ABBAS & ROWLEY

FAMILY COURT OF AUSTRALIA

ABBAS & ROWLEY

[2014] FamCA 819

FAMILY LAW – CHILDREN – Where allegations of exhibitionist sexual behaviour by the father made by the mother – where allegations that the father perpetrated two aggravated sexual assaults on the maternal aunt – whether there is an unacceptable risk – where detailed consideration as to the evidence and circumstances of the complaints – where finding as to no unacceptable risk – where evidence of the maternal aunt rejected – where child exhibits anxious/avoidant attachment style – where it is appropriate to gradually implement the child having substantial and significant time with the father – where it is appropriate having regard to the background circumstances for the parties and the child to be required to engage in ongoing family therapy.

FAMILY LAW – PROPERTY – Where minimal property for division – where a brief consideration of the financial relationship of the parties – where in the particular circumstances of the matter it is not just and equitable to make any order for property adjustment – application for property adjustment dismissed.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 75(2), 79

Goode and Goode (2006) FLC 93-286
MRR v GRR (2010) 240 CLR 461
M v M [1988] HCA 68
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405
Stanford v Stanford (2012) 247 CLR 108
Bevan & Bevan [2013] FamCAFC 116

APPLICANT:

Ms Abbas

RESPONDENT:

Mr Rowley

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

PAC

3264

2012

DATE DELIVERED:

26 September 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

19, 20, 21, 22, 23 May and 28, 29, 30 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Mater

SOLICITOR FOR THE APPLICANT:

Malouf Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Rosic

SOLICITOR FOR THE RESPONDENT:

Simone Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Boyle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

That the mother and father have equal shared parental responsibility for the child T Rowley born on … 2007.
That the child live with the mother.
That the child spend time with the father as follows:
(a)For 4 months from the date of these orders each Saturday from 9:00am to 5:30pm and from 9:00am to 5:30pm each alternate Sunday commencing on the first Sunday after the date of these orders, to be spent in the general presence of Mr and Mrs C with the father to collect the child from the mother and return the child to the mother at the conclusion of time;
(b)From 4 months after the date of these orders and during school term from 9:00am Saturday to 5:00pm Sunday each alternate weekend with the father to collect the child from the mother and return the child to the mother at the conclusion of time;
(c)From 6 months from the date of these orders and during school term each alternate weekend from 3:00pm Friday to 5:30pm Sunday with the father to collect the child from P Public School and return the child to the mother’s residence at the conclusion of time;
(d)From 9 months after the date of these orders and during school term each alternate weekend from 3:00pm Friday to 9:00am Monday with the father to collect the child from and return the child to P Public School at the conclusion of time;
(e)From 12 months from the date of orders and during school term each alternate weekend from 3:00pm Friday to 9:00am Tuesday with the father to collect the child from and return the child to P Public school at the conclusion of time;
(f)For 4 consecutive nights in the term one school holidays 2015 to be agreed between the parties and failing agreement for the last 4 nights of the school holiday commencing at 9:00am on the first day concluding at 5:30pm on the day before the resumption of term, commencing Term 2 school holidays 2015 and thereafter for half of each short school holidays such times to be agreed between the parties and failing agreement be the second half of each school holiday from 6:00pm on the midpoint Saturday of the holiday periods and concluding at 5:30pm on the last day before the commencement of school term;
(g)In the December school holidays 2015 for 2 occasions of 7 consecutive nights commencing at 9:00am on the first day concluding at 5:30pm on the last day to be agreed between the parties and in default of agreement for 2 such periods nominated by the father on not less than one month’s notice in writing to the mother provided that such periods shall be not less than 7 days apart and thereafter commencing December 2016 for half of the December school holiday periods commencing at 9:00am on the midpoint day of the holiday period and concluding at 5:30pm on the last Sunday of the holiday period before the resumption of school term;
(h)On Christmas Day 2014 from 2:00pm to 8:00pm and then commencing 2015 from 6:00pm 24 December until 6:00pm 25 December and thereafter in each alternate year and commencing 2016 from 6:00pm 25 December to 6:00pm 26 December and each alternate year thereafter;
(i)On Father’s Day if not a day when the child is otherwise spending time with the father from 9:00am to 5:00pm and commencing 2015 on the Father’s Day weekend from 6:00pm Saturday prior to Father’s Day to 7:00pm Sunday;
(j)On the father’s birthday from 4:00pm to 7:00pm if the day falls on a school day and otherwise from 9:00am to 5:00pm if not a day when the child is otherwise spending time with the father;
(k)On the child’s birthday from 4:00pm to 7:00pm in the event that the birthday is not on a day when the child is otherwise spending time with the father; and
(l)That the father shall have telephone communication with the child each Wednesday from 6:00pm to 7:00pm and for the purposes of this order the father shall initiate such call and the mother shall ensure that the child is available to receive the father’s call and afford to the child reasonable privacy during the child’s conversation with the father provided always that should the father and mother have appropriate technology the father is at liberty to communicate with the child otherwise by Skype, FaceTime or such other similar visual communication medium at such time.
That unless otherwise provided in these orders the mother shall deliver the child to the father’s residence at the commencement of his time with the child and the father shall return the child to the mother’s residence at the conclusion of his time with the child.
That in the event that the child is with the father on Mother’s Day the father shall return the child to the mother at 6:00pm on the Saturday prior to Mother’s Day.
That if the child is with the father on the mother’s birthday, not being a school day the father shall return the child to the mother from 9:00am to 5:00pm that day.
That the parties shall forthwith advise each other in writing of their current residential address, telephone number, mobile number and email addresses and shall advise the other of any change of same within 7 days.
That for the purposes of any written communication between the parties as provided for in these orders such communication may include SMS or email communication.
That the parties shall forthwith contact Dr V or such other therapist nominated by the independent children’s lawyer to make appointments for themselves and for the child to attend upon her and shall continue to attend upon such therapist for such time as the therapist advises and the parties shall attend upon the child’s general practitioner and if available obtain a mental health referral to facilitate the engagement of the child and the parties with the therapist on an ongoing basis and as required seek further mental health referrals in relation to such therapy.
That the independent children’s lawyer shall provide a copy of the report of Dr K dated 3 October 2013, Orders of this court and reasons for judgment to the therapist.
That the mother and father shall be at liberty to attend on occasions being occasions significant to the welfare of the child relating to education, schooling extra-curricular activities, sport, religious education and participation and other occasions significant to the welfare of the child where the attendance of either or both parents is to be reasonably expected.
That the mother shall be restrained from leaving the child in the care of Ms A born … 1964 without another adult being present, such adult to be a person other than the nephews or nieces of the said Ms A.
That the mother shall be restrained from allowing, permitting or facilitating the child from staying overnight in the same house as Ms A born … 1964.
That the mother shall be restrained from permitting, facilitating or allowing Ms A born … 1964 to attend any school events to which the parents are invited or attending.
That the mother and father are restrained from discussing these proceedings or denigrating the other party or members of the other party’s family in the hearing or presence of the child and shall use their best endeavours to ensure that no other person shall do so.
That each party shall do all things necessary to authorise the other to be able to receive information from the child’s school, treating doctors, allied health professionals, counsellors or the like and for this purpose a sealed copy of this order shall be each party’s sufficient authority to obtain such information.
Until further order the Applicant and the Respondent, by themselves, their servants or their agents are restrained from removing or attempting to remove the child T Rowley, female, born on … 2007 from the Commonwealth of Australia.
The Marshal of the Family Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said child from the Commonwealth of Australia.
Until further order the Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place the said child’s names on the Watch List, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia.
The Australian Federal Police maintain an airport watch of the said child on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to these orders.
That otherwise all applications before the court be dismissed.

BY CONSENT IT IS FURTHER ORDERED THAT:

That the father pay to Legal Aid, New South Wales within one month from this date the sum of $2,722 being outstanding costs payable by him in respect to the single expert’s fees.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Abbas & Rowley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3264 of 2012

Ms Abbas

Applicant

And

Mr Rowley

Respondent

REASONS FOR JUDGMENT

The present matter for determination involves the future living arrangements for the child T Rowley (“the child”) born in 2007 and determination of the competing property applications of the mother and father.
The mother’s application in the proceedings was filed on 31 July 2012.

Orders Sought at Trial

At trial the mother sought orders that in summary provided as follows:
a)That the child live with the mother;
b)That the mother have sole parental responsibility for the child;
c)That the child spend time with the father on a fortnightly period basis, in the first week for up to 3 hours each Wednesday and for 3 hours each Sunday between 12 noon and 3:00 pm and in the second week for 3 hours each Saturday between 12 noon and 3:00 pm;
d)That the child’s time with the father until the child attains the age of 13 years be supervised by a supervisor or supervisors nominated by the father and approved by the mother or in the alternative at a designated contact centre within 10 km of the Suburb P Post Office nominated by the father;
e)That the parties be restrained from removing the child from the Commonwealth of Australia and the child’s name be entered upon the airport watch list;
Property:
f)That there be a declaration that each party be solely entitled to the exclusion of the other of their present property and that otherwise there be no other order for alteration of property interests.
At trial the father sought orders that in summary provided:
a)That the mother and father have equal shared parental responsibility for the child;
b)That the child live with the mother;
c)That the child spend time with the father:
i)During school terms each alternate weekend from after-school Friday until before school Monday and each alternate Tuesday from after-school until the commencement of school the following Thursday;
ii)For one half of the New South Wales school holidays;
iii)The Father’s day weekend from 6:00 pm Saturday until 7:00 pm Sunday;
iv)The father’s birthday from 8:30 am to 8:00 pm;
v)The child’s birthday from 4:00 pm until 8:00 pm;
vi)In even numbered years from 6:00 pm 24 December until 6:00 pm 25 December and in odd numbered years from 6:00 pm 25 December until 6:00 pm 26 December;
d)That both parties be entitled to attend events significant to the welfare of the child including sport, extra-curricular activities and school functions and activities;
e)Telephone communication between the child and each parent;
f)Keeping each other informed of any significant developments in relation to the health or education of the child;
g)That the mother be restrained from residing with her sister Ms A whilst the child is residing with the mother;
Property:
h)That by way of property adjustment the mother pay to the father the sum of $12,000;
i)That the furniture, furnishings and effects of the parties be divided equally on a 2 lists basis;
j)That there be a splitting order in favour of the father from the mother’s superannuation in the sum of $33,354;
k)That the mother transfer to the husband one half of her ANZ shares;
l)That otherwise there be a declaration that each party be solely entitled to the exclusion of the other of their present property.
The orders sought by the independent children’s lawyer at the conclusion of the trial are set out later in these reasons.

