FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Adesina & Crowe [2023] FedCFamC1F 475
File number: AYC 32 of 2020 Judgment of: HARTNETT J Date of judgment: 14 June 2023 Catchwords: FAMILY LAW – PARENTING – Parental responsibility – Where each parent seeks sole parental responsibility – Where the father has not seen the child since separation – Where the mother has unilaterally relocated the child – Where the mother alleges the father is an unacceptable risk – Where the mother makes sexual abuse allegations – Where the father denies allegations – No finding of sexual abuse – Orders for equal shared parental responsibility, save the father to have sole parental responsibility regarding educational decisions – The mother to relocate child’s residence – Restraint on the mother further relocating the child – Child to attend upon a counsellor – Child to live with the mother and spend supervised time with father – Child’s time with the father to increase – Recovery Order to be issued if the mother does not relocate the child’s residence – The mother to continuing attending upon a psychiatrist Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Part VII, ss 4AB, 60CA, 60CC, 61DA, 65DAC, 68B, 68C, 68L, 69ZW, 102NA
Cases cited: Blinko & Blinko [2015] FamCAFC 146
Cotton & Cotton (1983) FLC 91-330
Fitzwater v Fitzwater (2019) 60 Fam LR 212
Isles & Nelissen (2022) 65 Fam LR 288
Loddington & Derringford (No 2) [2008] FamCA 925
M & M (1988) 166 CLR 69
McCall & Clark (2009) FLC 93-405
Mulvany & Lane (2009) FLC 93-404
Rigby & Olsen [2021] FedCFamC1A 46
R & C [1993] FamCA 62
Division: Division 1 First Instance Number of paragraphs: 234 Date of last submissions: 16 May 2023 Date of hearing: 24-26 April 2023 Place: Delivered in Melbourne Counsel for the Applicant: Mr McMahon Solicitor for the Applicant: Christina Lam & Associates Counsel for the Respondent: Ms Kati Solicitor for the Respondent: Blomfield Legal Counsel for the Independent Children's Lawyer: Mr Gardiner Solicitor for the Independent Children's Lawyer: Joliman Lawyers ORDERS
AYC 32 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ADESINA
Applicant
AND: MS CROWE
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HARTNETT J
DATE OF ORDER:
14 June 2023
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.Subject to Order 12 herein, the mother and father have equal shared parental responsibility for the child of the relationship, namely X, born 2015, save as to educational decisions which shall be made solely by the father.
3.Within 28 days from the date of these orders, the mother relocate the child's residence to the R Region. Thereafter, the mother be restrained from relocating the child's residence from the R Region.
4.Within 14 days of the child's return to the R Region, the mother forthwith enrol the child into a local school as determined solely by the father who shall advise the mother of his choice of schooling for the child in writing within 21 days of the date of these orders.
5.Subject to Orders 3 and 12 herein, the child live with the mother.
6.The parties shall within seven (7) days from the date of these Orders do all acts and sign all documents necessary to have the child attend upon a trauma counsellor and/or psychologist and/or psychiatrist as determined by the Independent Children’s Lawyer and as paid for by the father to assist the child in his re-introduction to the father.
7.The parties shall within seven (7) days from the date of these Orders do all acts and sign all documents necessary to re-enrol and complete all necessary intake procedures with the D Contact Service.
8.The father spend supervised time with the child at the D Contact Service on such times and dates as may be accommodated by the service for a period of not less than 3 months and to include time spent on Father’s Day 2023 if able to be facilitated by the Service.
9.The father shall pay any costs associated with his time with the child at the D Contact Service.
10.After the expiration of time as provided for in Order 7 herein, the father spend time with the child as follows:
(a)for a period of 3 months, each alternate Sunday from 10am to 5pm;
(b)thereafter, for a period of 3 months, each alternate weekend on Saturday from 10am to 5pm and Sunday from 10am to 5pm;
(c)thereafter, for a period of 3 months, each alternate weekend from 10am Saturday to 5pm Sunday;
(d)thereafter, for a period of 3 months, each alternate weekend from after school Friday (or 3.30pm on a non-school day) to 5.00pm Sunday;
(e)commencing second term of 2024, each alternate weekend from after school Friday (or 3.30pm on a non-school day) to before school Monday (or 9am on a non-school day);
(f)commencing first term school holidays in 2024, for one half of the school term holidays at times agreed. Failing agreement, for the first half of the school holiday period commencing from the conclusion of school until 5pm on the middle Saturday in even numbered years and for the second half of the school term holiday period commencing at 5pm on the middle Saturday and concluding at 5pm on the last Sunday of the school holiday period;
(g)commencing 2024/2025, for one half of the long summer school holidays at times as agreed. Failing agreement, for the first half of the school holiday period in 2024/2025 and each alternate year thereafter and for the second half of the school holiday period in 2025/2026 and each alternate year thereafter;
(h)for Christmas as follows:
(i)in odd numbered years from 9am Christmas Eve to 2pm Christmas Day; or
(ii)in even numbered years from 2pm Christmas Day to 5pm Boxing Day;
(i)in all odd numbered years from 5pm Maundy Thursday to 5pm Easter Monday;
(j)commencing on Father's Day 2024 from 10am to 5pm;
(k)on the child's birthday as follows:
(i)from 10am to 3pm if such birthday falls on a weekend or a non-school day; or
(ii)from after school to 5.30pm if such birthday falls on a school day;
(l)on the father's birthday as follows:
(i)from 10am to 5pm if such birthday falls on a weekend or a non-school day; or
(ii)from after school to 7pm if such birthday falls on a school day; and
(m)such further and other times as agreed between the parents in writing.
11.The father's time with the child pursuant to Order 9 herein he suspended as follows:
(a)on Mother's Day from 10am to 5pm;
(b)on the mother's birthday from 10am to 5pm;
(c)for Christmas as follows:
(i)in even numbered years from 9am Christmas Eve to 2pm Christmas Day; or
(ii)in odd numbered years from 2pm Christmas Day to 5pm Boxing Day; and
(d)In even numbered years from 5pm Maundy Thursday to 5pm Easter Monday.
12.In the event the mother fails to return the child to the R Region in accordance with Order 3 herein:
(a)a Recovery Order be issued directed to the Marshal of the Federal Circuit and Family Court of Australia and to all Officers of the Australian Federal Police Force and to all Officers of the Police Forces of all the States and Territories of Australia requiring them to return the child X, born 2015 to the applicant father and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found.
(b)The Recovery Order issued pursuant to Order 12(a) lie in the Registry, be stayed and not be acted upon, pending further order of the Court.
(c)Within fourteen (14) days of the mother’s failure to comply with Order 3 herein, the father file and serve an Application in a Proceeding for the Recovery Order pursuant to Order 12(a) to be put into effect and for the consequent final orders as sought by he and the Independent Children’s Lawyer at the trial of the matter, in relation to which the mother has been afforded procedural fairness, to be made.
(d)Within seven (7) days of service upon them of the father’s Application in a Proceeding, the mother and the Independent Children’s Lawyer file and serve any Response to Application in a Proceeding.
(e)The matter be listed for hearing within twenty one (21) days of the father filing his Application in a Proceeding as referred to in Order 12(c).
13.Each parent shall:
(a)keep the other parent advised at all times of their current email address and mobile telephone number and notify the other parent within 48 hours of any change;
(b)advise the other parent immediately in the event that the child suffers any serious illness or injury whilst in their care and further provide any particulars of any treatment received by the child together with the name and address of the treatment provider and/or location at which the child is a patient;
(c)advise the other parent of any medication that has been prescribed to the child that needs to be taken while the child in in the care of the other parent;
(d)advise the other parent of any specialist medical appointments with any medical doctor, psychologist, psychiatrist, counsellor regarding the child or either one of them;
(e)authorise any medical practitioner or health professional upon which the child may attend from time to time, to communicate with the other party in respect to the child's medical condition and/or requirements; and
(f)do all things necessary to authorise and/or facilitate all schools at which the child may attend, from time to time, to:
(i)provide the other parent at the expense of the other parent copies of all school reports, notices and photographs in relation to the child; and
(ii)communicate with the other parent either by telephone, in writing or by personal attendance, in respect to the child's progress.
14.For so long as the child lives with the mother and/or spends time with the mother, the mother continue to attend upon Dr E Psychiatrist or in the event of Dr E’s unavailability, any other psychiatrist as selected by the mother and the mother shall follow all reasonable recommendations and directions of such psychiatrist.
15.The Independent Children’s Lawyer is permitted to provide to the mother’s treating psychiatrist a copy of the orders made this day and the reasons published this day.
16.The mother and father engage in Tuning into Kids Program and a Parenting After Separation Program and forthwith upon completion of same, provide a certificate of completion/participation to the other party and/or their solicitor.
17.Both parents be at liberty to attend all school functions, save that the father should not do so for a period up to the conclusion of the first 3 month period of supervised time spent with the child, that is normal for parents to attend including but not limited to sports days, working bees, parent teacher interviews and Father's/Mother's Day functions.
18.Both parents be at liberty to attend all sporting events and extra-curricular activities that the child participates in.
19.The parents communicate via the 2Hourse parenting app or such other app as agreed in writing, with the father to set up an account and the expense of such app (if any) to be shared between both parents.
20.The mother and the father be at liberty to provide a copy of the Orders to any one or more of the following:
(a)the Principal or delegate of the Principal of the school attended from time to time by the child; and
(b)any medical practitioner and/or allied health professional attending upon the child.
21.Each of the parties by themselves and/or their agents be and are hereby restrained by injunction from:
(a)harassing or assaulting the other party;
(b)denigrating, rebuking or belittling the other party to or in the presence or the hearing of the child and from allowing the child to remain in the presence of any other party who may be so doing;
(c)discussing family law or parenting issues, to, with or in the presence or hearing of the said child and from permitting any other person to do so;
(d)exposing the children to conflict or disagreements between the mother and the father or between any other person in the household, or any other family violence;
(e)using the child as a messenger between the parents;
(f)involving the child in the adult conflict; and
(g)questioning the child about the other parent.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Adesina & Crowe has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
INTRODUCTION
This proceeding concerns the parties’ child, X born 2015 (“the child”), who was aged seven years at trial. Proceedings have been on foot for over three years, having commenced in the Federal Circuit and Family Court of Australia (as it was then known, now the Federal Circuit and Family Court of Australia (Division 2)) in January 2020 upon the applicant father (“the father”) filing an initiating application seeking interim and final parenting orders under Part VII of the Family Law Act 1975 (Cth) (“the Act”). The respondent is the child’s mother (“the mother”).
This matter came before the Court for final hearing where the child had not spent any time with the father in nearly five years, namely since the parties separated in July 2017.
The matter was initially set down for final hearing on 24 November 2022 with an estimated hearing time of two days. On 24 November 2022, the final hearing was adjourned to 5 June 2023 with an estimated hearing time of four days. The final hearing was thereafter vacated and the matter transferred to the Federal Circuit and Family Court of Australia (Division 1) in circumstances where it was likely the matter required more than five days of court time.
On 15 February 2023, orders were made by me listing the matter for a final hearing on 24 April 2023. It had some urgency.
