Asikis and Morikis - [2010] FMCAfam 201

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ASIKIS & MORIKIS

[2010] FMCAfam 201

FAMILY LAW – Interim Parenting – competing live with applications – recommendation by family consultant for a change to child’s long standing living arrangements and no time with mother – mother’s capacity to meet the child’s emotional and psychological needs – each party’s capacity to protect child from exposure to sexual conduct – need for an expert report before a final determination made.

Family Law Act 1975, ss.60B, 60CA & 60CC

Applicant:

MR ASIKIS

Respondent:

MS MORIKIS

File Number:

SYC 5496 of 2007

Judgment of:

Sexton FM

Hearing dates:

22, 23 & 24 February 2010

Date of Last Submission:

24 February 2010

Delivered at:

Sydney

Delivered on:

26 February 2010

REPRESENTATION

Counsel for the Applicant:

Ms Clifford

Solicitors for the Applicant:

Watts McCray Lawyers

Counsel for the Respondent:

Ms Clifton

Solicitors for the Respondent:

David H Cohen & Co

Counsel for the Independent Children’s Lawyer:

Ms Lawson

Solicitors for the Independent Children’s Lawyer:

Adamson Solicitors

ORDERS

The matter be adjourned to 26 July 2010 at 10.00a.m. before me for hearing for no longer than four days.
The Applicant pay the trial fee or obtain a waiver of that fee by no later than 4.00p.m on a date 21 days prior to hearing.
Each party file and serve any affidavits on which they intend to rely at hearing by no later than 4.00p.m on a date 21 days prior to hearing.
Affidavits filed after that date cannot be relied on without leave of the Court.
No later than two (2) working days prior to hearing each party forward to my Associate a document setting out:
(a)The affidavits on which the party will rely at hearing; and
(b)The Orders sought at hearing.
Pursuant to Part 15 Rule 9 of the Rules, Dr Rikard-Bell be appointed to prepare a psychiatric assessment of each parent addressing the following issues:
(a)Any diagnosis and prognosis of any condition;
(b)Any treatment recommended for each of the parents;
(c)An assessment of the impact of any diagnosis and prognosis on the parties’ capacity to parent;
(d)The likely impact (if any) upon the child of any separation from either parents’ care and any recommendations to lessen the impact of such a separation upon the child;
(e)The capacity of:
(i)Each of the child’s parents; and
(ii)Any other person including the father’s partner Ms V and the mother’s partner Mr M to provide for the needs of the child including emotional and intellectual needs; and
(f)Whether the child is exhibiting any symptoms of psychological and/or emotional harm. If possible, to identify the cause of such harm (if any) and any recommendation as to any counselling or therapy for the child.
Each party comply with all reasonable requests or directions of

Dr Rikard-Bell or his staff.
The parties share equally all fees associated with the preparation of the report by Dr Rikard-Bell.
I DIRECT that, upon completion, the expert report be forwarded to my Associate by facsimile transmission on [omitted] or by email to [omitted].
I DIRECT the Independent Children’s Lawyer to ensure that

Ms Megan McMahon and Dr Rikard-Bell are available to attend court on the first morning of the hearing between 10.15a.m. and 10.30a.m.
The Independent Children’s Lawyer circulate a draft letter and a list of documents proposed to be forwarded to the Court appointed expert within 7 days and the parties shall respond within a further 7 days. The Independent Children’s Lawyer shall forward the agreed list of documents to the court appointed expert.
The mother provide the Independent Children’s Lawyer within

48 hours a list of all medical practitioners and health professionals consulted by the mother within the last five years.
Leave be granted to the Independent Children’s Lawyer to issue such additional subpoenas to produce documents as considered necessary for the proper conduct of the proceedings.
The father’s solicitor forthwith forward a sealed copy of this Order to the Manager of [X]’s after school centre and the principal of [R] School.