The Proceedings

Subsequent to the mother filing her application, interim orders were made on 19 November 2012 that relevantly provided:
a)That an independent children’s lawyer be appointed to represent the interests of the child;
b)That by consent:
i)The child live with the mother;
ii)That the mother and father be restrained from removing the child from the Commonwealth of Australia and that the child’s name be placed on the airport watch list;
iii)That the child spend supervised time with the father for 2 hours each Saturday from 3:00pm to 5:00pm with such time to be supervised by the mother at the McDonald’s [Suburb P] or a nominated park at [Suburb P] and at such other times as may be agreed between the parties in writing;
iv)That the father have telephone contact with the child each Monday, Wednesday and Friday between 6:00pm and 7:00pm.
On 21 February 2013 proceedings were transferred from the then Federal Magistrates Court of Australia to this court and the mother and father were ordered to do all acts and things to enrol in the intake at the W Contact Centre for the purposes of the father spending supervised time with the child if so ordered.
On 15 April 2013 further interim orders were made by consent:
a)That the child live with the mother;
b)That the child spend time with the father commencing 27 April 2013 each Saturday from 12 noon to 3:00pm, commencing 22 May 2013 each Wednesday from 3:00pm to 7:00pm, commencing 25 May 2013 each alternate Saturday from 10:00am to 7:00pm and commencing 26 May 2013 each alternate Sunday from 10:00am to 4:00pm with such time to be supervised by either of 2 nominated supervisors; and
c)That the parties were restrained from discussing proceedings with the child or allowing any third person to do so.
The effect of the orders was that on each alternate weekend the child would spend each Saturday and Sunday with the father, each Wednesday evening with the father and each other Saturday with the father for three hours.
On 13 August 2013 Dr K was appointed single expert for the purposes of preparing a report in the proceedings.
Subsequent to the release of the single expert report the matter was listed on 29 November 2013 with trial directions being made and the parties being granted leave to approach the list clerk for allocation of trial dates. The matter was subsequently listed for hearing to commence on 19 May 2014 with four days allocated for trial. The matter was adjourned part heard for further hearing commencing 28 July 2014 allocating a further three days for trial.

Background

The mother is 45 years old and was born in the Middle East. She has lived in Australia since 1970 save for a period when she resided in the United States between 2003 and 2011.
The father is 46 years old and was born in the United States. The father is a United States citizen.
The parties met when the mother was working in City D in the United States in May 2003. The father worked for the same organisation.
The parties had commenced cohabitation in late 2004 residing in a rented apartment in City D.
The mother and father became engaged on 14 February 2005. At about the time of their engagement they purchased a home in nearby City W but did not live in the home until after their marriage. The home purchase was funded by a mortgage advance of US$273,579 and a deposit of US$10,000 paid by the mother. The mortgage advance represented virtually 100 per cent of the equity in the home.
In September 2005 the father ceased employment with his then employer. The mother complains that the father thereafter has made no genuine attempt to obtain appropriate employment.
In September 2005 the parties travelled to Australia and in October 2005 were married in Sydney.
The mother and father returned to reside in the United States later in October 2005 and commenced to reside in the home purchased by them in City W. The mother resumed her full-time employment in the USA.
The child T was born in 2007. The child is now seven years of age and attends P Public School where she is in Year 2. The child has settled well into her school and is engaged in various extra-curricular activities. The child is in good health.
Shortly prior to the birth of the child in 2007 the mother’s sister Ms A arrived to stay with the parties in their home in City W. The mother took three months leave from her employment following the birth of the child during which time she continued to breastfeed the child.
It is common ground that the mother’s sister assisted within the household while she stayed there not only with the care of the new baby but also in various household tasks. The father was present in the household full time as he remained out of work.
The mother’s sister returned to Australia in October 2007.
The mother returned to full-time employment on 3 October 2007 and following the departure of her sister back to Australia the father assumed the whole of the day to day care of the child in the household whilst the mother was at work mostly from 8:00 am to 5:00 pm and for longer hours between May and July each year. In 2008, 2009 and 2010 the mother was required to work most Saturdays. She says that on those Saturdays she usually took the child to work with her with the father accompanying the mother on about half of those Saturdays.

The mother complains that in the period from November 2007 until 2009 the father on occasions demonstrated some inattention in relation to the child. The mother, however, did not seek to change the care arrangements for the child.
The mother complains that there was an ongoing issue between her and the father as to his unwillingness to find work. By late 2007 the mother was struggling to meet the cost of the mortgage payments and to meet the living expenses of her household. On 5 November 2007 she obtained $20,000 by way of an employer loan to assist her to meet the parties’ financial obligations.
In 2008 the father obtained some work that he could do from home in terms of website maintenance and managing and selling website domain names. The mother is unaware as to what income was derived by the husband from this enterprise.
In early February 2008 the parties refinanced the home loan secured over the City W property in the amount of US$273,988.
The mother remained the primary income earner for the household. She continued to complain to the father about his inactivity in relation to applying for work. In 2009 the mother arranged for about $8,500 being moneys that she held in Australia to be forwarded to her to assist her financial position. These monies substantially came from her late mother’s estate. This remittance exhausted the mother’s inherited funds, the balance having been applied by her to the parties’ airfares, wedding and honeymoon.
In mid-2009 the child commenced attending preschool two days per week.

2011 in Sydney

In May 2011 the mother was transferred to Sydney in her employment. Her employer paid for the family’s return air tickets to Sydney and provided for apartment accommodation in Sydney. The family stayed in Sydney until 20 August 2011.
Whilst in Australia the mother was offered a permanent job with X Australia Ltd to commence on 12 September 2011. The father was reluctant to move to Australia to reside but as a consequence of the mother’s concern for their financial position and, she asserts, the father’s promise that they would spend only three years in the United States, the mother accepted the job offer on 8 August 2011.
The mother made application whilst in Australia for the child to be granted Australian citizenship by descent. This was granted on 17 August 2011. The father was in Australia on a visitor’s visa that expired in May 2012.
The mother’s sister Ms A offered for the parties to live at her home for a period of time until they could save up for a deposit to purchase a home in Australia.

Return to the US

The family returned to the United States on 20 August 2011 to attend to packing up their home and preparing to move to Australia. It was proposed that the home in City W be rented.
The mother and child return to Australia on 9 September 2011. The father was left to prepare the home for rental.

The Family in Sydney

After returning to Australia the mother and child commenced to reside at Ms A’s apartment at Suburb S in Sydney. The apartment was a one bedroom home unit in which Ms A occupied the main bedroom and mostly slept with the child and the father and mother slept on the pull-out sofa in the lounge room. The bathroom of the premises was behind a sliding door off the lounge room and the mother conceded there was a little privacy in that the shower and the toilet flushing could be heard from the lounge room.
The mother acknowledged this accommodation was cramped and there were difficulties with privacy in the apartment.
The father delayed in preparing the home for rental and his departure from Australia was changed from the proposed 20 September 2011 to 24 October 2011.
On his arrival in Sydney the father informed the mother that his family would complete preparation of the City W house for rental.
The father says that he was anxious for him and the mother to obtain independent accommodation. He had a poor relationship with the mother’s sister. In February 2012 the father communicated to the mother concerns about the relationship between Ms A and the child.
The family resided with the mother’s sister until final separation in October 2012.
Subsequent to separation the father has rented two rooms in premises owned by friends at Suburb PP. One of the rooms has been painted and furnished especially for the child.
The father concedes that on several occasions in early 2012 he had suggested at times that he might take the child to the United States. He says it was not his intention to alarm the mother but agreed that it could only inflame a difficult position. He also denied saying in front of the child that he was going to “put [Ms A] in gaol”.
The father considers that he and the mother are “on the same page” in relation to the child’s education. He asserts that he communicates well with the mother one on one when she is not influenced by others that often make communication difficult.