On 20 April 2023, the matter had a mention via Microsoft Teams as, at that time, none of the parties had complied in full with the orders made on 15 February 2023 in relation to the filing of trial material. That day, orders were made for the parties to file and serve all material on which they sought to rely by 21 April 2023. Other relevant orders made that day included an order for the parties to attend at the Registry in person on 24 April 2023, being the listing date for the final hearing.
The final hearing proceeded on 24 April 2023 and the evidence concluded on 26 April 2023, with final submissions thereafter being made in writing as agreed between the parties. Judgment was reserved.
At the conclusion of the final hearing, the Independent Children’s Lawyer (“ICL”) had not particularised the orders sought by them on a final basis. Counsel for the ICL agreed to provide the parties with the orders as sought by the ICL within 7 days. Thereafter orders were made for all parties to file and serve written submissions on or before 15 May 2023, thereby allowing the parties to contemplate the orders sought by the ICL before filing and serving submissions.
RELEVANT BACKGROUND
The following relevant factual background is enlarged upon in a discussion of the evidence hereafter.
The father was born in 1976 and was aged 46 years at trial. The father was born in Country F and moved to Australia in 2017. He became a permanent resident in 2021 and has since become an Australian citizen. The father is in good health and works as a health care worker. The father resides in City B.
The mother was born in Australia in 1975 and was aged 47 years at trial. The mother is engaged in homemaking duties on a full time basis. The mother lives in the State of Queensland at an undisclosed address.
The mother has longstanding mental health issues. It is not disputed that the mother has previously been diagnosed with post-traumatic stress disorder (“PTSD”) and anxiety. The mother has attended upon psychiatrists and medical professionals over the years. She has historically engaged in various treatments (in or around 2003). She has been prescribed medications, and has had inpatient admissions at hospital and psychiatric facilities to treat her mental health.
The parties met in 2014 via an online dating application. At the time, the father resided in Country G and was studying at Y School. The mother resided in the R Region, where she had resided since birth, and was employed as a manager, a role she had held for approximately eight years.
The parties met in person in early 2014, when the mother travelled to Country G to visit the father for approximately two weeks. The mother travelled to Country G to visit the father again for a two week period in mid-2014.
In mid-2014, whilst the mother was visiting the father in Country G, she fell pregnant. The mother became aware of her pregnancy in 2014 and notified the father.
The mother made a further visit to Country G in early 2015 for approximately two weeks.
In 2015, the mother gave birth to the parties’ child, X. The father remained in Country G and was present via Skype during the birth.
The mother cared for the child following his birth, with the father remaining in Country G. The father purchased clothing and toys for the child which he sent to the mother whilst he remained in Country G.
In 2015, the parties decided to apply for a Visa for the father. The mother understood at that time, the university the father was attending was holding the father’s passport and the father was required to pay outstanding fees to ensure the return of the passport. The mother gave the father the sum of $7,749.24 so the father could receive his passport, renew his passport and obtain a Visa to reside in Australia.
In 2016, the father was granted a Visa.
In late 2016, the father travelled to Australia and commenced to reside with the mother and child in City B in a rental property the mother occupied (“the family home”). At the time of the father’s arrival in Australia, the child was approximately eighteen months old.
During the cohabitation of the parties, the mother continued to care for the child on a full time basis and the father obtained casual employment in various roles before commencing work for approximately four days per week.
The parties’ relationship was marred by various verbal altercations between them.
In late 2016, the father allegedly sexually abused the child during a diaper change by playing with the child’s penis. The mother makes the allegation, in circumstances where both the mother and father were watching the child at the time. The allegation is denied by the father and discussed further hereafter.
In late 2016, the parties had an argument. The mother asked the father to leave the home, and further, purchased the father a one-way aeroplane ticket to City H in Country F. The parties remained together thereafter, but their relationship was strained.
Despite the above matters, and the ongoing communication difficulties of the parties, the parties proceeded to marry in 2017. The mother’s evidence was that she married the father because she thought, with that additional security (to the extent it was or at all) afforded to him in terms of his residency in Australia, the father might voluntarily leave her home. The father’s evidence was essentially that the marriage was a step forward for the couple as a family. Whatever their thoughts or motivations, the parties marital relationship did not survive and they separated on a final basis on 8 July 2017 in the circumstances described below.
In mid-2017, the mother told the father she had spoken to an immigration agent and withdrawn her sponsorship of the father’s visa. The mother also asked the father to leave the family home. One of the mother’s friends attended the family home and thereafter the Police were called to the home by that friend, for the purposes of securing the father’s departure. Police helped the father gather his belongings, and he departed the family home. The father was fearful as to what would happen to him, being effectively homeless, and with no real connection to anyone in the community.
The father subsequently obtained urgent temporary accommodation in City B, and thereafter was able to move into a rental property in City B.
It is common ground that the father has not seen the child since the parties’ separation in July 2017, and the child has remained in the mother’s primary care. The mother is completely opposed to the child having any form of connection with, or contact with, the father.
In mid-2017, being a date after the parties separation, an interim Apprehended Violence Order (“AVO”) application was filed against the father on behalf of the mother by New South Wales Police on the basis of a statement made by the mother to Police.
In mid-2017, the application for an AVO against the father had a first return date. An interim AVO was issued against the father and the matter was adjourned to a short time later. The mother did not attend court on the adjourned date, and the application for an AVO against the father was withdrawn.
In mid-2017, the mother was notified by Police the AVO against the father had been withdrawn.
On two dates in late 2017, the mother attended upon the City B Police Station to provide a further statement and requested that the AVO application against the father be reinstated. The Police declined the mother’s request. At this time, the mother’s complaints to Police involved criticism of the father which did not include any sexual abuse allegations. This was despite the mother making a six page statement over the course of five hours to police. Whilst the mother insisted at trial that she informed police of her allegations of sexual abuse of the child by the father, the statement of the mother is not in evidence. I draw the inference that such statement would not have assisted the mother’s case and that she did not make a Police complaint to this effect. Nor did the mother make such allegations to any other independent body at the time. She did not report any sexual abuse allegations as perpetrated by the father upon the child to any of her counsellors immediately after separation.
In early 2018, the mother was required to leave her rental property (that was the family home) as the landlord sought to sell the property. The mother left the property and obtained alternate rental accommodation in the City B region. The mother provided the father with a Post Office Box number for the father to send packages to her for provision to the child. She refused the father’s requests to see the child or have any regular communication with the child.
In 2018 and 2019, the father sought to engage the mother in a dispute resolution process with him. He was entirely unsuccessful. He delayed the process of subsequently issuing proceedings through a fear of the AVO proceedings and its outcome, which he understood might affect his ability to remain in Australia, and because he did not have the necessary funds to litigate. He also at this time, was suffering from depression.
In January 2020, the father commenced proceedings in the Federal Circuit Court of Australia (as it was then known, now the Federal Circuit and Family Court of Australia (Division 2)). The interim orders initially sought by the father in relation to care arrangements for the child, as particularised in his initiating application, were for the child to remain living with the mother and spend weekly time with the father as agreed and failing agreement, for a period of two hours each Sunday for eight weeks; thereafter for a period of four hours each Sunday for eight weeks; thereafter for a period of six hours each Sunday for eight weeks; and thereafter for a period of eight hours each Sunday. The father also sought the child spend time with him for a period of eight hours on Father’s Day; and on X’s and the father’s birthdays for a period of one and a half hours on a weekday, or for a period of three hours if a weekend.
In early 2020, the mother left the City B region with the child and relocated to the J Region around K Town. It was the mother’s evidence it was a coincidence her relocation took place in and around the time the father commenced proceedings for parenting orders.
By Response to Initiating Application, filed by the mother on 10 May 2020, the mother sought interim and final parenting orders in relation to X. The mother sought X remain living with her. She did not include any proposed order for X to spend time with the father.
On 11 May 2020, interim parenting orders were made including that: the New South Wales Department of Communities and Justice (“DCJ”) and the New South Wales Police Service provide a response to the Court pursuant to s 69ZW(1) of the Act; an ICL be appointed pursuant to s 68L of the Act; and that the parties, within 7 days, contact the D Contact Service to arrange intake appointments, do all things to enable completion of intake and assessment processes, attend the service, present the child to the service as advised and follow any rules or directions of the service. It was noted no order for supervised time had yet been made however, the Court wished to ascertain whether the contact service would be available to the parties if considered and ordered.
Shortly after, the father completed the intake process at D Contact Service.
On 29 May 2020, orders were made releasing the response provided by New South Wales Police in response to the order made on 11 May 2020 pursuant to s 69ZW of the Act.
On 30 June 2020, the mother completed the intake process with D Contact Service.
On 28 July 2020, interim orders provided, amongst other things, for both parties to be psychiatrically assessed. Such assessment was undertaken by Dr L in relation to the mother, and Dr N in relation to the father and thereafter was as contained in a report prepared for the Court in respect of each of the parties.
On 16 September 2020, orders were made further adjourning the matter and for the parties to do all acts and things and sign all documents necessary to registry with the M Contact Service and attend intake when directed.
By late 2020, the mother had made allegations to at least her psychiatrist, Dr E, that the father had sexually abused X by playing with his penis.[1]
[1] Exhibit F1, p.52.
On 24 November 2020, the Court made interim parenting orders for the father to spend supervised time with the child at M Contact Service. Consent orders, also made that day, provided for the father to pay any costs associated with his time with the child at M Contact Service. This spread of contact services had as its foundation the mother’s relocation of the residence of she and the child as detailed hereafter in these reasons.
On 26 February 2021, interim parenting orders were made for the parties to re-enrol in the D Contact Service, to enrol in the O Contact Service and for the father to spend time with the child on a supervised basis on such times and dates as could be accommodated by the contact services in the orders, or by M Contact Service.
On 13 July 2021, orders were made for a second time for the parties to re-enrol and complete all necessary intake procedures at the D Contact Service, and for the father to spend supervised time at the service on such times and dates as could be accommodated by the contact service.
On 7 September 2021, there was a child orientation session at D Contact Service. The child did not attend the orientation. The child was screaming and refusing to leave the mother’s car. The mother did nothing to encourage or direct the child into the D Contact Service. Indeed the mother facilitated the child’s refusal.
On 11 September 2021, the child was to spend supervised time with the father at the D Contact Service. The child did not leave the mother’s car and the father and child did not spend time together.
By 22 September 2021, the mother had informed the child of her allegations of sexual abuse against the father.[2]
[2] Exhibit F1, p.88.
On 9 October 2021, the child was again scheduled to spend supervised time with the father at D Contact Service. The child did not leave the mother’s car and again the child’s opportunity to spend time with his father was thwarted, as I find it, by the mother who made it clear to the child that he should not leave her car.
In late 2021, D Contact Service informed the ICL that the contact service had closed its file for the family, as it had deemed it inappropriate and not in the child’s best interests, or for the family, for the contact service to continue to be involved. D Contact Service also expressed its view to the ICL that the family required specialist intervention from a psychologist or psychiatrist rather than the non-reportable family counselling that was offered by them.
