Steve and Anna were in a relationship for almost 2 years and had a child together named Olivia, who was 15 months old when they separated.

Anna came to see us shortly after they separated. She told us how she feared Steve because although he had not been violent in any way during the relationship, he had been following her on occasions since separation. We advised her to seek an Apprehended Violence Order (“AVO”) against Steve, which she then did. Their attempts at reaching an agreement about arrangements for Olivia failed, and Steve then commenced proceedings in the Federal Circuit Court (or Federal Magistrates Court as it was then known). Interim orders were made for Steve to spend supervised time with Olivia.

This went well, and as often happens once the immediate trauma of separation settles down, Steve and Anna were able to agree on an arrangement for Olivia on a final basis, and final orders were made by consent. That arrangement provided for Olivia, then 2½ yo, to spend time with Steve on a graduating basis so that she would start spending one night overnight with him when she was 3 years old. There is a lot of social science research, some of it conflicting, about when it is right to start overnight time away from the primary caregiver. However, what is abundantly clear from all research is that children do best where they are not exposed to conflict on a regular basis. Olivia’s parents agreed to this arrangement and were committed to following it, and working together for Olivia’s sake.

Within 5 months of the Final Orders being made, Olivia complained of a sore bottom to Anna following a visit with Steve. Anna was extremely worried and suspected the worst, that Steve had done something to Olivia to cause this soreness. Anna lived with her mother, Betty (Olivia’s grandmother) and for about 3 days she and her mother talked about little else, and she later recognised that much of this discussion had been in Olivia’s presence. Anna then took Olivia to her local doctor. The doctor advised Anna that the soreness could be caused by poor toileting hygiene or trauma, but reassured Anna that there was no evidence of sexual abuse.

Anna remained worried, but continued allowing Olivia to spend time with Steve for another few weeks. After her first period of overnight time with Steve, Olivia told Anna and Betty that “Daddy put his hand here”, while indicating her genital region. Anna was nearly sick with worry. She took Olivia to the doctor again and the doctor notified the Department of Family and Community Services. Olivia was then interviewed by the Joint Investigative Response Team (“JIRT”), which is made up of Community Services, NSW Police and NSW Health professionals who undertake joint investigation of child protection matters. Anna refused to allow Olivia to spend any time with Steve.

Anna then came to see us. She was highly anxious and genuinely believed Steve had done something terrible to Olivia. We explained that preferably she should have consulted us when she first became so concerned about Olivia’s soreness a while ago. At that stage we would have been able to assist her with referrals to appropriate external agencies, and would have provided her with guidance as to the basis on which she might not comply with the orders. However, as it was later and Anna had already stopped Steve’s time, we had to address the immediate issues with her which was to provide advice to assist her make a decision as to whether she needed to commence new Court proceedings or continue with the current Orders.

We explained that in our experience, there are generally a number of possibilities for such disclosures by very young children. It could be that what they say actually happened, in a dangerous context. At the other end of the spectrum, it could be that the child is simply saying things as a form of attention seeking. There are also many possibilities between these two ends such as what the child says did happen, but in an innocent context (such as bathing the child).

After considering our advice, Anna decided she had to seek new Orders and commenced new proceedings in the Federal Circuit Court. She said that although she had taken on board our advice, and that she had considered the various alternative explanations we had raised with her, she still believed Olivia was at risk and she could not allow Steve to spend time with her. We also referred Anna to a counsellor to assist her with the stress she was experiencing and to help her with parenting in difficult circumstances.

On an interim basis, the Judge suspended the Final Orders pending further investigation of the sexual abuse allegations, and allowed Steve only supervised time with Olivia.

The case did not reach final hearing until over a year later. By that time JIRT had concluded that the allegations could “not be substantiated”. There was also a report by a Family Consultant who had interviewed the parents and observed them with Olivia.

In determining Final Orders for these proceedings, the Judge was concerned by Anna’s behaviour. The Judge was concerned that Anna had not taken Olivia to the hospital immediately for examination when she disclosed she had a sore bottom. The Judge believed that this was an opportunity for Anna to have a qualified person examine Olivia whilst the condition, that had caused Anna so much concern, was apparent. Anna insisted that medical practitioners had a suspicion of sexual abuse, however after reading subpoenaed material, the Judge was not satisfied that any doctor said to Anna that sexual abuse occurred or was suspected to have occurred. The Judge was highly critical of Anna, and also Betty, that they had conducted many conversations about their concerns in the presence of Olivia. The Judge was also highly concerned that when Olivia made a comment about Steve’s hand Anna and Betty both immediately jumped to the conclusion that he had done something inappropriate and did not consider many ‘innocent’ scenarios such as he was bathing her. Given it was the first overnight occasion this was a logical possibility.

Ultimately the Judge found that because Anna was so adamant in her belief that Steve had sexually abused Olivia, and this was supported by Betty, there was a significant risk she would find more basis for making further allegations in the future. The Judge was faced with whether to remove Olivia from her primary attachment figure (Anna) so that she would not be exposed to the risk of further allegations, or leave Olivia in Anna’s care but put some limitations on what Anna could do. The Judge commented on how difficult this decision was but decided that Olivia should stay in Anna’s care but placed numerous limits on what she could do. For example she was restrained from talking about Steve in Olivia’s presence, and she was required to notify Steve of any medical appointments or hospital visits (except in the case of an emergency) and invite him to attend. She was also ordered to continue with the counselling she had started throughout the proceedings, and required to discuss any further concerns she had about Steve’s care of Olivia with that counsellor, if practicable, prior to making further reports. The Judge also noted that if Anna stopped Steve’s time again, Steve should immediately commence proceedings and request the Court Registry to list the case on an urgent basis before the same Judge.

Anna was of course upset about the Orders. However, she also explained that as a result of our advice she expected that outcome, because we had fully advised her on the possibilities. She was very thankful that Olivia remained in her care. She said she was committed to making the situation work for Olivia’s sake and would continue with counselling for herself. She did not want to consider any appeal process.

About 3 months after the Orders were made, Anna consulted us again about some concerns she had. We pointed her to the process but also suggested, as we had previously, that she open a dialogue with Steve to try to understand what Olivia may mean. Earlier she had not been open to that idea, but after everything that had happened, she decided that would be a good thing to try. She and Steve were referred to a family counsellor who they engaged with, and continue to engage with now on a semi-regular basis.

Over the last 10 years, family violence and abuse, including sexual abuse, have been the predominant focus of amendments to the Family Law Act 1975. However, the comments of young children can be easily misconstrued. Family violence and abuse, whether it has actually occurred or is suspected, should always be given serious consideration, but it is important to seek appropriate advice from health professionals, community services and legal advisors regarding parenting arrangements in these circumstances. If you need further information or advice regarding your family law matter, please contact us.

For further information or assistance please contact Sarah Bevan Family Lawyers.

All names and identifying features have been changed for privacy reasons in our case studies. These case studies only have basic detail in them, and you should always bear in mind that every case is unique. These case studies are examples only, and cannot be applied to your circumstances without consideration of all relevant facts.