The Mother’s Concerns

The mother acknowledges that she comes from a very conservative and modest family, such that during her relationship with the father they did not expose themselves to each other except in bed and only after the lights were turned off.
The mother is of the opinion that the father is sexually uninhibited, voyeuristic and exhibitionist and that he acted in a sexually inappropriate manner throughout the marriage. The father, for his part denies any such behaviour or conduct although conceding the watching of pornographic material.
In December 2006 the mother purchased a telescope for the father and asserts that at least three occasions each week he would spend an hour or two looking into adjoining properties. The mother thought he was spying on people. The father denies the mother’s allegations.
The mother further complains that the father seemed obsessed with finding out information about teenage girls sporting competitions and would watch such competitions on the Internet or TV. In particular the mother complains the father would follow the girls sporting competitions for his former school B University in the United States. He would, she says, take her to local sports clubs where the father watched various forms of sport including female sport. On one occasion the mother asserts she accompanied the father to a B University girl’s gymnastic competition. The mother says that she felt uncomfortable in doing so. The father for his part says it was simply an interest for him following his old alma mater when its sporting teams came to town.
The mother further complains that whilst they were living in the home in City W from October 2005 until September 2011, a period of almost six years, that the father “on at least 5 or so occasions” when walking in the evening with the mother would stop and stare at a home where there would be a female at a window. The father denies such conduct.
From 2006 to 2008 the mother asserts that she observed the father watching pornography either on his computer or his TV in the theatre room on at least three occasions per month. The mother asserts that she felt shocked and uncomfortable with what she observed and did not watch pornography with him. The mother says that the father watched pornographic videos from the beginning of their marriage. On two occasions in 2008 and 2009 the mother asserts that she found the father watching pornographic videos whilst the child was in the room with him. The first occasion was when the child was about 18 months of age and the second when the child was two years old.
The father conceded to the single expert that he did watch pornography privately and that he was “ashamed” of this behaviour. The mother was unable to explain why this allegation did not form part of her initial affidavit in July 2012, although the mother conceded that she had no concerns in relation to the child by reason of the father’s conduct.
In 2008/2009 the mother’s niece F came to stay with the parties in their home in the USA for about three months. This was when the child was about 12 months old. The mother asserts that her niece made a complaint about the father saying “he is not a good person, he is not a good dad”. The mother subsequently rebuked the father telling him that he should not be walking around in pyjamas but should be dressed.
The mother has a vague recollection of her sister Ms A telling her in 2009 in the USA that the father had “flashed his penis”. The circumstances giving rise to this allegation are not known. Her sister also complained that the father would not close the bathroom door when showering or toileting. The mother did not talk to her sister about her concerns in relation to the father. Nor did the mother do anything arising out of her sister’s complaint, continuing to leave the day to day care of their daughter to the father while she was at work.
On three occasions over the six years the parties were living in City W the mother says that when they both observed news reports about a child rape or a paedophile matter the father would respond “he was probably lonely”. The mother asserts that these occasions caused her concern as they had the child in their household on some of these occasions.
The mother complains that from about 2010 she became very afraid of the father. She says there was no physical violence but that she felt controlled by the father who she says needed to know where she was at all times. She complains of ongoing controlling behaviour by the father such that she was afraid that he would take the child away from her.
She says that because of her fear she did not separate from him until 4 October 2012 and they “continued to live as if we were still married”.
Whilst the family resided in the Sydney apartment in 2011the mother asserts that on three or four occasions over that three month period the father after dark would spend about 30 minutes looking into nearby apartments. She spoke to the father who said “I’m not looking at anything; I’m just looking at the view”. The mother acknowledges that the apartment did afford water views nearby.
After the family came to Australia to live the mother complains that on three occasions between June and September 2012 she observed the child sitting on the father’s lap and the father rubbing the child’s back. The father denies there was anything untoward in this behaviour.
There is certainly an inference that perhaps the mother by reason of her background, as acknowledged by her, was somewhat hyper-vigilant.
In February 2012 the mother received an email from the father’s stepmother, Ms R and a short while later received a miscellany of documents from the paternal grandfather. The mother asserts that the handwriting on some of the documents is that of the father. The father denies it is his handwriting. There is no evidence adduced to resolve the issue. In early 2012 the paternal grandfather Mr R telephoned the mother, apologetically informing her that he thought that the father was a “paedophile”.
In April – May 2012 the mother sought legal advice in relation to her legal rights and obligations as far as the child was concerned. The mother expressed concern about the nature of the comments made to her by the paternal grandfather and paternal step-grandmother. By this time she had made a decision to separate from the father but she was concerned that the father would seek to take the child back to the United States. The mother sought advice clandestinely, concerned about the father’s reaction should he find out.
Somewhat surprisingly the mother did not confront or speak to the father about these circumstances and it was not until December 2012 following the parties’ separation that the mother once again communicated with the paternal grandfather and paternal step-grandmother. The mother was informed by Mr R, the paternal grandfather, that:
My daughter’s no longer talk to me, there are upset because I’m against [the father] … I would prefer [the child] live with you instead of with [the father] and [Ms E].
Presumably, referring to a suggestion that the father may bring the child to the USA to live with him and his mother, Ms E, in the United States.
It is of note that the mother’s application commencing these proceedings was filed on 31 July 2012 whilst the parties’ cohabitation, at least as the father knew, was still intact.
The mother’s application was supported by an affidavit sworn by her on 26 July 2012 and an affidavit by her sister Ms A. Her application sought final orders that she have sole parental responsibility for the child, that the child live with her and that the father have institutional supervised time with the child and be restrained from removing the child from the Commonwealth of Australia.
The mother’s affidavit sworn on 26 July 2012 at paragraph 9 asserts:
I have brought this application on an urgent basis as I am concerned that [the child] is at risk of being sexually abused by her father. I’m also concerned that he exposes to her (sic) to unusual and inappropriate sexual behaviour.
The mother’s application was first listed before the court on 17 September 2012 and on that day her solicitor appeared and had the matter adjourned to 17 October 2012 so as to facilitate service of the application. It is remarkable that service could not be affected in circumstances where the parties were still cohabiting and the mother expressed what she asserted to be serious concerns for the child.
The mother says in her oral evidence that the application was not served on the father because of her concerns as to his reaction and that he may take the child back to the USA. The mother says that her major concern was her fear that the father may take the child overseas. She acknowledged that if she had real fears of her child being sexually abused she would have taken steps to protect the child, which she did not. The mother conceded she had no evidence to support the foundation for her fears in relation to the child.
In August 2012 the mother reduced her working hours so she could spend more time with the child and she worked from 10 am until 2 pm. This she says facilitated her taking the child to school and picking the child up from school at the end of the day. Yet this is at odds with her affidavit sworn on 31 January 2013 (Exh O) where the mother deposes that most of the time during the few months prior to separation the father would pick up the child from school and take her to a park.
In the months prior to final separation the mother asserts that the child thrust her pelvis into the mother several times at least three or four times each week when they hugged. The mother says that on several occasions the child said to her “I like being slapped on the bottom and would like you to do that to me”. The mother told the child to stop this behaviour, to which the child made no response. The mother believed that the child exhibited this behaviour because she had been abused and that the child’s lack of response was covering up for the father.
The mother did not communicate any concerns arising from this behaviour to the father or indeed anyone else.
The mother acknowledged that the child would occasionally get a rash in the genital area and that on occasions she would think nothing of it and administer cream. But on other occasions she would think something sinister of it. Yet she at no time raised her concerns in this regard in her affidavits filed in these proceedings. The mother acknowledges that the child has ever said anything at any time to suggest that her father has hurt her.
It was at this time shortly prior to separation that the mother asserts that her sister Ms A first complained of the father “playing with himself”. Although the mother acknowledges that she did not see anything.
The mother complains that in early September 2012 the father in the presence of the mother said to the child “… I will take you back overseas with me and we can live there”. Notwithstanding the mother still did not effect service of her court application on the father.
Significantly, the mother says that on 9 January 2013 following engagement with a family consultant, her sister Ms A told her that the father had sexually assaulted her on two occasions. This date is also asserted by the mother in her affidavit sworn on 31 January 2013 (Exhibit O). The mother says that she is aware that her sister has reported this to the police. The mother also says that she is aware that her sister has suggested that she was drugged with a substance during both assaults.
On 9 January 2013, when Ms A suggested to the mother that the child and the mother may also have been drugged, the mother recalled that she felt very tired the next day after the assault in May 2012 and had aches and pains. The mother then recalled that she got her period only a few days later and when she recalled this, in January 2013, it made her think that something had happened.
The father was able to travel with the mother and child to Australia on the basis of a spouse/partner visa sponsored by the mother. Subsequent to separation and in March 2013 the mother purported to cancel her sponsorship of the father in contemplation that he would not be able to remain in Australia as a consequence. The mother had no regard to the child’s interests in the event that the father was deported. The prospect of the father’s deportation it appears had been an issue for some time including prior to separation as the mother’s sister Ms A reported to her general practitioner on 7 June 2012 that the father was likely “to be deported shortly”.
The inference arises that the mother and her sister had spoken of this issue together well prior to separation, notwithstanding the mother’s denials that this was not the case. This most likely arose as a consequence of the mother’s brother-in-law reporting to her that the child had said “my grandmother’s coming and will take me back to the US”. The child subsequently said to the mother’s sister that she would be in the USA for her fifth birthday, which is by July 2012.

Police Involvement

Ms A, the mother and their sister-in-law Ms Z attended the Police Station on the evening of 9 January 2013, sometime after leaving the mother’s solicitor’s office.
It was the mother’s expectation that as a consequence of what she was going to tell the police the father would be charged with a serious criminal offence and if convicted sentenced to imprisonment.
In the police incident report by Ms A contained in Exhibit F the following is recorded:
On 3 July 2007 the complainant … travelled to [City W] in the USA to visit her sister … and her husband, [Mr Rowley]. [The mother] was pregnant with her first child. The complainant was met at the airport by both [the mother] and [the father]. [The father] and the complainant drove to the above address, as [the mother] had to return to work. On the drive home, [the father] purchased a bottle of water for the complainant, who advised she was reluctant to drink it. When asked she could not explain why she was reluctant. Due to the hot day, the complainant advises she consumed the water and about one minute later felt very drowsy. She described her eyelids as feeling very heavy and that she was unable to keep her eyes open. She also described feeling weak. Upon arriving at the above address, the complainant remembers sitting on the sofa. She felt [the father] grab her hand and she stood up. She advises she cannot remember anything after this. The next thing the complainant remembers is waking in the guest room. She woke as [the father] was walking into her room. He said “[Ms A] wake up”. The complainant noticed she was not under the covers so she pulled the covers over herself. At this time, she was still fully clothed but her pants were unzipped in the front. [The father] left the room and the complainant stood up from the bed. She noticed her breasts and nipples were unusually sore. As she pulled down her pants she noticed four bruises on her lower abdomen and two bruises on her inner thighs. She described these bruises as round and small like finger marks. She also advised that her back was very sore. After the complainant had urinated she wiped her vagina and noticed blood on the toilet paper. She was scared and described “freezing” on the toilet. She advised [the father] called for her to come out of the bathroom. The complainant locked the bathroom door before eventually coming out. She advised she still felt drowsy but allowed her sister … to believe she was jet lagged. As a result of the above incident, the complainant believed she had been raped by [the father]. She did not seek any medical treatment and did not disclose the incident to any person. She said she couldn’t tell anybody because she felt terrible and isolated. The complainant advised she disclosed the incident to her sister-in-law [Ms Z] in September or October 2012.