THE COURT ORDERS PENDING FURTHER ORDER THAT:

All previous parenting orders be discharged.
[X] live with the father.
[X] spend time with the mother as follows:
(a)Each alternate weekend from Friday after school until Monday morning commencing Friday 5 March 2010;
(b)On Monday 1 March 2010 from after school until before school on Tuesday 2 March 2010;
(c)Each alternate Wednesday commencing 10 March 2010 from after school until Thursday morning before school; and
(d)For one half of each school holiday period, being the second half in April 2010 and the first half in July 2010.
When changeover cannot occur at [X]’s school, changeover to occur at the [H] Contact Centre.
Each party to forthwith complete the intake procedures at the [H] Contact Centre to enable use of the changeover facility.
The father to meet the fees of the Contact Centre.
The father forthwith make arrangements for [X] to engage in counselling with Dr F, of the University of New South Wales.
Each party ensure [X] attends all counselling sessions as recommended by Dr F and each party attend upon Dr F as requested.
The parties share equally the costs of the counselling, or as otherwise agreed.
Each party be restrained from using illicit substances any time or permitting the use of illicit substances by any person in the household in which that party is living.
Each party be restrained from using physical discipline on [X] or permitting any other person from using physical discipline on [X].
The mother enrol in and complete a parenting programme prior to the hearing, if possible the Triple P parenting course.
The mother be restrained from spending any time with her partner

Mr M after 6.00p.m. when [X] is in her care.
The mother take all reasonable steps to ensure Mr M is not present at any changeover periods.
The mother take all reasonable steps to ensure Mr M does not communicate with, or approach, the father or Ms V.
The father take all reasonable steps to ensure that he and Ms V do not communicate with, or approach, Mr M.
Each parent be restrained from attending the home of the other parent and each parent be restrained from permitting their respective partners from attending the home of the other parent.
The father be restrained from permitting any communication or contact whatsoever between [X] and Mr V and take responsibility for ensuring no other person permits such communication or contact.
The father be restrained from taking [X] to the residence in which

Mr V is living or permitting Ms V or any other person from taking [X] to those premises.
Each parent be restrained from entering [X]’s school grounds during the period of time [X] is not spending time with that party in accordance with these orders and take all reasonable steps to ensure that their respective partners do not do so.
The mother be restrained from driving a motor vehicle whilst her licence is suspended.
Each party be restrained from changing [X]’s current enrolment from [R] School.
Each party ensure [X] attends school each day on time unless [X] is unwell when the parent who has the care of [X] will provide a copy of a medical certificate to the other party’s legal representative and to the Independent Children’s Lawyer within 3 days of the missed school day.
The father be restrained from drinking alcohol in excess of the legal limit when [X] is in his care or permitting any other person from doing so in the presence of [X].
The mother be restrained from drinking alcohol in the excess of the legal limit when [X] is in her care or permitting any other person from doing so in the presence of [X].
Each party be restrained from engaging [X] in any therapy except in accordance with Court orders.
Each party ensure that his/her mobile phone is switched on from at least 9.00a.m. to 9.00p.m every day.
Unless there is an emergency, each party communicate with the other by telephone text message.
Each party be restrained from discussing these proceedings in the presence and/or hearing of [X], or permitting any other person to do so. This includes questioning [X] as to any conversations she may have had with any court appointed expert/consultant or instigating any conversation with [X] as to possible “sexual abuse” of [X], or the photographs for which Mr V has been charged.
Each party be restrained from saying anything negative about the other party or the other party’s partner in the presence and/or hearing of [X], or permitting any other person to do so.
Each party ensure [X] is personally supervised by an appropriate adult at all times.
Each party ensure [X] only wears an appropriately fitted school uniform and shoes.
In the event [X] is in the mother’s care at the time that Ms V gives birth, the mother make [X] available to spend a reasonable period of time at the hospital on condition that such time is outside school hours and before 9.00p.m.
Until further order the Applicant and the Respondent, by themselves, their servants or their agents are hereby restrained from removing or attempting to remove the child [X] born [in] 2003 (female) from the Commonwealth of Australia.
The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to prohibit either party from removing or attempting to remove the said child from the Commonwealth of Australia.
Until further order the Commissioner of the Australian Federal Police and the Secretary of the Department of Immigration and Citizenship take all necessary steps to immediately place the said child’s names on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia. The Australian Federal Police maintain an airport watch of the said child on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
The Independent Children’s Lawyer have liberty to relist the matter at 48 hours notice.