On 29 October 2021, the matter was set down for final hearing in the week commencing 11 July 2022. Orders were made for a Family Report; for the child to attend upon his psychologist, or such other psychologist as nominated by the ICL and for the mother to file an affidavit with respect to the child’s engagement (or lack thereof) with the D Contact Service, and the child’s engagement and progress with his psychologist. Orders were also made pursuant to s 102NA(1) of the Act that the mother not personally cross-examine the father.
On 21 February 2022, further orders were made pursuant to s 102NA(1) of the Act that the father not personally cross-examine the mother.
In early 2022, the parties were scheduled to attend upon Ms P, Family Consultant, in accordance with the orders dated 29 October 2021. The mother did not attend her scheduled interview. She did not participate in the assessment process.
On 13 April 2022, the Family Report dated 5 April 2022 completed by Ms P was released to the parties.
On 1 July 2022, the father filed an Amended Initiating Application. He sought final orders for the mother to have sole parental responsibility for the child; the child to live with the mother; the mother to make arrangements for the child to engage with a counsellor for the purpose of supporting the child reconnecting with the father; and for the child to spend supervised time with the father to gradually move to unsupervised time on a fortnightly basis, before ultimately moving to overnight time with such time between the child and father to be substantial and significant. The father sought further orders in relation to communication; the mother continuing to attend upon her psychologist; orders in relation to the child’s schooling; and restraints on each of the parties in relation to their communication and conduct with each other and the child.
On 13 July 2022, the matter was adjourned for final hearing on 24 November 2022. An order was made for a second Family Report to be prepared in circumstances where the mother had failed to attend for interviews or participate in the earlier report.
In late 2022, the parties attended upon Ms Q, Family Consultant for Family Report interviews in accordance with the orders made on 13 July 2022. The mother did not allow the child to participate in an observation session with the father.
On 12 October 2022, orders were made releasing the Family Report to the ICL only, and requesting the Department of Families, Fairness and Housing (“DFFH”) or the DCJ to intervene in the proceedings noting it was not clear on the evidence whether the mother resided in Victoria or New South Wales. A further order provided for the mother to enrol the child in a school in her locality.
On 27 October 2022, an order was made providing the ICL with liberty to provide a copy of the Family Report to the DFFH.
On 9 December 2022, orders were made for: the mother to notify the ICL whether the child was living in Victoria or New South Wales; the mother to update the ICL within 24 hours of any move in the child’s residence and the State in which the child then resided; the mother to provide the child’s then current residential address to her solicitor; and the mother to update her solicitor within 24 hours of any change to her contact details.
On 8 February 2023, when the matter was transferred to the Court, three years had passed since the proceeding commenced and no time spent with between the child and his father had occurred in that period.
On 14 April 2023, the father filed a Further Amended Initiating Application, seeking final orders as they appear hereafter.
MATERIALS RELIED UPON
The father relied on the following material:
(1)Further Amended Initiating Application filed 14 April 2023;
(2)his trial affidavit filed 6 April 2023;
(3)Outline of Case filed 21 April 2023; and
(4)written submissions filed 10 May 2023.
The mother relied on the following material:
(1)her trial affidavit filed 21 April 2023;
(2)Outline of Case filed 22 April 2023; and
(3)written submissions filed 15 May 2023.
The ICL relied on the following material:
(1)Outline of Case filed 21 April 2023;
(2)Psychiatric Report by Dr N dated 29 October 2020 filed 18 November 2020;
(3)Psychiatric Report by Dr L dated 31 August 2020, filed 22 September 2020;
(4)Family Report of Ms P dated 5 April 2022;
(5)Family Report of Ms Q dated 6 October 2022; and
(6)written submissions filed 16 May 2023.
ORDERS SOUGHT
The father sought orders including that he have sole parental responsibility for the child; the child live with him; and the child spend time with the mother as agreed in writing between the parties. The father also proposed in the alternative to the child living with him and spending time with the mother as agreed, that the child live with the mother and spend time with the father for a period of four months each alternate weekend supervised at the D Contact Service at the father’s cost; thereafter, for a period of four months each alternate Sunday from 10am to 5pm; thereafter, for a period of three months each alternate weekend on Saturday from 10am to 5pm and Sunday from 10am to 5pm; thereafter, during school term, each alternate weekend from Saturday 10am to Sunday 5pm; and during school holidays, for a period of one week each school holiday period from 10am on the middle Monday of each school holiday period until 6.00pm the day before school commences; on Christmas, Easter, Father’s Day, the child’s birthday and the father’s birthday. The father also sought orders for the parties to enrol in D Contact Service; changeover to take place as agreed or otherwise at the City B Police Station; each party be permitted to call the child on specific days when the child is not spending time with them; restraints on the party in relation to denigrating the order party, conveying messages through the child, exposing the child to violence, and being under the influence of any illegal drugs; the mother to be restrained from relocating the child’s residence more than 60 kilometres outside the R Region without the father’s written consent; the mother to ensure the child attended school and sports lessons at all times; the parties to communicate via the AppClose application, and in an emergency to communicate via text message and telephone calls; each party to obtain information from and speak to the child’s health care practitioners; each party be able to contact the child’s school and receive communication parents usually receive; and each parent be entitled to attend the child’s school events.
The father’s Amended Initiating Application also sought an order for the child to be placed on an Airport Watchlist, however the father did not press for this order.
Despite seeking an order for sole parental responsibility, at trial the father gave evidence (under cross-examination) that in fact he sought equal shared parental responsibility and did not want nor think it appropriate that he exercise parental responsibility on his own.
The mother sought orders on a final basis as particularised in her Outline of Case filed 22 April 2023. Relevantly, that the mother have sole parental responsibility for the child, the child live with the mother, and the child spend no time with and have no communication with the father. The mother also sought an order pursuant to s 68B of the Act, that the father be injucted and restrained from communicating with the mother or the child in any way whatsoever and from approaching and/or coming within 100 metres of the mother or child’s home, school, place of work or any places of extra-curricular activity they may attend from time to time, and an order that such order was an order for the personal protection of the child and the mother to which a power of arrest without warrant attached, pursuant to the provisions of s 68C of the Act.
The ICL sought order in terms of the proposed minute submitted to Chambers and to the other parties, in accordance with the ICL’s indication (to do so) given at trial, on 5 May 2023. Relevantly, the ICL sought orders that: the parties have equal shared parental responsibility for the child; within 28 days of the date of orders, the mother relocate the child’s residence to the R Region and thereafter the mother be restrained from relocating the child’s residence from the R Region; within 14 days of the child's return to the R Region, the mother to forthwith enrol the child into a school, local to where she resides; and subject to the mother’s compliance with orders requiring her returning of the child to City B and enrolling of the child in school, the child live with the mother; the parties to do all acts and sign all documents necessary to re‑enrol and complete all necessary intake procedures with the D Contact Service; the father to spend supervised time with the child at the D Contact Service on such times and dates as may be accommodated by the service for a period of not less than 3 months; the father to pay any costs associated with his time with the child at the D Contact Service; and after the expiration of this time, the father to spend time with the child as follows:
(1)for a period of three months, each alternate Sunday from 10am to 5pm;
(2)thereafter, for a period of three months, each alternate weekend on Saturday from 10am to 5pm and Sunday from 10am to 5pm;
(3)thereafter, for a period of three months, each alternate weekend from 10am Saturday to 5pm Sunday;
(4)thereafter, for a period of three months, each alternate weekend from after school Friday (or 3.30pm on a non-school day) to 5.00pm Sunday;
(5)commencing second term of 2024, each alternate weekend from after school Friday (or 3.30pm on a non-school day) to before school Monday (or 9am on a non-school day);
(6)commencing first term school holidays in 2024, for one half of the school term holidays at times agreed. Failing agreement, for the first half of the school holiday period commencing from the conclusion of school until 5pm on the middle Saturday in even numbered years and for the second half of the school term holiday period commencing at 5pm on the middle Saturday and concluding at 5pm on the last Sunday of the school holiday period; and
(7)commencing 2024/2025, for one half of the long summer school holidays at times agreed. Failing agreement, for the first half of the school holiday period in 2024/2025 and each alternate year thereafter and for the second half of the school holiday period in 2025/2026 and each alternate year thereafter.
The ICL also sought orders in relation to the child spending time with the father on Christmas, Easter, Father’s Day, the child’s birthday, and the father’s birthday, and for the child’s usual time with the father to be suspended and there be provision for the child to spend time with the mother on Mother’s Day, the mother’s birthday, Christmas and Easter.
The ICL sought contingency orders in the event the mother failed to return the child to the R Region. For the purpose of these reasons, the abovementioned orders sought by the ICL will be referred to as ‘the ICL’s proposed orders’ and the below mentioned orders sought by the ICL will be referred to as ‘the ICL’s contingency orders’.
Relevantly, the ICL’s contingency orders sought a Recovery Order to be issued and the child to be placed in the father care; the father’s solicitor to notify the Court within 72 hours of the child being delivered to the care of the father and thereafter, for the child to live with the father; the father to have sole parental responsibility for the child; the parties to re-enrol in D Contact Service, and the mother to spend time with the child in the same routine as proposed by the ICL for the father to spend time with the child in the ICL’s proposed orders as outlined above.
The ICL also sought an order, regardless of whether the ICL’s proposed orders or the ICL’s contingency orders were made, that each party shall keep the other parent advised at all times of their current email address and mobile telephone number and notify the other parent within 48 hours of any change thereto. The ICL also sought orders in relation to the parties informing the other about any medical issues pertaining to the child, the parties’ access to school documents, school events, and the school and its teachers, the mother’s ongoing attendance upon Dr E, her psychiatrist, and the parties engagement with the Tuning into Kids Program and a Parenting After Separation Course. The ICL sought further orders restraining the parents by injunction from engaging in particular conduct towards each other and in relation to the child and an order that the Court’s orders be made available to the child’s school and to any treating health practitioner.
LEGAL PRINCIPLES
Section 61DA of the Act provides a mandatory presumption when making parenting orders, being a presumption that is it in the best interests of the child for the child’s parents to have equal shared parental responsibility.
Where there are reasonable grounds to believe that a parent has abused a child the subject of the proceeding or another child of that parent’s singular household at the time or engaged in ‘family violence’, as defined in s 4AB of the Act, the presumption is rebutted. Further, the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility.
If the presumption of equal shared parental responsibility does apply, or the Court is otherwise satisfied on the evidence that it is in a child’s best interests to make an order for equal shared parental responsibility, then the Court must consider whether it is in a child’s best interests and reasonably practical to spend equal time with each parent or, if not equal time, whether it is in a child’s best interests and reasonably practical for a child to spend substantial and significant time with each parent.
Pursuant to s 60CA of the Act:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
To determine the best interests of the child, the Court must consider the matters set out in Sections 60CC(2) and 60CC(2A) of the Act which are as follows:
(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.
Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Section 60CC(2)(a) of the Act thus requires the Court to weigh up the benefit to the child of having a relationship with both parents. In doing so, the Court must give primary consideration as to whether there is an unacceptable risk of physical and/or psychological harm to the child in spending time with either parent.[3]
[3] M & M (1988) 166 CLR 69 at [25].