The police incident report continues in the following terms in relation to an alleged incident in about May 2012:
Following the first incident, [the mother] gave birth … and the family ([Mr Rowley], [Ms Abbas] and [the child]) moved to Australia. They moved into the complainant [Ms A’s] address in [Suburb S] in October 2011. This address is a one bedroom unit. [The mother] and [the father] slept on the sofa bed in the lounge room and [the child] and the complainant shared a bed in the only bedroom. On an unknown date of the end of April or beginning of May 2012 the complainant advised the family were all watching television, when [the child] fell asleep very quickly. At the same time, the complainant alleges she and [the mother] also became very drowsy. All persons went to sleep as per the arrangements described above. The complainant advised she was asleep on her right side and woke to someone punching the left side of upper body with a closed fist. She felt punches to her shoulder, arm and ribs. She was then rolled onto her back. She heard [the father] say “Who’s going to help you now? How many times have I told you to stop moving? Stay still. Are those pictures going to come down to save you? If you stop moving it will be done.” The complainant open her eyes and saw [the child] still sleeping beside her. She felt pain as she was still being punched to her left side. She saw [the father’s] hands, felt one last punch to her left shoulder and passed out. She does not remember anything after this. The complainant woke later and was not able to speak properly. She advised she was calling out to her sister but her voice was ‘warbled’. She opened her eyes and saw [the mother] walking ‘wobbly’. She had a brief conversation with her sister before again passing out. When the complainant awoke her hair was out, the pyjama top was unbuttoned (two or three buttons) and her pants were down. She could not describe how far her pants were down, but remembered she had to hitch them up. She advised that she had a really sore back. [The mother] allegedly also complained of back pain. [The mother] allegedly called out to the complainant from the bathroom that she had her period again, although the complainant knew she had just finished it. The complainant also went to the toilet and noticed her breasts and nipples were sore. She urinated and again noticed blood on the paper when she wiped her vagina. The complainant advised she immediately told her sister not to let [the father] provide any food or water. [The mother] advised she did not think anything had happened but went along with her sister’s suggestion not to allow [the father] to prepare any food or drink to pacify her. When questioned more about her injuries, the complainant alleged they were the same as the first incident. When asked about the presence of semen, the complainant advised “Yes I had jelly both times.”
The police incident report then continues in the following terms:
CIRCUMSTANCES AS TO WHY REPORT IS DOUBTED AT THIS STAGE: [The father] and [the mother] separated in September or October 2012 and are currently before the Family Law Court in relation to their daughter [T]. When asked what she wished to achieve by reporting the incidence above, the complainant advised she wanted to help her sister and niece so they don’t have to be near [the father]. She also went onto (sic) say she wants him to feel helpless and stop him from doing it to anyone else. When it advised reporting a sexual assault during Family Court proceedings may negatively impact on the court process for her sister, the complainant was unsure about making a statement. It was explained to her the consequences of making a false statement and causing a police investigation. Despite this, the complainant advised she was telling the truth. The complainant suffers from depression and is medicated for this condition. It appears the complainant has a very close relationship with her sister and niece and from general conversation, it appears she had a very estranged relationship with [the father]. The complainant advised she was only attending the station to report the matter as she had been advised to do so by the Family Law Court solicitor …. [The mother] advised she had only recently remembered the event described above due to her sister talking of it. She advised she did not believe she or her daughter was sexually assaulted.
CONCERNS REGARDING THE CHILD: My concerns regarding the child are: The children’s parents have recently separated. There is an ongoing Family Law Court matter in relation to custody arrangements. The child’s maternal aunty, [Ms A], obviously suffers from a mental illness and has convinced herself she was drugged and sexually assaulted by the child’s father in America in 2007 and in May 2012 at her address in [Sydney]. The aunty has also convinced the child’s mother that she, [the mother], may have also been drugged and sexually assaulted by the child’s father on the same date in May 2012. She has also influenced the child’s mother to believe the child may have been drugged by the father on the same date. The child’s mother admitted to police there was no evidence to suggest this had occurred and she only just started to remember the night the child’s aunty is referring to because she continually speaks of it. The child’s aunty suffers from depression and anxiety and advised police her only intention in reporting the alleged incidents is to help her sister and the child to get away from the child’s father. Police believe the child may be at risk of psychological damage in that her mother and maternal aunty may influence her thoughts in relation to her father, to disadvantage him throughout the Family Law Court process.
The police incident reports (Exhibit F) note that on Wednesday, 16 January 2013 are both Ms A and the mother were contacted by phone by the police. Both wished to pursue the matter further and were willing to provide statements.
The mother’s sister did not complete a formal written statement to the Police until 25 January 2013.
At about 11:50am on 16 January 2013 the police made contact by phone with the father. He was advised as to minimal details but was made aware of a complaint had been made against him by the mother and her sister. He advised he had not seen either for months and only sees the mother at McDonald’s in relation to accessing his daughter. He was advised the complaint was historical. He was asked if he owned or had access to firearms as per the domestic violence legislation and advised he did not. He was provided the name and contact details of the police and advised he will be contacted in the future in relation to possibly providing his version of events in relation to the allegations. Alternatively he is to be contacted and advised if the investigation is rejected.
On 18 January 2013 the father received a telephone call from a detective in relation to the complaint by the mother’s sister. The father has had no further communication from the police whatsoever.
On 16 February 2013, about five weeks after the initial complaint, the mother provided to the New South Wales police a formal statement in relation to this alleged incident. The police statement includes the following passages:
In May 2012, on a date I do not remember, I woke in the morning with back pain. I normally have back pain but this pain was different. I had not injured myself or carried anything heavy. I also felt my vagina muscles were contracting, which was unusual because I normally only felt this when I had had sexual intercourse. I was having pain in my vagina.
[The father] and I did not been have sexual intercourse since August 2011. Between when my daughter was born and April 2011 we had only had sex about 10 times... 2 or 3 days later, I was bleeding from my vagina. This was unusual because I had ceased my “monthlies” one or 2 days prior. I had my period for 3 or 4 days and it was normal, other than it had come only 2 or 3 days after my last one.
I spoke to [Ms A] because I thought this was strange. [Ms A] told me to go and see the doctor. [Ms A] told me not to drink or eat anything because she thought [the father] was doing something to our food or drink…
On 9 January 2013 I went to a child dispute conference at the Family Law Court with [Ms A] and my sister-in-law [Ms Z]. [The father] was there.
After the conference, [Ms A], [Ms Z] and I went to my solicitors to tell him what had happened…….. I told him what had happened at the conference. [Ms A] then said “what if something had happened to someone?” He asked her what had happened. It took a while for her to answer but she finally said she had been raped. He told her to report it. She said it was a while back and he advised her to report it.
[Ms Z], [Ms A] and I went to [the] police station I was so angry with [the father] and felt annoyed that I had brought him to the country. I felt it was my fault he had the opportunity to do that to my sister. I think [Ms A] is telling the truth about what happened but I never saw anything that she is describing. I know [the father] acted differently around me than he did to other people.
No reference to the alleged assaults was made in the context of the family consultant’s interview on the 9 January 2013.
The mother’s police statement continues as follows:
I thought back to the incident in May 2012 when I had the back pain and thought it was similar to what my sister was describing. She said it felt like a dream and I thought so too. I still believe he may have drugged me. I don’t have any of those physical symptoms any more.
Despite this I have never seen [the father] physically or sexually hurt [the child] or [Ms A]. I was never physically or sexually hurt by [the father].
The mother concedes that her various concerns in relation to the safety of her daughter particularly bruising on the child near the genital area are not set out in her police statement. The mother asserts that she raised these issues with the officers concerned and it was her understanding that an officer informed her that it would be reported to the Department of Family and Community Services.
There is no evidence to suggest that there has been a report or that the mother sought to report it or follow-up whether a reported been made by the police.
The mother further concedes that her Notice of Abuse filed in these proceedings and prepared on 17 October 2012 makes no reference to any allegations of bruising on the child. Similarly the mother was unable to explain why other Notices of Abuse in July 2012 and February 2013 make no reference to these allegations.
The mother conceded that she had said nothing to anyone, including her sister Ms A, about her observation of bruises on the child, saying that she first thought about it at the family consultant’s interview on 9 January 2013.
The mother says that it was only after her sister raised allegations as to the father’s conduct and when her sister suggested that she may also have been assaulted that she thought back to the incident and that maybe she had also been assaulted. Prior to this the mother had given no thought to any circumstances that may have related to the alleged incidents. On reflection she had thought back to her symptoms at about the time of Ms A’s alleged assaults.
The mother says that at the time of the incident in May 2012 Ms A showed her bruising and informed the mother that she was bleeding. This assertion is in direct contrast to the evidence of Ms A, who gives no evidence of any such disclosure.
The mother asserted in her police statement that several days after the incident in May 2012 she was bleeding and at that time spoke to her sister as “I thought this was strange”. Yet the mother’s sister gives evidence that it was on the day of the alleged assaults that the mother complained to her that she was bleeding.
The mother’s medical records from her general practitioner (Exh M) reveal that on 11 May 2012 the mother consulted her doctor. The doctor notes that the mother reported no stress, urge incontinence, no dysuria and that her menstruation was a little irregular, no hot flushes. In response to her sister’s suggestion that she may have been drugged by the father a few days before the mother made no request of her doctor that she be tested nor made any complaint in relation to the incident to her doctor. The mother somewhat ingenuously asserts that she made no report or complaint to her doctor as most likely the father was with her at the consultation although conceding that she could well have telephoned the doctor at a later time.
Subsequently the mother attended on general practitioner on 8 October 2012 and reported that the father had moved out from the home and she did not know where he has moved to.
The mother’s medical records reveal and she acknowledges that she at no stage before separation made any complaint or sought to discuss with her general practitioner concerns arising out of her relationship with the father giving rise to concerns in relation to the protection of her daughter.

Ms A’s Police Statement

The mother’s sister attended at the police station on 25 January 2013 and completed a formal statement. In that statement she makes further complaints in relation to the father and his conduct, alleging:
a)That on an earlier trip to the United States in 2006 during the six weeks she stayed at the home of the mother and the father she on numerous occasions walked into the lounge room to find the father masturbating;
b)On occasions the father would shower in the ensuite attached to the room in which she was staying, showering with the door open;
c)On one occasion the father invited the mother’s sister to shower with him at which time he was naked from the waist down;
d)On occasions whilst sitting at the dining table the father would touch her feet with his;
e)That in respect to the incident in 2007:
i)The father had prior to giving her the water bottle he purchased for her said to her “here I opened it for you”;
ii)That as to the blood on the toilet paper it was not her period as she had never had her period regularly and the only time she had had periods was when she was on the contraceptive pill;
iii)That she wiped herself a second time and saw brown jelly on the paper and also saw there was the same brown jelly in her underwear;
iv)That at dinner that evening with the mother and father it was the mother who suggested that her tiredness might be jetlag;
v)That she slept with her suitcases against the door to stop the father coming into her bedroom;
vi)That after the mother returned to work about six weeks after the birth of the child and when she, the father and the child were at home she again observed him masturbating, he asked her to shower with him again and he walked around with no pants on;
vii)That she did not tell her sister what was happening; and
viii)In October 2007 she returned to Australia;
f)That in November 2009 she returned again to the United States. During this visit the father was rubbing himself up against her. He touched her back when she was doing the dishes, he walked around the house with no pants on;
g)That she had a phone conversation with the mother and told her what was happening in response to which the mother cried. She says she did not tell the mother that the father had raped her;
h)That the father on one occasion showed her a pornographic image on his laptop that was sitting on his lap;
i)That after the family returned from the United States and commenced to reside in her home at Suburb S she observes the father in her lounge room masturbating only two days after they arrived from the United States. She says the father continued residing at her home and on numerous occasions she saw him playing with his penis;
j)She says that she and the father had ongoing problems which she tried to report to the police and that P Public School knew of some of these problems;
k)That in relation to the incident in about May 2012 whilst the father was allegedly in her bedroom the mother walked into the room walking very unsteadily towards her. She says the mother bumped into the father and the father said “what’s wrong with your sister” to which the mother replied “I need to go to her”. He alleges that the mother then covered her and asked if she was all right to which Ms A replied: “I’m all right”;
l)The next morning Ms A alleges that the mother complained of back pain and that she was bleeding again;
m)That several days later she attended on her family doctor and told her family doctor about her back and rib pain, conceding that normally she did have chronic pain in her back due to osteoarthritis, osteoporosis and fractures and was currently on a significant medication regime for pain relief;
n)After she had been to the doctor Ms A alleges that that she asked the mother not to leave any food or water unattended in front of the father saying that she thought it was odd we all fell asleep at the same time and both woke up with the same symptoms of pain. She alleges she told the mother that she thought the father had spiked their drinks all food;
o)In September 2012 she alleges that she told her sister-in-law Ms Z that the father had raped her and telling her that he had spiked their food and drink and that the mother had been raped as well. In oral evidence Ms A asserted that she did not tell her sister-in-law of this until November 2012 after the parties’ separation;
p)That in December 2012 the mother went to the court in the Family Court in relation to custody of the child and the divorce. That the mother’s lawyer told us we should come to the police to report what had happened;
q)That since the incident she has had memory problems.
No action has been taken by the Police in relation to the complaints by the mother and her sister.
In a matter such as this where credit is very much in issue the mother did not call evidence from Ms Z as to the reporting by her sister Ms A of the allegations as to the father’s conduct. The inference can only be that such evidence would not have assisted the mother’s case.
Otherwise the mother gives no evidence supporting her sister as to the mother’s involvement in the incident alleged in May 2012 that the mother had come into the room and covered Ms A up.