IT IS NOTED that publication of this judgment under the pseudonym Asikis & Morikis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 5496 of 2007

MR ASIKIS

Applicant

And

MS MORIKIS

Respondent

REASONS FOR JUDGMENT

Ex Tempore

Introduction

These proceedings concern parenting arrangements for [X], aged six years. The parties lived together, and separated in 2003 before [X]’s birth in December of that year. It is common ground that [X] has, for the most part, lived primarily with her mother, although there is some dispute as to the history of the parenting arrangements. There is no dispute that the mother unilaterally moved with [X] to Poland in 2007 for several months, and that [X] did not see or speak to her father during that period. On 8 February 2008, final orders were made by consent for the parties to share parental responsibility, and for [X] to live with the mother and spend time with the father four nights a fortnight and half school holidays.
On 11 September 2009, the father initiated these proceedings after deciding not to return [X] to the mother in accordance with the 2008 orders. The proceedings were listed at short notice before me on

15 September. The court noted that the 2008 orders continued to apply, and interim orders were made for the father to return [X] to the mother’s care. Various injunctions were made against each party.
The mother is 26 years of age. She has been in a relationship with

Mr M for the last few months. The mother lives with [X] in a rented unit in [suburb omitted], and is working 9.00a.m. to 3.00p.m. each day in a [workplace] located close to [X]’s school.
The father is 27 years of age. He lives with, and is engaged to be married to, Ms V, and they are expecting their first baby in July. The father works during the week [in the hospitality industry], for the most part during school hours.

The course of these proceedings

The matter was listed before me for final hearing on the first two days of this week. Two reports had been prepared by Ms McMahon, a family consultant; the first dated 8 October 2009[1] and the second dated 17 February 2010[2]. Ms McMahon saw each party three times, and [X] four times, in the preparation of the two reports.
[1] Exhibit 1
[2] Exhibit 2
In her first report, Ms McMahon recommended that [X] live with the parent whom the court determines is most likely to provide her with a home which will meet her short term and long term emotional, social, physical and educational needs. She raised a number of concerns about each party. She recommended the parents be referred to a programme, such as Unifam’s Keeping Contact, to reduce the high level conflict between them and to improve their co-parenting relationship.