In Isles & Nelissen (2022) 65 Fam LR 288 the Full Court agreed with and adopted the commentary of Austin J. in Fitzwater v Fitzwater (2019) 60 Fam LR 212 where His Honour rejected the proposition that a finding of unacceptable risk needs to be made according to the civil standard of proof. Austin J. stated, relevantly, that:
…
138.The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
…
142.As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malbec.
Should the Court establish the existence of an unacceptable risk, the Court must proceed to determine whether that risk “is able to be sufficiently managed or ameliorated”.[4]
[4] Blinko & Blinko [2015] FamCAFC 146 at [83] referring to R & C [1993] FamCA 62.
The Court must also consider the additional considerations under s 60CC(3) of the Act.
In Mulvany & Lane (2009) FLC 93-404 it was observed by Finn, May and Thackray JJ that:
76. It is important to recognise that the miscellany of "considerations" contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
77. It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…
(Emphasis added)
Specific reference to each and every of those s 60CC of the Act considerations is unnecessary in these reasons.[5]
[5] Mulvany & Lane (2009) FLC 93-404 at [77].
EVIDENCE
Statements of fact in these reasons are findings of fact on the balance of probabilities.[6] The Court is not required to undertake a microscopic analysis in relation to the evidence which has been presented, and findings of fact will not be made in relation to every single disputed piece of evidence, of which there are many in this matter.[7] Relevant evidence has been considered and evaluated to arrive at a determination that is ultimately in the child’s best interests.
[6] Evidence Act 1995 (Cth) s 140.
[7] Rigby & Olsen [2021] FedCFamC1A 46.
The father’s evidence
I found the father’s evidence to be consistent and generally, measured, although he appeared emotional at times and gave tangential evidence. He expressed a strong desire to see the child, and to have a relationship with him. He appeared frustrated with the process, its lengthy nature, and the fact that he had been denied (to date) a relationship with his son, which he attributed to the actions of the mother. He nevertheless remained calm and patient in respect of his application and how he might be re-unified with his son.
The father appeared to lack insight at times when giving oral evidence, and did not entertain the possibility the child may have difficulty bonding with him given the child had not seen the father for six years and the child would not remember the father. The father was asked what would happen if the child refused to return to the father’s care. The father responded that would not happen, notwithstanding the child had previously refused to spend supervised time with the father. However, the father also appeared insightful in some ways, conceding it would be very difficult for the child to immediately commence living with him, and acknowledging that the child’s best interests would be served by providing for the child a vehicle in which to transition from the mother’s care to his care, comprising supervised time at D Contact Service initially combined with some form of counselling for the child. He did not consider, at any time, that an outcome where the child did not get an opportunity to known and spend time with his father, and understand his own culture, as being an outcome that could advance the child’s welfare and be in his best interests.
The mother’s evidence
I found the mother’s evidence to be generally exaggerated, and inconsistent. She appeared highly distressed at times, and lacked insight into her actions and their adverse impact upon the child’s welfare. She was rigid in her approach.
The mother provided some concessions throughout her evidence, however such concessions were not always forthcoming. There were occasions when concessions were made following the mother being provided with documents by the father’s counsel, which contradicted her evidence. Otherwise, concessions were made in respect of inconsistencies in her own evidence. For example:
(1)it was the mother’s evidence that she was enjoying motherhood immensely in the child’s early years; did not have high expectations of the father when he moved in with her; that the father did not do a great deal of work with the child, and that she was not frustrated by the father’s way of doing household chores, and caring for the baby, which was somewhat different to hers.[8] The mother’s evidence was however directly contradicted by a contemporaneous clinical note from a counselling session attended by the mother at “[Z Services]”, [in late] 2016. The parties were then cohabitating. That note was, relevantly, that:[9]
[Ms Crowe] stated she gets very frustrated with [Mr Adesina] as her expectations of him are high, she stated that she had to show him how to do everything with the baby and around the house, she stated that he is much better now, and is very good with the baby, helps out with cooking and household chores, it just frustrates her that his way of doing some things are different to hers. [Ms Crowe's] main concern is that she would lose control and slip back into her old angry aggressive ways of behaviour. States that she recognises her early warning signs and can feel herself ready “to explode” and “I don't want to act that way again”
(2)the mother gave evidence at trial that during the first return hearing of the application for an AVO against the father in mid-2017, the mother was not notified of the adjournment date, which she failed to attend. However, the mother deposed in her affidavit material to knowing at the relevant time that the adjourned date was mid‑2017.[10]
[8] Transcript 26 April 2023, p.117 lines 10-21.
[9] Exhibit F1, pp.29-30.
[10] Mother’s affidavit filed 21 April 2023, paragraph 59.
It was the mother's evidence that she had a book of family photographs, which included photographs of the father that she looked through with the child on those occasions when he asked her questions about the father. Further it was her evidence, that the father’s birthday was acknowledged in the mother’s home, so that the father “is a real person to [X]”, the “idea of him” is “kept alive” and that he is an “integral part” of the child and the child’s family.[11] This evidence went to the mother’s assertion that she encouraged the child’s cultural identity in this way, reinforcing for him his father’s appearance and connection to the child. Notwithstanding this, during the Family Report interviews with Ms Q, the child told the Family Consultant that the mother had in fact removed photographs of the father that previously existed in the household. The mother subsequently conceded this fact. Further, the evidence disclosed that the mother admitted that she has told the child that his father sexually abused him. What the mother has reinforced for the child is not that the father is “an integral part” of the child and his life, but rather that the father presents a risk to the child and should not form, therefore, any part of the child’s life.[12]
[11] Mother’s affidavit filed 21 April 2023, paragraph 108.
[12] Mother’s affidavit filed 21 April 2023, paragraph 108.
The mother at times did not answer the questions asked of her and responded by way of re-asserting her allegations against the father, in particular her allegation of the father’s sexual abuse of the child.[13]
[13] Transcript 26 April 2023, p.120 lines 4-8.
Where the mother and father’s accounts differ, I prefer the evidence of the father.
Family Consultant
The Family Consultant, Ms Q, conducted a telephone interview with the mother, an in person interview with the father, and an in person interview with and observation of the mother and child.
In her Family Report, the Family Consultant opined a limitation of the assessment process was that the mother refused to allow the child to be observed with the father. As such, the Family Consultant was unable to observe and comment upon any interactions between the child and the father.
The Court was assisted by the Family Consultant’s evidence as contained in her Family Report and that evidence as given at trial. I found the Family Consultant to be a reliable expert witness and I accept her evidence. Her evidence appears below and in the s.60CC of the Act considerations.
The father
The Family Consultant observed the father to be a proud Country F man who talked about his commitment to family. The father appeared tearful at times, talking about his isolation in Australia, away from his siblings.
The Family Consultant noted the father acknowledged there was some family violence during the parties’ relationship, but stated that his role in such family violence was minimal, and took place when he was protecting himself from being verbally abused or physically attacked by the mother.
The father told the Family Consultant the mother was controlling, isolated him, was physically and verbally abusive, and tried to deport him from Australia. Despite these matters, the father was able to separate the mother’s role as a parent to the child from their relationship difficulties, stating that he had respect for the mother as the primary care giver of the child, and expressed a desire to support the mother to raise “our son”.[14]
[14] Family Report of Ms Q dated 6 October 2022, paragraph 65.
The mother
The mother presented to the Family Consultant as anxious; guarded; teary, at times, highly distressed and sobbing. She expressed paranoid and persecutory themes. The Family Consultant was concerned about the mother’s mental health functioning.
The mother conveyed to the Family Consultant that she wanted to be left alone, and did not want the father to spend any time with the child. To the Family Consultant, it was apparent the mother had no capacity or willingness to consider any alternatives to that proposed by her, or to compromise in any way such that a relationship between the child and the father could be fostered.
In her Family Report, the Family Consultant stated as follows: [15]
[Ms Crowe] stated that her mental illness is caused by her experiences, understanding and concerns regarding Paedophilia” (sic) and discussed at length how “Paedophilia is supported by organisations… such as the police” who are supposed to protect you.
When asked whether she would be able to comply with the Court Orders, [Ms Crowe] paused and took several deep breaths. She said, “I’m worried the Court will order something that I’m unable to facilitate”. She continued, “I will need to make a decision …whether I can continue being a mum to [X] knowing what I know”. [Ms Crowe] later asked in the interview “Do you know where I can get a new identity from?”
[15] Family Report of Ms Q dated 6 October 2022, paragraphs 62-63.
The Family Consultant gave evidence at trial in relation to the mother’s persecutory and paranoid beliefs, and the impact of those beliefs on her ability and willingness to appropriately seek medical care and treatment ( at those times when she needed such treatment) relevantly, as follows:[16]
the thing about having those persecutory and paranoia beliefs is that they are the beliefs and you don’t actually understand that it’s some form of psychosis, obviously. You know, they’re real to you, so – so her – her insight is – is very limited. So when you say that she can contact them when she needs to, she wouldn’t be contacting them because she wouldn’t be aware of this impact that she’s having. And it has certainly had a bigger impact on [X].
[16] Transcript 26 April 2023, p.164 line 21-26.
The mother would not disclose her address or suburb to the Family Consultant, apparently refusing to do so because of privacy concerns. The Family Consultant noted the mother, at the time of the interviews for the Family Report, was homeless and was house sitting somewhere in Victoria.
The mother admitted to the Family Consultant there had been instances where she physically and verbally abused the father during the parties’ cohabitation. The Family Consultant opined that abuse may have been indicative of the mother responding to the father’s behaviours, or may have been indicative of her behaviour being unpredictable, with her response to stress posing significant risks to the child.
X
The Family Consultant observed the child to be articulate, anxious, and to have experienced a significant impact from his continual exposure to the mother’s anxiety and distress.
When talking to the Family Consultant, the child, at times, regressed and used talk typically used by a child much younger than his age and developmental stage.
The child told the Family Consultant he was disappointed with the father, did not like being near his father, that the father did “some not very nice things to me and mum” and when asked about how he would like the relationship with his father to look like, the child said he “can’t change what happened”.[17]
[17] Family Report of Ms Q dated 6 October 2022, paragraph 74.
The Family Consultant expressed concern about the strength of the child’s adverse opinions of the father given his age, and in circumstances where the child did not have any memories of the father given he was a toddler when the child last saw the father.[18]
[18] Family Report of Ms Q dated 6 October 2022, paragraph 74.
At the time of the Family Report interviews, the child told the Family Consultant about the multiple geographical relocations of the mother and the child, with the child telling the Family Consultant “this is definitely our last move”.[19] The Family Consultant observed that the child has had enough of moving. The child, in the opinion of the Family Consultant, would benefit from a predictable environment and a stable home. Those things were not provided to him in the mother’s care.
[19] Family Report of Ms Q dated 6 October 2022, paragraph 76.
Psychiatric assessment of the father
Dr N was not called to give evidence during the trial, and there was no challenge to her psychiatric assessment of the father.
Dr N opined the father’s mental health appeared stable. She observed the father to have depression from a lack of contact with the child. Dr N noted the father acknowledged experiencing depressive symptoms following the parties’ separation, and his not being able to see the child. Dr N had no concerns for the father’s insight into the child’s health, wellbeing, welfare and development. At the time of the assessment, Dr N considered the father did not appear to pose any risk to the child, however, if the father became severely depressed, it was possible the father could become inattentive to the child’s needs.
