take a look at a recent case where a father was wrongly accused of sexual abuse from the mother, and what the ultimate outcome came to be.

Father accused of sexually abusing his children

In the case of  Syms & Syms [2021]  this was an appeal against final parenting orders made by a Family Court Judge on 10 October to relation to 3 children (names suppressed), X 2008, Y born in 2010 and Z born in 2012.

The mother became concerned that the children were exhibiting sexualised behaviour, and that the father was inappropriately touching the children.

Children interviewed by Sexual Assault Services but nothing established

The children were interviewed at various times, including by the police, the C Town Sexual Assault Service, the Joint Investigation Response Team (“JIRT”) and a single expert psychologist. The father stated he was told that the police believed the children had been coached to say things, and no further action was taken by the police in relation to the matter. The single expert psychologist was sceptical as to whether any abuse had occurred.

Z did not state anything giving rise to a finding of sexual abuse, and Y did not appear to be describing abusive events that had happened to him.

Although X had told the authorities at JIRT that his father was not a nice person, he would not elaborate further. He wrote down on a piece of paper, “He touched our penises”, but declined to say anything further. The primary judge formed the impression that X was feeling pressured and trying to do the right thing however, he may not have known what that right thing was.

Further allegations of sexual abuse made by mother

The mother had previously expressed concern to the children that they needed to explain to the interviewers what had happened to them, and as a result, the primary judge concluded that X understood he had to do something to meet his mother’s expectations. Even after the father commenced supervised time with the children and the children were happy to see him, the mother made further allegations.

During the first proceeding, she admitted that on reflection one of the stories that X mentioned could have been exaggerated. The primary judge also found that X was being punished by the maternal family, as his tablet had been taken away from him because he did not tell the policeman what he was supposed to during an interview.

Psychologist report against the mother keeping the children in her care

The single expert psychologist was of the view that there were risks with the children remaining with the mother, as the children would continue to develop erroneous and bizarre ideas about what has happened to them, which over time, would become impossible to disappear as a child of the notion that such abuse has occurred. The children will continue to develop distorted ideas about their own experiences. Although it appeared that the children enjoyed many aspects of their life and missed their friends, school and their father when they returned to Australia, the views expressed to the psychologist by the children suggested they were starting to reappraise this time as a negative time in their lives and began to form negative views about matters, such as their friends and their school.

The risk is that the children will come to believe negative and untruthful things about their early life and come to believe that their father was sexual predator who abandoned them and wreaked having on them and their family. Another risk is that over time, the children will internalise the loss of their father. As they grow and develop they are likely to identify aspects of themselves that are similar to their father. The children will then suffer from a range of psychological problems, including feelings of abandonment and concomitant problems with identity.

The first proceeding- judge reverses custody

In the first instance, the mother was the primary carer of the children. The mother alleged the children were at an acceptable risk of sexual abuse by the father, and should not spend any time or communicate with him.

The primary judge did not find that there was an unacceptable risk of harm or abuse for the children in the care of the father. She concluded that the father had not sexually abused the children and did not pose an unacceptable risk of harm to them. She found instead that there was a risk of emotional harm for the children in the care of the mother, on the basis that if they remained in her care, they would accept that the father was dangerous and abusive, and would lose contact with him.

Accordingly, the primary judge reversed the care of the children, so that the father had sole parental responsibility. She also made the decision for a 4-month moratorium on the children spending time with the mother or the maternal grandparents. After the 4-month period, any time with the mother was to be supervised by a professional supervisor or contact service, until the father determined that supervision was no longer required.

The mother appealed from the orders.

On appeal

The mother sought to appeal the primary judge’s decision on various grounds, including the following:

1. 1. That there was a miscarriage of Her Honour’s judgment as a result of an error in fact in her conclusion that the evidence before her did not support a finding that there was an unacceptable risk of the father having abused the children, or any of them, sexually or in any other way.
   2. The primary judge erred in principle and at law in that she misdirected the enquiry as to unacceptable risk, and failed to weigh the magnitude of any risk of harm to the children and therefore did not apply the correct principles.

However on appeal, it was found that in order to determine what magnitude of risk would justify a court denying a parent access to a child, the test is whether there was an unacceptable risk of sexual abuse to a child. The primary judge found that the evidence did not support a finding of sexual abuse by the father, and that there is no unacceptable risk of harm or abuse for the children in the care of the father.

It was also found that the allegations made to the mother and the maternal grandmother began a course of action akin to a mission to establish that the children had been sexually abused by the father. The mother had become angry and disappointed with the children for failing to tell the interviewer at the first JIRT interview what happened to them and told them so. X thereafter understood that he had to do something and prepared a handwritten note accusing the father of abusing all 3 children. Her Honour therefore accorded X’s note little weight. Her Honour also took into account the single expert’s consideration that many of the allegations were simply incredulous.

The trial judge found that although the actions of the mother were intended to be protective, they were actually damaging. She had developed a fixed idea that the father had sexually abused the children, and refused to consider other possibilities and explanations for the children’s behaviour.

In particular, there was a risk that the children would become fearful of their father, and anxious about their own safety if they stayed with the mother. If the children continued to stay with the mother, they will continue to be exposed to ideas about sexual abuse, as well as ongoing medical and forensic investigations. The single expert was concerned that even with supervised contact with the father, the mother’s concerns would not be alleviated, as the mother was resolute in her conviction that the father continued to sexually abuse the children. She was also supported by her family in this belief. Accordingly, the primary judge found that if the children continued to live with the mother, they will adopt her view and reject their father.

Outcome

The appeal was dismissed.

The mother was ordered to pay for the father’s fixed costs in the appeal, as well as the Independent Children’s Lawyer fixed costs.

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