Other Aspects of the Mother’s Oral Evidence

The mother resides in rental accommodation, having moved from her sister’s apartment in early April 2014. The mother conceded that after reading the report of the single expert in this matter it was appropriate for her and the child to live away from her sister. Perhaps inferring that she was removing herself from her sister’s control and influence.
The mother acknowledges that the child’s relationship with the father is important and it is good for the child for the father to have a role in her life.
The mother conceded that her concern that the father would take the child overseas was her major concern at the time when her initial court documents were prepared.
Further she further acknowledged that if she had a real fear that some sexual harm would come to the child she would have taken steps to protect the child and that she did not.
It was put to the mother that she had no foundation for any such fear to which she responded “I did but I did not have any evidence”.
The family consultant’s memorandum: The mother was confronted with the matters raised in the family consultant’s memorandum of 9 January 2013. The memorandum (Exh K) in outlining family safety factors notes the following:
a)Both parties said that there was no verbal or physical abuse in their relationship;
b)The mother alleged that she believed that the father had sexually abused the child and said that although (she) had no evidence that this was the case “as a mother that is what I feel”;
c)The mother said that she had been leaving the child alone in the care of the father until the final day before they separated;
d)The mother said that the father would look at young women and said she believed that he was more a sexual “stalker” than a “paedophile” as reported in her affidavit;
e)The father denied the allegations that he had sexually abused the child or that he was a “paedophile”. However, he said that if anyone was a “paedophile” it was the maternal aunt [Ms A]. He alleged that he found photos of the child in the shower on her camera and that the aunt would follow the child into the toilet and shower;
f)The mother alleged that the father had stalked her whilst they were in a relationship.

The memorandum also noted that both parties reported that for the majority of the child’s life the mother had been working and the father had been at home with the child. The family consultant identified issues impeding resolution as:
a)The father indicating his desire to reconcile his relationship with the mother;
b)The father reported a high level of conflict with the maternal aunt and that the aunt and his … step-mother were conspiring against him to try and ruin his marriage;
c)The mother was not able to provide a clear indication of what needed to occur in order for the child to spend unsupervised time with the father.
It was recommended that if practicable a Chapter 15 Report be completed by a child and family psychiatrist.
The mother says that the first time she was informed by her sister of the alleged conduct by the father in 2007 and 2012 was in the solicitor’s office after the family consultant interviews on 9 January 2013.
It is inexplicable and almost incredible that in circumstances where the mother’s sister alleges most serious criminal sexual acts that Ms A has made no reference or substantiated disclosure to anyone, other than her Doctor just prior to the parties’ separation, until such time as there was an allegation in the family consultant’s conference that she herself was a “paedophile”.
The mother conceded that she had no proof that she had been sexually assaulted by the father but just a “gut feeling”.
The mother further conceded that notwithstanding her assertions that she had seen bruises between her daughter’s legs that she took no steps to have the child medically examined, took no photographs, cannot recall making any enquiry of the child and made only a cursory enquiry of the father. These in circumstances where the mother alleges bruising near the child’s “private parts”, an appropriate need for a medical examination and her concern for the protection of the child. The mother did nothing.
Yet the mother gave evidence in response to the father’s complaint that Ms A would take the child into her bedroom and close the door, that this would happen three or four times per week. The mother said she could hear them playing together with the child laughing and giggling but that sometimes the child fell and hurt herself that necessitated the mother going in and comforting the child. The mother acknowledged that this behaviour was a real issue between the father and Ms A.
Asked as to whether there was any other incident that caused her concern in relation to the child the mother responded that when the child was about eight months of age and was having her nappy changed the child “had fear on her face”. The child was taken to the doctor in the USA who examined the child and said it was a normal nappy rash.
The mother says that she became aware of her niece Y’s complaint about the father after the mother asked her niece “if the father had done anything to hurt her or something she did not like”. No reference is made to this by the mother in her trial affidavit for the purposes of the hearing. The mother further acknowledges that her solicitor made enquiries of her other niece F in similar terms sometime after January 2013 and after her sister Ms A’s allegations.
The mother acknowledged that the child needed a father figure but strangely suggested that the child’s uncle could fulfil that role.
The mother rejected the assertion that her sister had undue influence over her. The mother agreed that her sister assisted in the collection of the child from school in the afternoons, and assisted at the school with supervised reading but not in the child’s class.
Somewhat incongruously the mother acknowledged that it would be nice for the child to have the father involved in her school activities and on the basis that those activities were at the school there would be no need for the father to be formally supervised.
The mother acknowledged that there were no significant issues that would prevent her and the father from talking about major long-term decisions involved in the exercise of long term equal shared parental responsibility. The mother further conceded that the father was involved as a parent at the school and was teaching the child to speak Spanish. The mother said that the father should have a role in the child’s schooling and it would be a positive contribution to the child’s development.
The mother describes the parties’ home in the United States as a two-storey home with the master bedroom downstairs to which is attached an ensuite bathroom and should you stand in the bedroom you would not be able to see the toilet in the bathroom.
When the mother’s sister visited she stayed in the master bedroom as it was difficult for her to negotiate to the stairs. She conceded it was not unusual while her sister was staying for the father to continue using the ensuite attached to the master bedroom downstairs.
The mother acknowledged to counsel for the independent children’s lawyer that prior to the birth of the child the mother had no concerns about the father looking after the child. When pressed as to any concerns in relation to the father’s care of the child before 2012 the mother identified three occasions that caused her concern – where the child on one occasion had a high temperature, with the child on another occasion fell off a carousel in a playground and on another occasion where the father left the child in a car unattended for a short period.
The mother then recalled some concerns in relation to the father feeding the child lunch during the day whilst the mother was at work on the basis that when she returned home to her perception the child was “starving” although the mother acknowledged that the child continued to put on weight as she was growing.
The mother suggested to counsel for the Independent Children’s Lawyer (“ICL”) that she first had worries about the child being abused by the father when the child commenced to exhibit pelvic thrusting actions in about August 2012. The mother acknowledged that this was subsequent to her first affidavit in July 2012 where she raised no concerns that the father had sexually abused child. The mother conceded that she could not therefore have had concerns about sexual abuse in July 2012.
The mother was taken to her complaint in her affidavit sworn on 26 July 2012 that she had seen the father whilst the child was sitting on his lap rub her back. She conceded that of itself this was not suggestive of anything untoward except “the way he looked at you”.
Subsequent to receiving communication from the paternal grandfather as to his concerns in relation to the father the mother, notwithstanding asserting that she was worried, did nothing to change the father’s substantial and significant involvement in the child’s day-to-day life so as to protect the child. The mother conceded that the father’s ongoing involvement with the child suited her as it facilitated her continuing in full-time employment.
The mother conceded that at no stage did she communicate any concern in relation to her fear that the father had sexually abused the child to her doctor or anyone else. She agreed that if she had serious concerns she would have told her doctor.
The mother rejected the contention that she may have been influenced by her sister in the way in which she reconstructed events. In response to the suggestion that her sister may have caused her to look differently on things in the past the mother responded: “it just made me think that the events – certain events that had happened, that could have been the answer to why. You know, understanding of what it is.”
The mother conceded the child was well settled in her school that also provides support for the child. The mother has made no enquiry of the school as to the child exhibiting any adverse behaviour or difficulties at school, particularly in circumstances where the father was involved in the child’s school and its activities. Somewhat concerningly the mother has provided to the school copies of court orders in these proceedings by letter from her solicitor dated 5 October 2012 that informed the school as to her allegations in relation to the father. As a consequence the father is no longer involved in the child’s activities at school.
The mother, asked to express any concerns in the six months prior to trial, gave evidence that the child complained of a sore stomach. It was the mother’s perception that this was caused by anxiety before visits with the father with the symptoms abating once the child returns to the mother. The mother considers it to be evidence that the child does not want to be alone with the father. She rejected that the symptoms could be the child being anxious in that she is not seeing her father as much, particularly having regard to the father’s significant involvement in the child’s life up until October 2012. The mother acknowledged that the child liked to see her father but rejected any suggestion that she was wrong about the cause of the child’s anxiety. It was the mother’s assertion that the child continues to complain.
The mother rejected any suggestion that she may need some counselling assistance after the court’s final determination, not considering it would be of any benefit to her. When asked whether she had thought about her own counsellor’s perceptions that she may be “a little reactive” and whether she might be distressed about own experience of the separation and putting that on to the child, the mother simply responded: “No”. The mother rejected the suggestion that she might be putting pressure on the child to feel a need to demonstrate loyalty to her.
Notwithstanding the child conveying to the single expert her concerns about the father “trying to get money off mum” and having nightmares where she had to try and get the family back together, the mother rejected any suggestion that she may have influenced to the child. However there is clearly a strong inference to that effect and to the effect that the child has been influenced by her aunt Ms A.
As a consequence the strong inference is that the mother remains hyper-vigilant.
The mother agreed that she would be able to make other after-school arrangements so as to avoid the necessity of her sister collecting the child after school and she would also be able to make arrangements for school holiday care to avoid the necessity of relying on her sister for the school holiday periods if other members of her family were unavailable.
When asked about her proposals that the child have only supervised time with the father until the age of 13, the mother acknowledged that there would be one day when she would need to talk to the child about the need for supervision. The mother responded that she would just have to tell the child the truth. In circumstances where the mother acknowledges that the child and the father had a close relationship until separation the mother agreed that informing the child that she might have been sexually abused by her father might be destructive of the child’s relationship with the father.
It is clear that in the event that there is a finding that there is no unacceptable risk in relation to the father having unsupervised time with the child the mother would struggle in terms of how she would explain that to the child in the context of her own protective concerns. In that circumstance the mother acknowledged that there might be some benefit in her having some counselling.
When asked about the proposals by the single expert for the child to spend time with the father in a kind of transition program and if the mother saw that proposal as a benefit for the child she simply said “but I don’t think that would work for her”. The mother agreed that it would not work for the child because of the mother’s concerns about abuse by the father. In the event of an order for unsupervised time the mother acknowledged it would be hard for her but conceded that counselling for her as recommended by the single expert might be of assistance.
Indeed the mother acknowledged that family counselling for both her and the father with the one counsellor would help particularly in terms of their communication with each other.