I accept Dr N’s evidence.
Psychiatric assessment of the mother
Dr L undertook a psychiatric assessment of the mother for the purposes of providing evidence to the Court as to the mother’s mental health functioning. That assessment was undertaken in August 2020. There was no challenge to the evidence of Dr L.
Dr L provided a diagnosis of the mother of anxiety and depression, and personality disorders.
In Dr L’s opinion, the mother’s diagnosis was broader than PTSD and it would be beneficial for her to understand some of the underlying personality issues which would be amenable to strategic therapies. There was no evidence that the mother had adopted this recommendation.
Dr L noted that at the time of his assessment the mother was seeing a psychologist, Ms T, weekly; a psychiatrist, Dr E; and was prescribed medication. Dr L also noted that from 2002, the mother had been prescribed a number of anti-depressants, anti-psychotics and mood stabilisers. Dr L opined he had concerns about the mother’s then current medication which presented risks of future health problems for her. The mother had reported to Dr L that she had tripled her dose of one medication to obtain the same level of night sedation as that obtained previously by her.
I accept Dr L’s evidence. I note the mother’s evidence at trial that she was no longer on any form of medication, and had not been for a considerable period of time save for taking some sleeping tablets around the time of the trial.
CONSIDERATION
As outlined earlier in these reasons, each party sought sole parental responsibility of the child. The ICL’s proposed orders sought the parties retain equal shared parental responsibility and the ICL’s contingency orders sought the father have sole parental responsibility.
During the final hearing, the father gave evidence that he sought equal shared parental responsibility for the child. Notwithstanding this, in written submissions filed 10 May 2023, counsel for the father submitted the presumption of equal shared parental responsibility does not apply because of the unacceptable risk to the child associated with the mother’s emotional abuse of the child. An alternative position, submitted by the father’s counsel, was that the presumption is rebutted by the evidence before the Court that it would not be in the child’s best interests for the parties to have equal shared parental responsibility of the child.
It was the mother’s position that the presumption of equal shared parental responsibility is rebutted by the evidence going to a conclusion that it is not in the child’s best interests. Further, that there was family violence in the parties’ relationship. Counsel for the mother submitted, as a result of the conflict between the parties, the mother’s stated resistance, and the lack of co‑parenting ability as evidenced, the parents lack the capacity to make decisions in relation to the child in accordance with s 65DAC of the Act.
The ICL submitted notwithstanding the conflict between the parties, the father should have some involvement in relation to the decision making for the child and therefore an order for equal shared parental responsibility was sought in the first instance.
Section 60CC(2) Primary Considerations
Risk posed by the father
It was the mother’s assertion that the father posed a sexual risk and a physical risk to the child, which represented an unacceptable risk to the child. Such risk could not be ameliorated by supervision of time spent between the child and the father, as submitted by the mother. Indeed, it simply could not be ameliorated. It was also the mother’s position, that the father perpetrated family violence against her during the parties’ relationship and that post separation, the father had engaged in threatening behaviour and had attempted to locate the mother and the child. Consequently, the mother seeks injunctive orders and orders that the child not spend any time with or have any communication with the father.
The father posing a physical and sexual risk to the child
It was the mother’s evidence that in or around late 2016, three weeks after the father arrived in Australia, the father observed the mother change the child’s diaper for the first time. The father allegedly “played with” the child’s penis whilst the mother was changing the child’s diaper and the mother said to the father “stop” and “please tell me I don't need to worry about that with you? His penis is an important part of his body, do you think it appropriate as his father to play with it like a toy?”[20] It was the mother’s evidence that the father did not say anything in response to these questions.
[20] Mother’s affidavit filed 21 April 2023, paragraph 32.
The mother did not particularise what was meant by the term “played with” when referring to her allegation the father “played with” the child’s penis.
It was the mother’s evidence that she did not tell Z Services, the counselling service the mother attended upon in late 2016, about the father’s alleged sexual abuse of the child as she was in a state of shock. The mother did not disclose her alleged concerns about the father’s alleged sexual abuse of the child to New South Wales Police at around the time of her seeking an AVO or its reinstatement in late 2017. The mother appeared to have first made this allegation in late 2020.
The mother further alleged that when she was starting to toilet train the child, the mother purchased new underwear for the child. The mother told the child “[X] show Dadda your new underpants” and the father allegedly groaned deeply “in a very sexual growl” and said “sexy”.[21]
[21] Mother’s affidavit filed 21 April 2023, paragraph 35.
The mother also made allegations that the father picked the child up and stuck out his tongue, bringing the child’s face close to his;[22] placed food in his mouth and brought the child up to his face;[23] ran a bath for the child with the bath water temperature too hot; and that the father prepared a bottle of milk for the child with the milk temperature too hot. The mother also made a complaint of having, on one occasion, found the child and the father in the garage on a hot day with the door closed and no light on, and on another occasion, hearing the child crying outside and observing the father not to pick the child up.
[22] Mother’s affidavit filed 21 April 2023, paragraph 33.
[23] Mother’s affidavit filed 21 April 2023, paragraph 34.
The mother claimed that while the parties were cohabitating, they became involved in an argument during which the father told her “if I leave this house you will never see [X] again”.[24] The mother believed this comment to be a threat to take the child away from her, or kill the child.[25]
[24] Mother’s affidavit filed 21 April 2023, paragraph 48.
[25] Mother’s affidavit filed 21 April 2023, paragraph 48
The father denied all of the mother’s allegations of sexual and physical abuse of the child. It was the father’s position the he had never hurt the child. The father was concerned about how the mother was able to make such terrible allegations against him.
Mother’s allegations of the father’s family violence towards her
In relation to the mother’s allegations of family violence by the father toward her, the mother deposed to multiple occasions when she asked the father to leave the family home and he refused to do so. It was the mother’s claim that in late 2016, the mother found a dating application on the father’s phone. The parties then had a conversation about the father leaving the mother’s home and departing Australia. The mother unilaterally booked a one-way ticket for the father to fly to City H. The mother then proceeded to sleep in the child’s bedroom that evening with, as she claimed, a telephone and a knife “for protection”.[26] The mother found the house empty the next morning. When the father attempted to thereafter enter the house, the mother opened the door slightly and asked the father why he did not get on the plane to Country F. The father re-entered the home.
[26] Mother’s affidavit filed 21 April 2023, paragraph 45.
The mother alleged that in mid-2017, she asked the father to leave the home and the father’s jumper tore, as the mother physically tried to get him to leave. In essence, she attacked him. The mother alleged the father then pushed her to the ground in response, and attempted to tear her jumper. The father denied this. The mother then advised the father that she was withdrawing his Visa sponsorship.
It was the father’s position that he did not leave the former family home when asked by the mother to do so because, at that time, he did not know anyone in Australia.
The father conceded to the Family Consultant that he had pushed the mother away from him on one occasion, being a time when she had grabbed him. Under cross-examination, the father gave evidence that the incident he referred to in discussion with the Family Consultant was when the mother was pulling on the father’s backpack which was on his back. The handle of the backpack in fact broke, causing the mother to fall to the floor.
The mother also deposed to the father spending extended periods not talking to her during the parties’ relationship which, on her account, was intimidating. The father agreed that he did not speak to the mother at times as he was afraid of her, and afraid of inciting her anger.
The father did send multiple emails to the mother following the parties’ separation which she considered to be threatening. They were intemperate and culturally different, and the mother may well have felt some level of concern for a brief period.
Risk posed by the mother
The father and ICL submitted the mother posed a risk to the child. This was primarily based on the mother’s conduct in relocating the child on multiple occasions and engaging in emotional and psychological abuse of the child. It was also the father’s evidence that the mother had a history of perpetrating family violence toward him. He explained his emails post separation as being at a time when he was depressed and did not interpret them in the same way as the mother.
The mother deposed to the child making comments about the father to her including:
•“I don’t want to meet my dad; I see my dad and I know the darkness he has for me; I don’t want to meet my dad”;[27]
•“No, please don’t take me to meet my dad, I don’t want to meet my dad, I know him, I see his eyes, I know what he wants for me”;[28]
•“I don’t feel safe at school, my dad could find me”;[29]
•“I hear my dad in the mirror and he scares me, he wanted me to kill you Mum”;[30]
•“I want the judge to make sure we are safe. I want to have a face again. I want the judge to send my D A D back to the place he came from so we can be safe”.[31]
[27] Mother’s affidavit filed 21 April 2023, paragraph 141.
[28] Mother’s affidavit filed 21 April 2023, paragraph 147.
[29] Mother’s affidavit filed 21 April 2023, paragraph 154.
[30] Mother’s affidavit filed 21 April 2023, paragraph 154.
[31] Mother’s affidavit filed 21 April 2023, paragraph 159.
The Family Consultant, in the context of such comments by the child, expressed concern about the strength of the child’s adverse opinions of the father given the child’s age and lack of memory of the father.
I find the views as expressed by the child all derive from the mother’s indoctrination of the child, and her conveying to the child her allegations of sexual abuse.
The mother’s sexual abuse allegations against the father posing a risk to the child
During her evidence at trial, the mother referred to her relationship with the child as a truthful relationship. For the mother, that meant that she was required to tell the child about her allegations of the father’s sexual abuse of him.
During cross-examination of the mother on the second day of the trial, counsel for the father provided the mother with an extract from the father’s tender bundle. The extract, being page 88 of the father’s tender bundle, was a document provided by S Family Services titled ‘Family Relationship Services: Children’s Contact Services CaseNotes’. After the mother was provided with the extract of the father’s tender bundle, the following exchange took place:[32]
[32] Transcript 26 April 2023, p.129 lines 1-30.
Mr McMahon: Okay. Page 88. You have page 88?
The mother: I have – I – I do.
Mr McMahon: Okay. Wonderful. Now, you will see that this document comes from [S Family Services]?
The mother: I do.
Mr McMahon: Do you know what that organisation is?
The mother: Thank you. Yes. For – this is – I have – thank you.
Mr McMahon: You’ve remembered?
The mother: Yes.
Mr McMahon: That’s an organisation where [X] engaged in some counselling, isn’t it?
The mother: That was where he engaged with – that was – that’s the children drop-off centre.
Mr McMahon: I see. And [in late] 2021, he told one of the workers there that his father had played with his penis and that’s not nice?
The mother: That is what it stated here, yes.
Mr McMahon: Have you discussed your allegations against [Mr Adesina] that he played with [X’s] penis with [X]?
The mother: Yes.
Mr McMahon: And you’ve told him that that’s what happened?
The mother: [X] – [X] – [X] pushed and pushed and wanted to know, and up until – up until that – as he – as he got older, my answers were, I will be – I will discuss what happened with you when you get older, [X].
Mr McMahon: So he pushed and pushed and wanted to know about an event that occurred when he was an infant child?
The mother: When he was 18 months old. That’s correct.
Mr McMahon: Right?
