MOTHER WANTS TO SUSPEND THE CHILDREN’S TIME WITH THEIR FATHER ALLEGING SEXUAL ASSAULT BY THE FATHER AGAINST THE DAUGHTER RELYING MERELY ON HEARSAY EVIDENCE
Allery & Florence [2021] FCCA 785 (15 March 2021)
This is a parenting application made by the mother seeking to suspend the children’s time with their father alleging that the father sexually assaulted his child based on hearsay evidence.
Facts:
This is a matter where there are existing interim orders concerning two children: X, who is almost ten years old and Y who is eight years old. The mother has filed an Affidavit and an Application in a Case which insinuates that the father has sexually assaulted X.
The mother relies on a piece of hearsay evidence, namely that X said words to the effect – “I think Dad is doing something to me” – to a gynecologist, Dr B, during an appointment at the private hospital. That alleged statement occurred in the context where the child was taken to the gynecologist to, apparently, investigate what appeared to be pre-pubertal vaginal bleeding. The mother’s affidavit states that the matter was reported to the police and Territory Families for investigation.
The child was, however, subsequently taken to the sexual assault referral centre at Darwin Hospital where she was medically examined. Dr C examined the child and he, in short, noticed nothing unusual. He said, however, that the child was pre-pubertal so any vaginal bleeding would not be explained by menstruation. The vaginal bleeding is, therefore, quite unexplained. The child reported to Dr C that the bleeding only occurs when she is in her father’s care and occurs about every three weeks. It is noteworthy that the child made no complaint of sexual assault to Dr C.
Issue: Should the court suspend time the children’s time with the father relying on the hearsay evidence presented by the mother?
Analysis:
The allegation of sexual assault is an extremely serious allegation. It is one that is in a series of allegations made over the years between the parties, including other allegations of sexual assault which were previously investigated and found to be without substance. It should be noted, however, that in one of those investigations Territory Families concluded that the child was suffering emotional harm at the hands of her mother. There are many reasons to be cautious about this matter but nevertheless, the allegation has been made, albeit in very vague terms.
Conclusion: In the circumstances, until the matter can be properly investigated, the court will suspend the spend time orders for both children with the father.