The Evidence of the Mother’s Sister: Ms A

The significance of the evidence of the mother’s sister is clearly evident from the matters set out above.
The mother’s sister is 50 years of age and has been in receipt of a disability support pension for the last 14 years, from when she was in her mid-30s. She suffered a work injury in about 1989 and has not worked since. As a consequence of ongoing pain from her injuries she takes what can only be described as a significant combination of painkilling medication both prescribed and over-the-counter.
She resides in housing commission accommodation at Suburb S. The accommodation is a one-bedroom flat that has been described above.
She gives evidence that she suffers from a number of conditions including osteoporosis, osteoarthritis, bone fractures and depression. She has for many years been taking significant amounts of prescribed medication to control her pain levels.
The mother’s sister has known the father since late 2003 and it appears that since that time she has treated him with some circumspection and suspicion. It is common ground that the father and Ms A have always had a poor relationship.
November 2005: she and her niece, named Y and then aged 13, travelled to the United States to stay with the mother and father at the home that they had recently purchased.
The wife’s siter and her niece stayed in the main bedroom in the downstairs portion of the home. That bedroom had an adjoining ensuite. This was the bedroom usually occupied by the father and mother and items of their clothing were in the walk-in wardrobe. The father and the mother during the stay of Ms A and her niece occupied an upstairs bedroom.
During the period that A and her niece stayed at the parties’ home the mother was at work Monday to Friday and the father was not working.
The mother’s sister gives evidence that the morning after her arrival she left her bedroom and observed the father sitting in the living room with his laptop on his lap, watching a pornographic video and masturbating. In cross examination she asserts that this occurred two-three days after her arrival in the United States and for the first time suggested she only saw his activity after he lifted up the laptop to “make sure that I see everything in view because he is so adorable”. When further pressed in cross examination she volunteered that the father said to her “hooray, look at me.” and then she sought to retract the comment as a “silly remark”.
She says that she was shocked and turned away and returned to the bedroom. About 10 minutes later she says she came out of the bedroom went to the kitchen to get water and prepare for breakfast and noticed that the father was still looking at his laptop and still masturbating.
From the kitchen she reprimanded the father saying “please turn that off and stop playing with yourself in the open. My niece will wake up soon and come out I don’t want her to see you do what you are doing. You shouldn’t do that where other people see you. Please have some respect. [Y] is only 13 and I don’t want her to see that. Please be decent.” The father laughed and continued to watch the laptop and masturbate.
Then Ms A asserts that she heard her niece coming from the bedroom and quickly escorted her to the dining room where she could not see the father, staying with her niece for 10-15 minutes in that room.
The mother’s sister asserts that she was shocked by the incident that she describes as “very bad” and caused her concern for the welfare of her niece.
The mother’s niece, Y: Evidence was given by the mother’s niece Y as to her stay with the parties in the United States in 2005. At the time of giving evidence Y was 22 years of age. At the time of the trip in 2005 she was 13 years of age.
She asserts that “on several occasions while residing with (the parties) I observed [the father] to grab his penis through his trousers and hold his hand there”. She says at this time she was sitting less than a metre away from the father on the lounge in the lounge room. She says that she observed the father hold his penis in this manner for about five minutes, saying that she became upset and comfortable and got up and left. When pressed in cross examination she conceded that the father’s action was more like having “his hand in his lap”. When it was suggested to her that there was no movement of the father’s hand referred to in her affidavit she surprisingly then recalled that indeed there was.
Thereafter she asserts that she avoided any further occasion when she was alone in the same room with the father. She says that she observed the same behaviour on at least two or three additional occasions over the following weeks.
In cross examination she confirmed that she had given no thought to her observations until such time as she knew that proceedings were coming before the court sometime in the last 12 months and just before she swore her affidavit on 7 May 2014.
When confronted with the suggestion that she had spoken to her aunt Ms A recently about the alleged incident she said that she in fact had spoken to her aunt when the incidents occurred. When pressed in cross examination Y ultimately conceded that she could not recall saying anything to her aunt in the United States other than she felt “uncomfortable” in regard to the father.
Regrettably and notwithstanding the very detailed evidence given by her aunt there was no suggestion by her aunt in the whole of the evidence that Y had spoken to her at all about what she alleged as to the father’s behaviour. Then when asked in cross examination if she had warned her cousin F about the father before she travelled to the United States in 2008, she replied that she did not.
Y gives evidence that whilst staying with the mother and father in the United States she observed the father watching pornographic material. Yet she confirmed in cross examination that she made no complaint to her aunt Ms A about it.
Otherwise Y confirmed that she had spoken to no-one else about the incidents in the USA including her parents and the mother.
The evidence of Y, who has regrettably become involved in these proceedings, is of little assistance to the court. Her various assertions as to the father’s conduct were not the subject of any complaint by her and it would be reasonably expected that if any complaint had been made that evidence of such complaint would have been placed very quickly before the court by the mother or Ms A.
It seems inexplicable that on returning to Australia she made no complaint to her parents and indeed did not warn her young cousin who was to travel to the United States in 2008 about her observations as to the father’s behaviour. Such circumstances cast significant doubt on her evidence.
In her affidavit of the 27 June 2012 (Exh R) the mother’s sister provides a less detailed recount of the incident, which in her trial affidavit is expanded with previous unseen detail.
The mother’s sister says that whilst staying in the parties’ home in the United States the father masturbated every day for six weeks in her presence. She says that she remained vigilant to ensure that her niece was not exposed to his conduct.
No complaint was made by Ms A to the mother who lived in the same home. The mother’s sister did not report the incident to anyone notwithstanding her asserted duty to protect her niece. Ms A did not seek to leave the home with her niece, unconvincingly suggesting she had nowhere to go. She could have returned to Australia with her niece, yet suggests that she had to stay “for her sister” and “I just wanted to spend time with my sister”.
Ms A suggests that she made no complaint because “it was a shameful thing to tell people about” proffering unconvincing reasons for making no complaint or report. Later she suggests she asked the father, the alleged perpetrator, to put a lock on the door of the bedroom occupied by her and her niece.

The maternal aunt:
The single expert expressed the view that it might assist the mother to be able to keep her sister at arm’s length if there was an order about the kind of contact she may have with the child rather than leaving it to the mother to enforce something. The expert acknowledged that an order would take it outside family relationships and assist the mother in terms of the complex family relationships in that it’s clear that the court order is outside her own prerogative.
Overnight time and time with the father:
The single expert expressed the view that it would be best, as it were, to get on with it and not defer to the commencement of therapy, so that in say three months’ time the orders would progress to one overnight period and then increase by a night every three months or so. He was of the view that would allow time for the mother to catch her breath and organise herself and also for the parties to commence engagement in therapy. Ideally the parties should be connected with the therapist before the commencement of overnight time unless that connection would prevent the commencement of overnight time within the timeframes recommended by him.
The expert was of the view that for the father’s time with the child it would be preferable that the time as it expanded out be in one block period so as to avoid multiple changeovers and issues that may arise from the child’s anxious- avoidant attachment style. As to school holidays, that issue could await the introduction of weekend time and thereafter during the next holiday period the child could spend a block of four days with the father and thereafter a week in the short holidays.
As to the ultimate progression in relation to the father’s time during school term, the single expert said:
I – I suppose I would put forward an overall view that, if the court comes to the conclusion that there isn’t significant risk in the father’s care, that it will be beneficial to have significant time with both parents because they’re quite different people, they’ve got different things to offer, there’s a potential in the mother’s setting with all her family around and everything that there’s not – that, if the father’s time is too small, that basically that will sort of wither and die. So it needs to be substantial enough to keep itself going. But, having said that, I formed an overall view that the mother is a more functional person day-to-day. She has been working, earning money, organising most stuff. The father appears to be less effective as a person. I suppose it depends a little on the court’s view about that. If the court formed a view closer to what’s described by the mother and in her recent affidavits that the father lives amongst piles of paper and is thoroughly disorganised and can’t get his act together, in a sense, then maybe it should be just three or four days. But I suppose the reason I would go more sort of four or five is that it does appear that when the child was in the father’s care she did get to preschool, she got to school, she had clothes on; even in the two or three months when mum had gone off to Australia she was still going to preschool. So the father seems to have an ability to care for the child in a day-to-day way, so if the court is satisfied that the father can organise the kid’s stuff, get her homework done, wash her clothes, get her to school, then I would go more towards the five days. If the court has some concerns about the father’s effectiveness as a person – whether he’s going to have a house to live in and be able to organise himself – then I would, I suppose, go more down to the three or four days. The reason I wouldn’t go to seven/seven is my impression that the mother is the more functional person and that, if she’s given the majority of time, she can organise the kid’s life well and feel more satisfied. Seven/seven is going to require a lot of collaboration. It’s going to be very frustrating for the mother. Because she’s a compliant person, I think she’s going to end up carrying a lot of what’s going on and - and I – I don’t think it’s going to be well set up for a positive experience for the child.