The mother: [X] is a conscious 18 month old baby. He was – [X] was there. I was there. The father was there. [X] experienced what I stated. I witnessed it, and I acted accordingly, as far as my responsibility to this child.
The notes relevant to the above questioning from the S Family Services extract are as follows:[33]
The writer telephoned […] from DHHS (Child Protection) on […]. The writer reported the disclosure [X] made during the CCS Child Orientation. [X] said “…..he also played with my penis and that’s not nice. Now I’ve got it in my brain. I’ve let it go now; I’m feeling much better.”
[33] Exhibit AF1, p.88.
The writer of the abovementioned extract was not called to give evidence.
It is clear from the abovementioned extract the child was aware of the sexual abuse allegations made by the mother by late 2021. As at that time, the child was six years and five months old. It is possible the mother told the child earlier in time, however the mother did not give evidence as to the exact timing of the disclosure.
It is apparent from the mother’s evidence at trial that the mother made a deliberate decision to tell the child about her allegations, as opposed to her shielding the child from any potential harm in learning of the allegations in this manner, at that time. In particular, if such allegations were false.
Counsel for the father raised the issue of the child being made aware of the sexual abuse allegations with the single expert:[34]
Mr McMahon: What would the impact be if [Ms Crowe] had told [X] that he had been sexually abused by his father in the manner she alleged?
[Ms Q]:That’s emotional abuse.
[34] Transcript 26 April 2023, p.165 lines 17-18.
I accept the evidence of the Family Consultant that the mother’s conduct amounted to emotional abuse of the child. The Family Consultant observed that in her opinion, such conduct was an act on the part of the mother to further isolate the child from the father.
The mother’s relocation of the child
After the parties separated, it was the mother’s evidence she was required to move on multiple occasions without the father’s knowledge due to fears of privacy breaches in City B; not being able to find suitable rental accommodation; and out of fear of the father. Counsel for the father submitted the mother did so for the sole purpose of engineering the child’s estrangement from the father. The evidence supports that submission in particular as set out hereafter.
Counsel for the father referred the mother to an extract from the New South Wales Police narrative in relation to her attendance on the City B Police Station in late 2017 which provided:
Police believe she has a mental illness and is malicious due to her marriage breakdown. The victim expressed her need to distance [MR ADESINA] from the child and be sole carer even mentioning an interest in home schooling him.[35]
[35] Exhibit F1, p.18.
Commencing in 2020, the mother unilaterally relocated the child on three known occasions. It is probable that the mother moved a further two times in the period between early 2020 and trial, both of those moves being house sitting arrangements. It was the mother’s position that it was a coincidence that, in early 2020, she moved the residence of the child from City B to the far reaches of the J Region. That was at a time when the father had commenced proceedings to see the child. The mother deposed to this relocation taking place after she received compensation from Optus for a privacy breach substantiated by her. The breach was the mother’s address being published in a local directory on two occasions despite the mother requesting of Optus that her address not be published. I find the mother’s first relocation away from City B to be a deliberate act by the mother for the express purpose of denying the father both any time spent with the child, and any knowledge of the child’s whereabouts or life.
During cross-examination by counsel for the ICL, the mother conceded that although she and the father both lived in City B after the parties’ separation, she did not physically see the father for a period of three years after the parties separation whilst she remained living in City B. Further, the mother conceded that City B was a small town and it would not have been difficult for the father to find her if he really wanted to. She claimed that the father tried to do so on one occasion by enlisting a courier in an attempt to find out her address. I do not accept that the father attempted at any time to intrude upon the mother in any way, or to personally discover her address. He was in fact frightened of her. It was the mother’s evidence that she believed the father had enlisted a courier to find out where she lived. She did not entertain the possibility the father had enlisted the courtier to deliver gifts to the child of a size that were not suitable for a Post Office Box.[36]
[36] Transcript 26 April 2023, p.124 lines 32-33.
The mother moved her accommodation from the J Region and relocated to another area of Victoria in mid-2021.
Whilst residing in Victoria, the mother regarded a newspaper publishing a photo in which she and the child could be seen was a privacy breach and contributed to her fear of the father locating her in that location. This was despite the father making no attempt outside Court litigation to discover her address.
It was the Family Consultant’s evidence that during an interview with the mother in September 2022, the mother outlined she was homeless and was house sitting in Victoria. The mother stated she could not apply for rental accommodation as she would need to provide her details to a third party, and was fearful of another privacy breach.
Child Protection attended upon the mother’s address in late 2022, and was advised by the then occupier that mother had house sat in the residence for a period of five weeks and had moved to an unknown location. The following day, Child Protection received a phone call from the mother. It was reported during the phone call the mother was focused on an apparent need to keep running to protect the child.
It was the mother’s evidence that she relocated to Queensland in early 2023. As with the move from the J Region, the mother claimed an inability to find a rental accommodation in the area as her reasoning for relocating. The mother also gave evidence she relocated to Queensland so she could stay in a stable home and the child could stay in the same school. The mother at trial resided in a property owned by a friend, who also lives at the property with her husband and two children.
Whilst it was the mother’s evidence that in the long term she wanted to obtain a rental home for her and the child, and re-enter the work force, at the time of trial the mother was not employed. She was dependent upon Centrelink, child support payments and the generosity of her friends to provide her and the child with ongoing but temporary accommodation.
The mother ultimately claimed that all her relocations with the child were driven by her need to prevent the father from finding her and in doing so, she could provide a safe environment for herself and the child. The father, Family Consultant and the ICL expressed concern that the mother’s unilateral relocations were having an adverse impact on the child who had been unable to enjoy a secure and consistent life.
The Family Consultant expressed concern about the child’s invisibility to society in the child’s movement from place to place and lack of consistent school attendance, the latter a matter the mother seemed to have address in the early part of the 2023 school year, with the child doing well. It was the view of the Family Consultant that the child would benefit from a predictable environment and a stable home. In relation to the multiple relocations of the child and the mother, the child told the Family Consultant “this is definitely our last move”.[37] I note the Family Report was released to the parties on 24 November 2022. Following the parties having the opportunity to consider the content of the Report, the mother relocated the residence of child again, in early 2023.
[37] Family Report of Ms Q dated 6 October 2022, paragraph 76.
The mother has relocated the child significant distances and at times provided differing and inconsistent accounts of why each relocation was made. I find, as later conceded by the mother, the overwhelming reason on each occasion was for the child to be invisible to the father. One further aspect to these relocations by the mother has been the disruption to ongoing DCJ and DFFH involvement surrounding any protective issues in relation to the child. The child is now in a third State, the State of Queensland.
The mother’s mental health
It was not in dispute the mother had long standing mental health issues. The mother deposed to struggling with symptoms of PTSD and anxiety. The mother’s psychiatric diagnosis is referred to earlier in these reasons.
The father, Family Consultant and ICL were concerned that the mother’s mental health limited her capacity to care for the child whilst the child was in her care to the extent that it posed an unacceptable risk of abuse to the child – that could however be ameliorated. The mother herself was concerned about her capacity to care for the child in the event the Court made an order for the child to spend time with the father.[38]
[38] Mother’s affidavit filed 21 April 2023, paragraph 121.
The mother’s evidence as to her mental health functioning is that it has improved over the last two years. In her trial affidavit, the mother deposed that her ‘current mental health treatment’ was seeing her treating psychologist, Ms U on a monthly basis and seeing her treating psychiatrist, Dr E, on a quarterly basis unless an earlier appointment was needed. Her medication earlier prescribed by Dr E was of two types[39] The mother gave oral evidence at trial that she had worked with Dr E to come off the medications she was previously prescribed in late 2021 and that the process of doing so had been successful although with the trial occurring, she had been taking some sleeping tablets.[40]
[39] Mother’s affidavit filed 21 April 2023, paragraph 97.
[40] Transcript 26 April 2023, p.131 lines 11-17.
The mother also gave evidence that she would abide by an order for her to continue to seek treatment from Dr E. It is positive the mother has engaged in mental health treatment in the past and is willing to engage in further treatment. I am satisfied it is appropriate for such an order to be made in circumstances where such an order is an order that protects the child from the consequences of the mother’s mental health problems to the extent possible for those times that the child is in the mother’s care.
Father’s allegations of the mother’s family violence towards him
It was the father’s evidence the mother verbally abused him and engaging in harassing, humiliating, intimidating and bullying behaviour, including physically grabbing him whilst the parties were cohabitating. The father alleged the mother told him “you are a cunt”, “you are a nigger, you are a scam”, “you are nothing but a sperm donor”, “you are a man who cannot provide for their family, you are not a man”[41], “this is not your country”, “I will tell you what to do in Australia this is my country”[42], “very soon you will be in [Country F] and [X] and I will be here”[43]; and “the floor belong to you. This is where you belong”[44]. It was the father’s evidence the mother threatened to have him deported to Country F by making false reports about him; yelled at him in front of the child and called the father a “sperm donor” in the child’s presence;[45] verbally abused the father’s late parents; restricted the father from cooking his cuisine; forced the father to sleep on the floor; scattered the father’s belongings on the floor inside and outside the family home, and on one occasion locked the father outside the home for over an hour.
[41] Father’s affidavit filed 6 April 2023, paragraph 20.
[42] Father’s affidavit filed 6 April 2023, paragraph 42.
[43] Father’s affidavit filed 6 April 2023, paragraph 49.
[44] Transcript 24 April 2023, p.35 lines 22-23.
[45] Father’s affidavit filed 6 April 2023, paragraph 49.
The mother denied racially vilifying the father, and denied that she often screamed and yelled at him, or that her behaviour toward the father was aggressive. The mother conceded she made the father sleep on the floor on one occasion as claimed by him, and that the father’s shirt and jumper ripped when she tried to remove the father from the family home.
Meaningful relationship
Counsel for the mother submitted there is no meaningful relationship between the child and the father and the mother will not facilitate a meaningful relationship. The Court was referred to the decision of Nygh J in Cotton & Cotton where His Honour observed the possibility of a meaningful relationship must first exist when determining the desirability for a child to have a meaningful relationship.[46] However, the Full Court concluded in McCall & Clark a prospective approach is to be adopted as the preferred interpretation of s 60CC(2)(a) of the Act.[47] That is the approach I adopt.
[46] Cotton & Cotton (1983) FLC 91-330.
[47] McCall & Clark (2009) FLC 93-405.
It was submitted by counsel for the ICL there was a self-evident benefit to the child having a meaningful relationship with both parents. I agree with that submission. The Court was referred to Loddington & Derringford where Cronin J opined for there to be a meaningful relationship, it must be “healthy, worthwhile and advantageous to the child”.[48]
[48] Loddington & Derringford (No 2) [2008] FamCA 925 at [169].
I find it important and beneficial that the child develop a meaningful relationship with his father and his mother from which he can gain much stability, security and sense of belonging to the differing worlds his parents offer to him. It will allow him to move into adulthood with a strong sense of himself and a properly developed psychological maturity.
Section 60CC(3) Additional Considerations
Section 60CC(3)(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
As outlined earlier in these reasons, the child has made strong comments about not wanting to see the father and told the Family Consultant he “can’t change what happened” in relation to the father.[49] This sentiment was similar to the evidence given by the mother at trial when she said to the father’s counsel about the father “I can’t change the fact that he played with his son’s penis sir, I can’t change that”.[50]
[49] Family Report of Ms Q dated 6 October 2022, paragraph 75.
