Case Note: Syms and Syms  Fam CAFC 38
Children – Mother’s “fixed” but unfounded allegations of sexual abuse by father were damaging to the children – Reversal of care, four month moratorium, followed by supervised time with mother due to risk of emotional harm to the children in her care
Background | At First Instance:
In the proceedings in the Family Court of Australia before Cleary J, the mother asserted that the father posed an unacceptable risk of sexual abuse to the three young children of the parties. This assertion was based on the behaviour of the children, including instances of nightmares, bedwetting, and touching each other’s genitals. The mother described their behaviour as ‘defiant, emotional, and destructive’, and labelled the children as ‘broken’. Once this assertion was made, the children were subject to multiple interviews and assessments by child welfare authorities.
While the children repeatedly claimed that the father had touched them, it was found at first instance that the allegations were “akin to a mission to establish that the children had been sexually abused by the father”. The mother and maternal grandmother expressed anger, disappointment, and punishment of the children that compelled them to accuse their father of abuse to avoid getting in trouble or letting them down. In addition, the claims of the children were either vague, or ‘incredulous’.
Following assessment of the children’s behaviour and demeanour, as well as the circumstances surrounding each claim, her Honour was not satisfied that the children were describing actual events of abuse. The ultimate conclusions were that the father had not sexually abused the children, and did not pose and unacceptable risk of harm to them, but that the children were at risk of emotional harm in the care of the mother and may become genuinely fearful of their father as the mother interprets everything through the lens of signs and symptoms of abuse.
Final parenting orders were made that the children live with the father, and that he have sole parental responsibility for them. A four month moratorium on spending time with the mother or maternal grandparents was implemented, with supervised time to follow until the father, at his absolute discretion, determined that supervision no longer be required.
The single expert posed that;
“The risk is that the children will come to believe negative and untruthful things about their early life, and ultimately come to believe that their father was a sexual predator… may, over time, internalise the loss of their father… suffer from a range of psychological problems’”.
This was consistent with the view of multiple investigating authorities, and supported the decision of the primary judge.
The Full Court | At Appeal
An appeal was heard in the Appeal Division of the Family Court of Australia before Aldridge, Watts, and Austin JJ. The mother sought to adduce further evidence, including letters and reports from the child welfare authority. These documents state that there were substantiated indicators consistent with sexual abuse, and list the father as a person of interest. The Court noted that substantiated indicators of sexual abuse differed from a risk of sexual harm by the father, and the application to adduce this evidence was dismissed.
It was found that the primary judge explained the reasons for her decision meticulously, and that her findings were open on the evidence. She noted that the actions of the mother were intended to be protective, but have been damaging. The single expert noted the mother as ‘torn’. The appeal judges concurred that the children would adopt the mothers certainty of abuse and reject the father should they live with her, and that the mother would be incapable of supporting a relationship with the father.
The appeal judges explained that the fathers absolute discretion on dispensing with supervised time was not akin to permanent supervision, as there was an expectation that the father would act reasonably, or the mother return to court with evidence to support supervision being dispensed with. Additionally, it was noted that the unreasonable refusal of the father to agree to appropriate unsupervised time would amount to sufficient change in circumstances to justify the reconsideration of the order.
Each ground of the appeal was found to fail, and the appeal was dismissed. The initial orders were maintained, and the mother was ordered to pay the costs of both the father and the Independent Children’s Lawyer.