The Independent Children’s Lawyer

At the conclusion of the evidence of the independent children’s lawyer provided a minute of order proposed by the ICL.
In summary the orders propounded by the ICL are as follows;
a)That the mother and father have equal shared parental responsibility for the child;
b)That the child live with the mother;
c)That the child spend time with the father as follows:
i)For 3 months from the date of the orders each Saturday from 9:00am to 5:30pm to be spent in the general presence of Mr and Mrs C with the father to collect the child from the mother and return the child to the mother at the conclusion of time;
ii)From 3 months after the date of orders from 9:00am Saturday to 5:00pm Sunday each alternate weekend;
iii)From 6 months from the date of these orders each alternate weekend from 3:00pm Friday to 5:30pm Sunday with the father to collect the child from P Public School and return the child to the mother’s residence at the conclusion of time;
iv)From 9 months after the date of these orders each alternate weekend from 3:00pm Friday to 9:00am Monday with the father to collect the child from and return the child to P Public School at the conclusion of time;
v)From 12 months from the date of orders each alternate weekend from 3:00pm Friday to 9:00am Tuesday with the father to collect the child from and return the child to P Public School at the conclusion of time;
vi)In December 2014 for 4 consecutive nights during the school holidays on 2 separate occasions such time is to be agreed between the parties;
vii)For 4 consecutive nights in the term one school holidays to be agreed between the parties and failing agreement for the last 4 days of the school holiday, commencing July 2015 school holidays and thereafter for half of each short school holidays such times to be agreed between the parties and failing agreement be the second half of each school holiday;
viii)In the December school holidays 2015 for 2 occasions of 7 consecutive nights to be agreed between the parties and thereafter commencing December 2016 for half of the December school holiday periods;
ix)On Christmas Day 2014 from 2:00pm to 8:00pm and then commencing 2015 from 6:00pm 24 December until 6:00pm 25 December and thereafter in each alternate year and commencing 2016 from 6:00pm 25 December to 6:00pm 26 December and each alternate year thereafter;
x)On Father’s Day if not a day when the child is otherwise spending time with the father from 9:00am to 5:00pm and commencing 2015 on the Father’s Day weekend from 6:00pm Saturday prior to Father’s Day to 7:00pm Sunday;
xi)On the father’s birthday from 4:00pm to 7:00pm if the days falls on a school day and otherwise from 9:00am to 5:00pm if not a day when the child is otherwise spending time with the father;
xii)On the child’s birthday from 4:00pm to 7:00pm in the event that the birthday is not on a day when the child is otherwise spending time with the father;
d)That unless otherwise indicated in these orders the father shall collect the child from the mother’s residence at the commencement of his time with the child and the mother shall collect the child from the father’s residence at the conclusion of his time with the child;
e)That in the event that the child is with the father on Mother’s Day the father shall return the child to the mother at 9:00am;
f)That if the child is with the father on the mother’s birthday the father shall return the child to the mother at 9:00am;
g)That the parties shall forthwith advise each other of their current residential address, telephone number, mobile number and email addresses and shall advise the other of any change of same within 14 days;
h)That the parties shall forthwith contact Dr V or such other therapist nominated by the independent children’s lawyer to make appointments for themselves and for the child to attend upon her and shall continue to attend upon such therapist for such time as the therapist advises;
i)That the report of Dr K dated 3 October 2013, orders of this court and reasons for judgment be released to the therapist;
j)That the mother and father shall be at liberty to attend all school functions to which parents are invited;
k)That the mother shall ensure that the child is not left in the care of Ms A born … 1964 without another adult being present such adult to be a person other than the nephews or nieces of the said Ms A;
l)That the mother shall ensure that the child does not stay overnight in the same house as Ms A born … 1964;
m)That the mother shall use her best endeavours to ensure that Ms A born … 1964 does not attend any school events to which the parents are invited or attending;
n)That both parties shall ensure that they do not discuss these proceedings or denigrate the other party or members of the other party’s family in the hearing or presence of the child;
o)That the father shall have telephone time with the child each Thursday from 6:00pm to 7:00pm;
p)That each party shall authorise the other so they are able to receive information from the child’s school, treating doctors, allied health professionals, counsellors or the like.
The father was supportive of the orders sought by the independent children’s lawyer save that the father sought to have time with the child each other alternate Sunday as the orders proposed reduced the child’s present regime with the father. Further the father sought the inclusion of a midweek overnight time upon the commencement of overnight time.
Further the father sought an order that the child’s name be placed on the watch list. The mother agreed that the name of the child should be placed on the airport watch list.

Discussion

The relevant principles in relation to parenting proceedings are well settled: see Goode and Goode (2006) FLC 93-286.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) Parents should agree about the future parenting of their children; and
(e) Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The presumption does not apply in respect of final proceedings where:
a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];
b)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
If the presumption in section 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of section 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
The Full Court in Goode (supra) provided a “framework” as to how applications for parenting orders are to be determined. The High Court in MRR v GRR (2010) 240 CLR 461 affirmed the legislative pathway.

The Primary Considerations: s 60CC(2)

The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Section 60CC(2)(b) – Need to Protect: Unacceptable risk?

This primary consideration, as noted above, is in reality, the nub of these proceedings.
In the context of this matter it is appropriate to consider the need to protect as the first consideration as the court’s determination in that regard fashions an understanding and application of the subsequent considerations.
The Court is required to determine whether there is an “unacceptable risk” of harm to the child as asserted by the mother or otherwise.
As the High Court said in M v M [1988] HCA 68:
24. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. …
25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a ‘risk of serious harm’ (A v A [1976] VicRp 24; (1976) VR 298 at p 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M FLC 91-830 at pp 76,240-76,242; (1987) 11 Fam LR 765 at pp 770 and 771 respectively), ‘a real possibility’ (B and B [ Access] (1986) FLC 91-758 at p 75,545), a ‘real risk’ (Leveque v Leveque (1983) 54 BCLR 164 at p 167), and an ‘unacceptable risk’ (In Re G (a minor) (1987) 1 WLR 1461 at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
For reasons set out above the court has rejected the evidence of the mother’s sister Ms A. Her allegations are fundamental to the mother’s case of risk. In the event that they have now fallen by the wayside, the mother’s own concerns having been substantially derived from the allegations made by her sister fall away.
That is, save for the mother’s concerns in relation to the father watching pornography and her perception that the child could be exposed to that behaviour.
In all of the circumstances the court is not satisfied that there is any unacceptable risk of the child spending time with the father. However that being said, the court is satisfied that it is appropriate to move cautiously in relation to an expansion of the child’s time with the father so as to firstly address the mother’s concerns and secondly be mindful of the child’s anxious-avoidant attachment style.
Meaningful relationships:
In Mazorski & Albright [2007] FamCA 520, Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive (sic) one. Quantitive (sic) concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark (2009) FLC 93-405 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
Some of the Court’s considerations below also impact on this factor. The primary concern is the determination of orders that would prospectively facilitate a meaningful relationship between the child and the father. The capacity for that relationship to be developed is, at present, significantly impaired by the mother’s reservations as to the prospective risk to the child posed by the father. A cautious approach as submitted by the independent children’s lawyer in all circumstances seems appropriate so as to develop a significant and meaningful relationship between the child and the father.

Best Interests of the Children: The Additional Considerations: s 60CC(3)

The Court has had regard to each of the additional considerations set out in section 60CC(3) of the Act. The relevant considerations are as follows:
(a)Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
These are referred to in the context of the Single Expert report considered above. Whilst the child is young, she has a view that she would like time with each of her parents. Little weight can be given to those views in the overarching issue of risk but her view is reflective more perhaps of the child’s established relationships with both parents.
(b)The nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child);
The child’s relationships with each parent are considered above. Subject to the court’s determination as to there being no adverse risk, the nature of the child’s relationships are indicative of a proper progression of the child’s time with the father and the child living primarily with the mother.
(c)The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The factual matters pertaining to this consideration are set out above. To the credit of the mother, she has continued to facilitate the father’s time with the child albeit under a form of supervision during the continuation of these proceedings.
The tenor of the single expert’s report is that provided the father’s time progresses cautiously and the parties and the child engage in therapy both parents have the capacity to facilitate a relationship between the child and the other parent.
The single expert’s report sounds a strong warning to the mother that in the event of further allegations being made without merit there is a recommendation that the child reside with the father and he be able to relocate to the United States with the child.
(d) The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The orders sought by the ICL and supported by the father raise no significant issue in relation to this consideration. The child’s time would progress cautiously to a position where the child would be enjoying substantial and significant time with the father in about 12 months hence.
This is not likely to have any adverse effect on the child and indeed can only enhance the child’s relationship firstly between the child and the father and secondly between the child and both parents by hopefully alleviating much of the child’s anxious attachment issues.
The mother’s proposal as to ongoing supervision would simply see the current situation continuing. That is not in the child’s best interests in the context of the court’s findings as to no unacceptable risk.
(e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
There is no practical difficulty and expense in this regard subject to the implementation of appropriate orders.
(f) The capacity of each of the child's parents, and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs;
The single expert is of the view that subject to the court’s favourable determination in relation to the question of adverse risk that both parties have appropriate capacity in this regard.
The mother now has appropriate independent accommodation and is in full-time employment.
The father has appropriate accommodation and seems to have some expectation other than his present manual work of being able to move into the workforce commensurate with his training and skills into the foreseeable future.
Both parties will engage in therapy to be provided for in orders made and both parties are appropriately engaged in relation to the child’s schooling.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
…
(h)      If the child is an Aboriginal child or Torres Strait Islander child;
…
(i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
A consideration of this factor is overshadowed by the allegations of risk emanating from the maternal family in relation to the child and the father. The mother for her part has been overwhelmed by the influence and allegations of her sister. In a fashion she seems to attempt to distance herself from the allegations of which she has no direct knowledge and of which she was not aware until January 2013. However for her own purposes she has in the context of these proceedings embraced the allegations in what she perceives to be a protective stance in relation to the child. It is hoped that the court’s determination in these proceedings will clear the way for her to be more focused on her responsibilities of parenthood into the future.
The father for his part, while professing that he holds the best interests of his child dear, has remained out of the workforce now for quite some time. The single expert makes some observations in relation to this aspect of his psychological make-up and it is the court’s expectation of him that he will as soon as practicable obtain appropriate and meaningful employment in order to be able to make a reasonable financial contribution to the costs of his daughter.
Both parties it appears will be able to communicate appropriately into the future and will be assisted by ongoing therapy.
(j) Any family violence involving the child or a member of the child's family;
The single expert report rejects any assertion as to family violence. However the single expert comments on the mothers allegations as to coercion and control. The court is not satisfied that the conduct of the father in any way falls within the definition of family violence.
(k)       If a family violence order applies:
…
(l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
Parenting orders in relation to the subject child can only be made in the context of the present circumstances of the child as they are. The orders indicated are orders that build upon the child’s relationship with the father in circumstances where the mother’s concerns are also addressed and given the opportunity to abate.
The single expert makes it quite clear in what circumstances the proceedings may well come back before the court. The court is unable to make orders that would prevent that circumstance. However the orders to be made are those perceived by the court to be least likely to lead to the institution of further proceedings in relation to the child.
(m)      Any other fact or circumstance that the court thinks is relevant;
…

The Presumption of Equal Shared Parental Responsibility

Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility. That presumption may be rebutted in circumstances set out above.
The independent children’s lawyer seeks an order for equal shared parental responsibility as does the father. The mother opposes such an order on the basis of risk. The question of unacceptable risk having been determined the court is satisfied that it is appropriate for the presumption to apply there being no circumstances that would lead to the rebuttal of the presumption.
As a consequence of the presumption applying, the Court is required to consider the provisions of section 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. For the reasons set out above equal time or substantial and significant time at this juncture is not in the best interests of the child. Accordingly the court is not required to consider whether such arrangements would in all the circumstances be reasonably practicable
The court is satisfied that it is appropriate and in the best interests of the child that orders be made substantially in terms of those sought by the independent children’s lawyer. Orders will be made accordingly.