[50] Transcript 26 April 2023, p.130 lines 35-36.
The mother submitted some weight should be given to the child’s wishes given the child’s age. I do not consider this submission to be persuasive. The child is not mature and nor has he formed his own independent views of the father. Rather, the child has been exposed to psychological abuse in the mother’s care. The mother has deliberately sought to alienate the child from the father. She has told the child that they need to be wary and frightened of the father, and frightened of the prospect of him, for example, following them in a vehicle or removing the child from his school playground.
I do not consider it prudent to place weight on the child’s views.
Section 60CC(3)(b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
The father deposed to having a close bond with the child whilst the parties cohabitated. The father and child played together, ate dinner together and engaged in various activities together.
It is however common ground that the child, at present, does not have a relationship with the father. Indeed, has not had such relationship for many years. Conversely, the child’s primary attachment is with the mother. The Family Consultant opined the child and the mother have a close, warm relationship.[51] I acknowledge and accept that important fact.
[51] Family Report of Ms Q dated 6 October 2022, paragraph 95.
Where the child does not at present have a relationship with the father, it is the Family Consultant’s recommendation that the child receive counselling and support to help him reconnect with his father and feel safe.[52] The father supported this position and gave evidence he was willing to meet the costs associated with such counselling.
[52] Family Report of Ms Q dated 6 October 2022, paragraph 108.
The child also has a close relationship with his maternal grandmother and aunt who both reside in the City B region. He is also close to the extended maternal side of the family.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long‑term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child;
It was the father’s evidence, which I accept, that he has done everything in his power to attempt to spend time with the child and communicate with the child, including complying with all orders as made by the Court. The delay in his commencing the proceeding some two and a half years after he last saw the child was due to a number of factors. He sent some inappropriate and concerning emails to the mother in the early stages following separation. She chose, not surprisingly, to block his emails. He was alone and immensely confused, and importantly was depressed. He ultimately sought treatment for his situational depression, which included his inability to see his child. He also did not have the money to pursue litigation. Instead, and as appropriate, the father sought, post separation, to make arrangements directly with the mother to see the child. He attempted to engage in dispute resolution with the mother. His attempts were to no avail. He arranged gifts for the child, to be delivered to the mother. He stopped sending further gifts in or around early 2019, due to the mother’s conduct in failing to pass such gifts on to the child, or accept receipt of them in the first place.
The mother has made unilateral decisions about all major long-term issues in relation to the child including relocating the residence of the child, on at least three occasions, and enrolling the child in three different schools together with a failure to enrol the child in a school whilst attempting home schooling for brief periods.
In essence, the father had no opportunity to participate with the mother in making any decisions for the child, nor to spend time or communicate with the child despite his great wish to do so. That situation has persisted for many years.
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The father has provided the child with financial support since 2017. The father deposed to directly paying the mother $200 per week for child support following the parties separation. The father then paid child support to the mother through the Child Support Agency and as assessed. At the time of the trial, the father was up to date with his child support payments of approximately $70 a week.
The father gave evidence that, additionally, he had been saving money for the child so the child could attend the “best high school in town”.[53]
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
[53] Transcript 24 April 2023, p.39 line 36.
It is agreed between the parties that it would be a significant change in circumstances for the child if the Court were to make orders for the child to spend time with, or live with, the father. The likely effect upon the child of a permanent or significant separation from his mother would be immense. She is his primary attachment figure and has been for many years. She and the child have a loving bond. Her presence in his life is extraordinarily important to the advancement of the child’s welfare. The mother knows this. The father acknowledges this in the orders he is content for the Court to make. Namely, that he and the mother share decision – making for the child and that the child continue to live with the mother but importantly, have an opportunity to know and love his father. An opportunity denied to the child by the mother to the present time. If the child is to continue with an absence of his father in his life, the likely effect is also immense, namely a significantly adverse impact on his development into adulthood.
Under cross-examination, the father conceded that it would be appropriate for him to spend supervised time with the child initially – though this has been attempted before, and sabotaged by the mother. Where the mother has made false disclosures about the father to the child, and the father would like time to reconnect with the child, the father accepted that supervised time should occur in the first instance to promote the best interests of the child.
The Family Consultant gave evidence the child would need to be assisted by a trauma counsellor to assist him with reconnecting with the father. If the Court were to make orders for the child to spend time with the father, as proposed by the father and the ICL, I am satisfied an order for the child to attend upon a counsellor, as proposed by the single expert, would assist the child with being reintroduced to the father.
The Family Consultant further observed if the Court made orders for the father to spend time with the child, such orders would allow for the child to develop a relationship with the father and his culture, and if the relationship developed in a safe way, it would assist the child develop a sense of belonging and alleviate the child’s current fears and anxiety.
In my view, it would not be a significant or adverse change for the child to resume residing in City B where the child has previously lived, attended playgroups, and enjoyed the benefit of having contact with the maternal family and other families, being friends of the mother, all of which he has enjoyed in the past.
If the Court makes order in terms of the mother’s proposed orders, there would not be any change to the child’s circumstances save such changes as orchestrated by the mother, including ongoing changes in schooling and accommodation for the child. That is, the status quo of the child having no relationship with his father would be maintained. So too would the child’s exposure to psychological harm and emotional abuse in the mother’s care.
Both of the ICL’s proposed orders and the ICL’s contingency orders involve orders for the child to spend time with the father. I am satisfied a counsellor and indeed the father himself can meaningfully support the child with spending time with the father.
Section 60CC(3)(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
An obvious practical difficulty with any orders the Court makes in relation to the child spending time with the father is that the mother may not facilitate any time or communication between the father and the child. The mother, extraordinarily, in her closing submissions submitted that “it is probable that the mother will fail to comply in good faith with orders requiring her to facilitate the child’s time with the father”[54] and “it is not likely that the mother would facilitate a relationship between the child and his father”[55]. This submission was made notwithstanding during the mother’s cross-examination by counsel for the ICL, the mother conceded the following:[56]
Mr Gardiner: And you would understand you’ve got to comply with that order, and that if you didn’t comply with that order, another order her Honour could make – she could issue a warrant and have [X] come and live with his father?
The mother: I understand that, sir.
Mr Gardiner: All right. So you realise the importance of complying with any orders this court makes?
The mother: I understand.
[54] Mother’s written submissions filed 15 May 2023, paragraph 34.
[55] Mother’s written submissions filed 15 May 2023, paragraph 11.
[56] Transcript 26 April 2023, p.150 lines 31-37.
It was the father’s evidence that he would not be able to spend time with the child if the child remained living in Queensland. In his view, it would be necessary for the child to reside in the R Region for any time spent with to occur. The father has not lived anywhere other than the R Region since his arrival in Australia. It is a place where he feels able to engage with the child in a regular and productive way. He has modest means, and would not be able to travel to Queensland to spend time with the child on a regular basis, in particular given the possibility that the mother may not make the child available to spend time with him.
It was the mother’s evidence that she did not have a formal lease agreement with her friends who own the property that she and the child are living in. It is again, temporary accommodation.
The father lives in a rental premise in the City B region, and has purchased a block of land on which he is about to commence building a home. His residence is secure. The mother has much support in the R Region, and a return to it will be a return to a place of which she has a lifetime of familiarity, has family and friends. She also has access to familiar medical treatment. The child’s right to have a relationship with his father and his mother can be accommodated by the mother and child returning to the R Region.
Section 60CC(3 (f) the capacity of: (i) each of the child’s parents; and (ii) 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
Each parent’s capacity to address the emotional needs of the child has been addressed earlier in these reasons in the context of s 60CC(2)(b) of the Act.
Additionally, I find the mother has not attended to the child’s intellectual and social needs by home schooling the child for an extended period. She has not always facilitated his attendance at school when enrolled. The child was absent from school for more than 30 days in Semester 2 of the 2021 school year at V School for example.
At the time of the Family Report interviews being conducted in September 2022, the mother was home schooling the child. In the Family Report, the Family Consultant described the child himself telling her “maybe I should be going to school”. He detailed his days as having no set routine. He said further that he was not at school because the mother was not vaccinated, and the mother couldn’t come to the school.[57]
[57] Family Report of Ms Q dated 6 October 2022, paragraph 77.
The Family Consultant was concerned that the child’s educational and emotional needs were not being met by the mother. The Family Consultant was concerned about the lack of visibility of the child to relevant State Child Protection Departments. At trial, counsel for the father asked the Family Consultant to comment on the implications for the child where the mother’s emotional state continued in the same vein as that which was apparent at the time of the Family Report interviews. The Family Consultant responded:[58]
Well, [X] would be in – like I said, in a – in a state of total unpredictability and children need predictability, stability, routine. [X] was even saying to me, “We’re not going to move again,” but clearly they have, so his idea of stability and security would be totally – totally shattered. He – he would – yes, he would – he would be really struggling. And his ability to make friends and stability for relationships in the future would be very jaded by – by these experiences.
[58] Transcript 26 April 2023, p.165 lines 33-39.
In my view, the child’s best interests will be advanced by consistency in his education at a school where he can remain for his primary years. The father understands the importance of such education and stability and indeed he proposed that the child be enrolled at the W School in City C. The mother, historically has not. She has caused psychological harm to the child in providing him with a significantly unstable and unpredictable environment.
Section 60CC(3)(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
The father is from Country F. He is very close to his culture and traditions. The father wished to introduce the child to his Country F culture.
The father’s evidence was measured in relation to providing the child with knowledge of his Country F culture. During cross-examination, the father describe that cutting a child’s hair in the child’s infancy was a Country F tradition not adopted by the mother. The father however acknowledged that Australia was a different environment to Country F, saying Australia “is a place where you ask people what they want, and what they don’t want…they have to decide and choose what they want”.[59]
[59] Transcript 24 April 2023, p.13 lines 9-11.
Counsel for the father asked the mother what steps she had taken to promote the child’s Country F heritage. The mother was unable to provide any examples of substance. There was simply no evidence on which it could be said that the mother continuously acted to advance the child’s Country F heritage or to educate him about Country F culture and traditions. The child would benefit from being exposed to his heritage and I accept the father will take steps for this to be achieved. Further, that such exposure will be of great benefit to the child in understanding the differing backgrounds of each of his parents.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The mother has an inherently negative perception of the father and did not appear willing to engage in a co-parenting relationship with the father at all. It was the mother's belief the father commenced the proceeding and continued to participate in the proceeding as an attempt to control the mother. There was no logical basis for such belief. Nor was it supported by the evidence. The responsibilities of parenthood, which generally includes an acknowledgement of the child having another parent whose input is important for the child’s development, were not a feature in the mother’s thought processes.
It was the mother's evidence that she had told multiple doctors the father was potentially extremely dangerous. She had told at least one counsellor her opinion that the father was likely a psychopath, despite the mother not having a medical basis nor any other basis to make such an assertion. It was also the mother’s evidence that the father hoodwinked her long enough to get a Visa to remain in Australia.
The father simply wanted what was best for the child, which fundamentally included a relationship with himself. His evidence was that he would not be in Australia, if not for the child. His further evidence was that:[60]
I’m a responsible father. I came from a big home, you know. I know what it takes to raise a child. For you to keep my child away from me, you know, that is an abomination where I come from. We don’t do that in my place.
[60] Transcript 24 April 2023, p.30 lines 26-28.
I note the father has strong and loving family ties in Country F. The father is from a large family and his evidence was that he cared for his younger siblings whilst he was in Country F.
Notwithstanding the current state of the parties’ relationship, the father appeared complimentary of the mother in his evidence. It was the father’s evidence the mother was an excellent mother to the child during the parties’ cohabitation, and he was committed to facilitating time between the child and the mother should the child reside with him. What he wanted was a workable co-parenting relationship with the mother whether the child lived with him or the mother.
The father was, I accept, deeply saddened that he had not had the opportunity to be a father to the child in the years that have passed. Under cross examination, when asked by counsel for the mother when he changed his mind about the orders he sought, namely for the child to live with him, the father gave evidence he changed his mind in 2023 when the mother moved the child’s residence to yet another State and elaborated:[61]
I have been paying child support, all the things the court asked me to do, I have been doing it. I cannot – I cannot see my child. [X] will have his birthday. I cannot do my duty as a father. Other people – other people shower gifts on their children, I don’t have that opportunity. Nobody’s calling me dad, every – every father has that, nobody’s – nobody’s calling me, dad, this is what I say, I don’t have it, you see, I don’t have anything.
[61] Transcript 24 April 2023, p.11 lines 25-30.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;
Findings in respect of family violence have already been made and discussed earlier in these reasons in the context of s 60CC(2)(b) of the Act.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order
There are no current family violence orders in place.
Section 60CC(3)(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
I am persuaded that an order requiring the child to reside within the R Region and an order restraining the mother from relocating the child’s residence from such region is a necessary change in the child’s circumstances if he is to be academically and emotionally supported by one or both of his parents, and that such relocation will provide the child with a much needed sense of security and stability.
As outlined by the Family Consultant, the child needs consistency.
Prior to the mother unilaterally relocating the child to the J Region in early 2020, the child attended playgroups in the R Region and enjoyed the benefit of having contact with his extended maternal family members.
Counsel for the mother submitted “it is likely that there would be further litigation if the court was to make orders for time” on the basis of the mother’s non-compliance with orders of the Court in the past, and the mother’s seemingly inflexible attitude.[62] It is for the mother to comply with Court orders. The function of the Court is to consider the best interests of the child as the paramount consideration. That consideration overwhelmingly results in orders which shall provide for the child to have a meaningful relationship with his father, and in doing so ultimately spend unfettered time with him. The mother has a significant lack of insight into the child’s needs in this regard. Further litigation occurring, whilst not desirable, is no reason for not proceeding to make the Orders the Court shall make.
[62] Mother’s written submissions filed 15 May 2023, paragraph 34.
Where the parties have not communicated with each other in many years, I am satisfied that the parties would benefit from the ICL remaining in the matter until a date following the child’s return to the R Region.
The parties made no proposals in relation to any future international travel with the child. The father nevertheless expressed a desire to travel to Country F with the child. The issue of international travel may need to be considered at some time in the future, but it would be entirely premature for the Court to consider any orders with respect to international travel at the present time on the state of the evidence.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
The mother has not complied with Court orders on multiple occasions throughout the course of the proceeding, including her non-facilitation of supervised time between the child and the father.
On 20 April 2023, the mother’s solicitor advised the Court the mother had told the ICL where her residence was located, in general terms, but had not told her own solicitors. This was notwithstanding Order 3 of the orders made on 9 December 2022 which provided:
Within 24 hours of the date of these orders, the respondent mother provide the child’s current residential address, the mother’s phone number and the mother’s email address to her solicitor.
The mother failed to attend the initial Family Report appointments, as ordered by the orders dated 29 October 2021. The mother’s failure to attend the appointments delayed the matter being finally determined.
I note that the father nevertheless filed no contravention applications throughout this proceeding. His focus remained consistent – to get to a trial and achieve an outcome of spending time with his son.
CONCLUSION
Having regard to the totality of the evidence, I find the father did not commit family violence against the child or the mother, save as admitted, on the facts as alleged by the mother. I find the mother did commit family violence against the father, and that on occasion she was verbally abusive to the father in the presence of the child.
The mother has relocated the residence of the child, on multiple occasions, for the sole purpose of engineering the child's estrangement from the father. She has also told the child that he was sexually abused by the father.
I find that the child was not sexually or otherwise abused by the father.
As a consequence of the mother’s actions, the child does not have a relationship with the father. The mother now seeks to rely on the lack of a relationship between the child and the father, which has come about from her deliberate and manipulative acts, to support her position that the father should have no contact with the child or any input into decision-making for the child’s day- to- day and long term care.
I am satisfied that it is in the child’s best interests for the parties to have equal shared parental responsibility for the child save and except the father shall have sole parental responsibility in relation to the child’s education. The mother has not demonstrated a commitment and child focused approach to the child’s education, and it is in his best interests to ensure he is enrolled in, and attends school, on a regular basis. The father has demonstrated a willingness to facilitate the child’s education. He is appalled by the inconsistency and lack of predictability in the academic advancement of the child to the present time, in circumstances where the mother has disregarded the child’s needs. Whilst the proven facts of this case would suggest that there is no prospect of an equal shared parenting regime being able to operate, and the legislation makes provision for the presumption to be rebutted in such a case, it is in the child’s best interests if he is to remain residing with his mother, that both his mother and his father share parental responsibility for matters other than his education. Indeed, in the absence of orders, this has applied albeit the mother has acted in an entirely contrary manner. Should the mother fail to comply with this Order, and/or the child otherwise commence to live with the father, then the father having sole parental responsibility may be the only order able to be made by the Court.
As a predictive exercise, I do not find the child will be at risk if orders are made for the child to spend time with the father. Indeed, I find the child will be at risk of harm in the form of emotional and psychological abuse if he were to remain in the care of the mother and spend no time with the father. I am reinforced in my view of this by the evidence of the Family Consultant.
To ensure the child can spend time with the father, the mother will be required to return the child’s residence to the R Region and thereafter be restrained from relocating the child’s residence beyond that area. This will also serve the child’s best interests as it will allow the child to enjoy the presence and involvement of his father in his life, and his mother, together with the benefit of building long lasting relationships with his peers. He will be able to again feel settled in what is a familiar environment to him, and his extended maternal family can provide support to the mother, along with her friends and treating doctors, and other allied health providers should the mother need to engage with them.
The child shall be reintroduced to the father in a supervised environment in the first instance, and both the child and father will be provided with time and the opportunity to allow their relationship to develop as assisted by a counsellor. If the mother cannot support the necessary arrangements personally, then she should make whatever arrangements are necessary to ensure compliance with the orders of the Court to ensure the physical, emotional and psychological health of the child.
The father, in the event of supervised time commencing in City B as between the father and child, is content for that to be an incrementally increasing period of time as set out in the orders, rather than an equal time arrangement.
I consider it to be in the child’s best interests for the mother to be provided with one further opportunity to facilitate a relationship between the child and the father. If the mother does not comply with the orders for her to return the child’s residence to the R Region, then a Recovery Order may become operative with the child to be placed in the father’s care as sought by the ICL and the father. The mother is on notice as to the orders sought by the ICL and the father and provision will be made in the orders as made by the Court this day for application to be made in the terms as sought by those parties.
I am satisfied the child would benefit from therapeutic counselling and/or psychological and/or psychiatric support in this transition period and an order will be made to that effect to ensure this occurs.
The mother should also continue engaging with medical treatment to support and address her mental health issues. The mother, and by extension the child, would benefit from the mother actively engaging with her support network and medical professionals to assist with the mother’s compliance with orders. The mother has previously engaged with her network and treating professionals, and as outlined earlier in these reasons, gave evidence she would abide by an order for her to continue to seek treatment from Dr E. She should give consideration, in conjunction with Dr E, to the recommendations of Dr L, made some years ago.
Pending the mother’s compliance with the orders the Court shall make, and for the period that the Recovery Order shall be stayed in its operation, there will be liberty to the parties to apply on short notice to my chambers for an urgent listing of the matter.
I certify that the preceding two hundred and thirty-four (234) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 14 June 2023
- AGLC
- Adesina & Crowe [2023] FedCFamC1F 475
- Case
- [2023] FedCFamC1F 475
- Decision Date
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Legal Principle Established
The ICL submitted notwithstanding the conflict between the parties, the father should have some involvement in relation to the decision making for the child and therefore an order for equal shared parental responsibility was sought in the first instance.Section 60CC(2) Primary ConsiderationsRisk posed by the father It was the mother’s assertion that the father posed a sexual risk and a physical risk to the child, which represented an unacceptable risk to the child. Such risk could not be ameliorated by supervision of time spent between the child and the father, as submitted by the mother. Indeed, it simply could not be ameliorated. It was also the mother’s position, that the father perpetrated family violence against her during the parties’ relationship and that post separation, the father had engaged in threatening behaviour and had attempted to locate the mother and the child. Consequently, the mother seeks injunctive orders and orders that the child not spend any time with or have any communication with the father.The father posing a physical and sexual risk to the child It was the mother’s evidence that in or around late 2016, three weeks after the father arrived in Australia, the father observed the mother change the child’s diaper for the first time. The father allegedly “played with” the child’s penis whilst the mother was changing the child’s diaper and the mother said to the father “stop” and “please tell me I don't need to worry about that with you? His penis is an important part of his body, do you think it appropriate as his father to play with it like a toy?”[20] It was the mother’s evidence that the father did not say anything in response to these questions. [20] Mother’s affidavit filed 21 April 2023, paragraph 32. The mother did not particularise what was meant by the term “played with” when referring to her allegation the father “played with” the child’s penis. It was the mother’s evidence that she did not tell Z Services, the counselling service the mother attended upon in late 2016, about the father’s alleged sexual abuse of the child as she was in a state of shock. The mother did not disclose her alleged concerns about the father’s alleged sexual abuse of the child to New South Wales Police at around the time of her seeking an AVO or its reinstatement in late 2017. The mother appeared to have first made this allegation in late 2020. The mother further alleged that when she was starting to toilet train the child, the mother purchased new underwear for the child. The mother told the child “[X] show Dadda your new underpants” and the father allegedly groaned deeply “in a very sexual growl” and said “sexy”.[21][21] Mother’s affidavit filed 21 April 2023, paragraph 35. The mother also made allegations that the father picked the child up and stuck out his tongue, bringing the child’s face close to his;[22] placed food in his mouth and brought the child up to his face;[23] ran a bath for the child with the bath water temperature too hot; and that the father prepared a bottle of milk for the child with the milk temperature too hot. The mother also made a complaint of having, on one occasion, found the child and the father in the garage on a hot day with the door closed and no light on, and on another occasion, hearing the child crying outside and observing the father not to pick the child up. [22] Mother’s affidavit filed 21 April 2023, paragraph 33.[23] Mother’s affidavit filed 21 April 2023, paragraph 34.