Property

At the commencement of the parties’ cohabitation the assets of the parties as best can be determined comprise the following:
a)Money lent by the mother to her brother  $30,000
b)Mother’s accrued ANZ Superannuation  Not known
c)Mother’s ANZ employee share scheme shares                 Not known
d)Mother’s accrued Portfolio Care Superannuation Not known
The mother ceased employment with the ANZ Bank prior to 2003 at which time she obtained work as a supervisor at O Group in the United States.
It is inferred that her ANZ entitlements to both shares and superannuation were accumulated well prior to the parties’ cohabitation.
The mother’s evidence is that during the period of her employment she had received under the ANZ employee share scheme about 90 shares and as a consequence of a dividend reinvestment scheme those shares have grown in number without contribution by the mother to about 383 shares having a value now of about $12,500.
Similarly it is to be inferred that the mother’s ANZ superannuation in respect to which contributions by the employer ceased well prior to the parties’ cohabitation continued after the cessation of her employment with the bank to accrue interest. By December 2013 that superannuation had accrued to $58,318.
Similarly the mother’s evidence is that her Portfolio Care Superannuation had accumulated prior to her leaving for the United States to take up employment in 2003. That superannuation interest is to be inferred has simply grown over the years by interest earned in the fund without contribution by the mother.
The mother had in about 2003 lent to her brother the sum of $30,000. Funds to make the advance to her brother came from the sale of a property previously owned by the mother at Suburb P that was sold in about 2003.
The loan was disclosed by the mother in her financial statement filed in February 2013. However subsequent to that time the monies have been called up by her from time to time and applied by her to payment of her bills including about $10-12,000 for legal expenses in 2013, car rental expenses, removalist expenses including truck rental, bills and gifts for the child.
It is not contended by the father that he made any contribution to the funds initially advanced by the mother to her brother.
The property in City W was placed with a property manager and the property was tenanted from early January 2012. The property remained tenanted until September 2013 when the property was repossessed by the mortgagee.
Prior to repossession of the property mortgage payments were paid to the mother’s Wells Fargo account in the United States and mortgage payments were paid from that account to the mortgagee. By November 2012 the mother expressed her concerns to the father that the funds in her Wells Fargo account were insufficient to meet mortgage payments. Notwithstanding that the mother transferred $2,126 from Australia to the account. Her United States tax refund of US$7,410 was paid into the account as was the proceeds of sale of the parties’ car in the United States of US$7,500. Notwithstanding, the mortgage went into default. A mortgagee sale was affected in October 2013 and no funds were realised from that sale payable to the mother and father.
Surprisingly the father made no enquiries as to the mortgagee sale price of their home, simply asserting that his mail goes to his mother’s address.
During the course of the parties’ cohabitation prior to the birth of the child both parties were in employment until about September 2005 when the father’s then salaried employment ceased. Thereafter the mother has been the primary income earner in the household and the father, until the parties’ separation in late 2012, assuming the role of “househusband”.
In 2004 the mother received an inheritance from her late mother’s estate. These funds were initially held as part of an overall sum of about $150,000 in a bank account in the name of the mother, her sister Ms A and her other sister Ms U. The mother applied her share of the inheritance being $50,000 to the parties’ wedding, honeymoon and to expenses in respect to living in the United States. In the context of how the funds were expended the inheritance represented a significant contribution by the mother.
In about late 2011 or the beginning of 2012 the wife purchased a BMW motor vehicle for the sum of about $6,000 from funds available to her in savings at that time. After purchase the motor vehicle was registered in the mother’s nephew’s name as it was a gift to him. As at the date of trial the motor vehicle is registered in the name of the mother’s sister Ms A. The mother has the use of the motor vehicle from time to time particularly for the purpose of taking the child to see the father on Saturdays. Prior to purchase of the car the mother used rental cars for this purpose but could no longer afford the ongoing cost of renting vehicles.
Subsequent to the parties returning to Australia the father was subject to the conditions of a bridging visa that precluded him from obtaining employment. The mother acknowledges that the father was unable to obtain employment until he got permanent residency in Australia in November 2013. However the mother asserts that it was her expectation that the father would make application for and obtain a working visa. The father did not do so.
The mother has accumulated entitlements in two superannuation schemes, firstly AMP and secondly ANZ Australian Staff Superannuation Scheme. The mother’s financial statement filed on 15 May 2014 reveals that her accumulated superannuation entitlements comprise the following:
a)AMP (X Staff Superannuation)                  $16,422 (21 March 2014)
b)ANZ superannuation   $58,318 (12 March 2014)
c)Portfolio Care   $24,131 (31 December 2013)
There is no evidence as to the value of the mother’s superannuation entitlements at the commencement of cohabitation.
During the period of the mother’s employment in the United States she had no entitlement to nor did she accumulate any superannuation interest except for a period of three months when she first commenced in the USA. This modest accrual was well before cohabitation and was paid whilst she remained for that period an employee of the Australian branch of her employer, thereafter she became an employee of the USA office.
The mother joined the AMP fund on 12 September 2011 after the family returned to Australia from the United States. She was a member of that fund until the parties’ final separation in October 2012. During this period the mother was in full-time employment whilst the father assumed the role, at least while the mother was at work, of a primary carer for the child of the relationship. To this extent the father made an indirect contribution to this superannuation entitlement of the mother. The mother had been a member of the fund for just over two years as at the date of the benefit statement (Exh P), so doing the best on the evidence available about $7,500 of the mother’s benefit relevantly accrued during cohabitation.
It is not contended by the father that he made any contribution to the mother’s other superannuation entitlements or her ANZ shares.
The mother is presently in employment that she describes as temporary, working about 30 hours per week with a gross annual salary at present of $55,796. From her income the mother pays rent of $360 per week with a significant commitment of about $360 per week in relation to two bank loans totalling about $83,000 borrowed by her for the purposes of legal expenses in relation to these proceedings. The mother receives child support from the father of $7 per week in addition to which she receives supplementary family allowance payments of about $80 per week from Centrelink.
The father works as a labourer earning about $150 a day when he works. He may work two, three, four or even five days per week depending on work available. On the days that he works he works from about 6:00 am until the job is finished. In addition the husband runs a small enterprise selling internet domain names. He asserts that his income from this activity is minimal devoting about five to 10 hours per week to the enterprise. Otherwise he has applied for several jobs unsuccessfully in his area of expertise, being computers. He has total of a few hundred dollars in two bank accounts and no superannuation. He has borrowed from his mother the sum of $25,000 and paid from that loan $20,000 towards his legal fees. He has outstanding legal fees.
The husband at present has a child-support assessment of $9.92 per week.
The mother seeks an order that there be no order for property alteration to the effect that she and the father each retain what remains in their present possession.
For his part of the father seeks property orders that in summary provide for:
a)Payment by the wife to him of $12,000;
b)That the wife transfer to him any interest or entitlement she may have in Q LLC;
c)That the parties divide their furniture, furnishings and effects equally and in default of agreement there be a division based upon a two lists arrangement;
d)That there be a splitting order to the husband from the wife’s superannuation in the sum of $33,354;
e)That otherwise each of the parties retain what else remains in their respective entitlement or possession.
In closing submissions it was submitted on behalf of the father that the only appropriate order was a splitting order and the father sought none of the other orders set out.
It was submitted on behalf of the mother that no order should be made at all.
The approach to the determination of an application under s 79 of the Family Law Act 1975 (Cth) (“the Act”) is set out in Stanford v Stanford (2012) 247 CLR 108 and that decision was the subject of detailed consideration by the Full Court in Bevan & Bevan [2013] FamCAFC 116.
The court should firstly identify the present assets, financial resources and liabilities of the parties.
The court should then consider whether, having regard to the circumstances before it, it would be unjust and unfair not to make orders for alteration of the property interests of the parties having regard to the provisions of s 79(2) of the Act.
Both parties seek disparate orders in relation to property in the circumstances referred to above. It is appropriate that orders be made to resolve the wife’s application.
The court can then proceed to consider the contributions by each of the parties as contemplated by s 79(4)(a) – (c) of the Act.
Having determined the contribution-based entitlements of the parties, the court can then consider the various factors set out in s 75(2) of the Act and whether any further adjustment to the parties’ contribution-based entitlements is appropriate.
The court is then required to consider the justice and equity of the proposed orders and whether in all the circumstances the orders to be made are appropriate.

The Present Asset Pool

Present asset pool of the parties as it can be determined is as follows:
Wife AMP (X Staff Superannuation)                  $16,422 (21 March 2014)
Wife ANZ superannuation  $58,318 (12 March 2014)
WifePortfolio Care Supnn  $24,131 (31 December 2013)
Wife    Money at Bank  $ 4,559
Wife    ANZ Shares  $12,577
Wife    Personalty  $ 5,000
Husb   Money at Bank   $     503
Husb   Car   $ 3,500
Husb Q LLC  $ 3,057
Husb Personalty   $ 5,500
Liabilities:
Wife    ANZ personal loan   $38,108
Wife    Credit card  $ 1,913
Wife    St George P Loan  $44,524
Husb Personal loan – mother  $25,000
Husb Unpaid legal fees   $70,000
Wife Unpaid legal fees   $27,000
In submissions counsel for the mother revealed that her legal fees to date in the proceedings were approximately $200,000 of which $27,000 remained unpaid and the balance of about $173,000 had been paid from the mother’s income and borrowings by her.
In considering whether it is just and equitable to make an order for property adjustment out of the present asset pool it is significant that the only assets of substance are the mother’s superannuation entitlements that either accrued before cohabitation or mostly after separation. Otherwise the ANZ shareholding accrued as a consequence of shares issued to her when she was employed by that bank prior to cohabitation which had accumulated as a consequence of a dividend reinvestment scheme since she ceased employment with the bank.
Otherwise both parties have modest assets available to them, it appears mostly as a consequence of post separation accumulation with the only assets remaining in their possession referable to the cohabitation perhaps being items of personalty that have come from the United States or indeed remain at least on the father’s case in storage in the United States.
In all the circumstances the court is not satisfied that it is just and equitable to make an order for property adjustment as between the mother and father.
The father’s application for property adjustment will be dismissed.

I certify that the preceding three hundred and eighty-seven (387) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 26 September 2014.

Associate:

Date: 26 September 2014

[2014] FamCA 819

26 September 2014

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Family Law

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