Ms McMahon recommended that the court give consideration as to how the report should be released to minimise any negative effect upon [X] from either parent’s reaction to the contents.
In her February 2010 report, Ms McMahon recommended as follows[3]:
[3] Exhibit 2 at paragraphs 44 to 49
…that Mr Asikis have sole parental responsibility for [X];
…that consideration be given to how this Report is released, so as to minimise any negative effect upon [X];
…that [X] live with her father;
…that [X] not spend any time with her mother for at least three months after she moves into her father’s care and that any time that [X] then spend with her mother be at a Contact Centre;
… [the mother] undergo a psychiatric assessment by a Child and family psychiatrist and that this assessment focus on [the mother’s] parenting capacity; and
….that consideration be given to [X] spending unsupervised time with her mother after this psychiatric assessment is conducted, depending on this assessment's conclusions.
In cross-examination, Ms McMahon said that she had concerns that [X] would find it much harder to make the adjustment to her father’s care if [X] spent time with the mother during the initial three months. She said there should be no communication or face to face time between [X] and her mother, with the possible exception of letters transmitted through the Independent Children’s Lawyer.
On the first day of this hearing, Ms McMahon was cross-examined by counsel for the father and counsel for the mother. Counsel for the Independent Children’s Lawyer did not complete her cross-examination. I also asked questions of Ms McMahon. In cross-examination, Ms McMahon remained firmly of the view that, in [X]’s best interests, she should live with her father and not see her mother for a period of at least three months, possibly longer, and then only at a contact centre. Ms McMahon was in cross-examination until very late on the first day. Ms McMahon recommended that [X] not return to the mother’s home that evening, and not communicate with the mother over the 3 days of the hearing itself, because of the high risk that the mother would inappropriately involve [X] in the proceedings. On the application of the Independent Children’s Lawyer’s counsel, I made an order that [X] live with the father until the end of the 3^rd day of hearing, when I said I would revisit the issue. By the end of the first day of hearing, neither party had commenced giving evidence.
On the second morning of hearing, I advised counsel for each party and the Independent Children’s Lawyer that, subject to hearing submissions from each of them, I proposed to adjourn the final hearing of the matter to enable a Part 15, Rule 9 expert report to be prepared by a psychiatrist. In cross-examination, Ms McMahon had referred to subpoenaed documents she had read that suggested the mother may have suffered from depression, bipolar disorder and some kind of personality disorder. I was critical of the parties’ representatives and the Independent Children’s Lawyer for failing to re-list the matter well before the hearing as soon as they became aware that there was evidence suggesting the mother may suffer from a mental illness with underlying personality difficulties. Had the matter been re-listed, an expert report would have been ordered for trial, even if the trial dates had to be postponed.
I told counsel on the second morning of hearing that I had formed the view that the recommendations of the Family Consultant, if implemented, involved a drastic change in circumstances for [X], and would have long term implications for this six year old child who had been primarily in her mother’s care since birth. Given Ms McMahon recommended the mother be psychiatrically assessed, it seemed to me important that this assessment be undertaken before final orders were made. The parties and the Independent Children’s Lawyer agreed this was a sensible course. Tentative dates were canvassed for a final hearing in July when I indicated that Ms McMahon and the expert psychiatrist would be cross-examined together. Inquiries were then made as to the availability of a suitable expert. The court was advised that Dr Rikard-Bell, psychiatrist, would be available to interview the parties and relevant others at the end of March. The parties, with the Independent Children’s Lawyer, then prepared some draft terms in relation to the appointment of Dr Rikard-Bell, and as to arrangements over the interim period. This took some several hours, and it was late on the second day when I was advised that the parties had been unable to reach agreement on [X]’s arrangements over the interim period, though there was substantial agreement on other terms intended to protect [X] from conduct which the consultant had identified as adverse to [X]’s welfare.
Earlier on the second day, I had suggested to the parties that in light of Ms McMahon’s recommendations, my preliminary view was that [X]’s time with her father should be substantially increased up to approximately half time, given the possibility that [X] may have to adjust to a move to her father after final hearing. I told the parties I did not intend to prejudge the matter at this interim stage, and to the extent possible, I wanted to establish a holding pattern while the psychiatric evidence was obtained.
My preliminary view was not supported by the parties or the Independent Children’s Lawyer. The father sought an order that [X] live with him during the adjournment, and see her mother for a few hours each weekend in light of Ms McMahon’s serious concerns about the mother’s capacity to provide for [X]’s emotional and psychological needs. The Independent Children’s Lawyer supported the father’s application, which was opposed by the mother. The mother sought a continuation of the present arrangements, or in the alternative, a reduction in the father’s time, and that such time be supervised.
I pointed out to counsel for both the Independent Children’s Lawyer and the father that Ms McMahon had said that if [X] were to move to her father, she should not see her mother at all for at least three months. As I had already decided I was not prepared to make such an order without a further expert opinion from a psychiatrist, I said it would be necessary to hear further from Ms McMahon as to her views as to how best [X]’s interests could be protected during the adjourned period.
On the third day, Ms McMahon was advised of developments and gave further evidence. Ms McMahon did not support an approximately equal time arrangement for [X] in accordance with my preliminary proposal during the interim period. She said from [X]’s perspective, the period from now until July was a long time. She said that given the level of conflict between the parties, such an arrangement would put too much stress on [X]. In her view, [X] should live primarily with her father in the interim period, and spend time with her mother each alternate weekend from Friday to Monday, and overnight Wednesdays in the alternate week (in effect, a reversal of the current arrangements), in addition to half school holidays. She said the parties should not have face to face contact at changeover. She said [X] should initially spend one overnight with her mother before a full weekend period.

Ms McMahon agreed with Ms Clifford for the father, that it was best for [X] not to be with the mother for a block period too close to the time of interviews with Dr Rikard-Bell, nor at the time of the report’s release. Again, Ms McMahon was adamant that [X] should not live primarily with her mother during the interim period. She acknowledged that a move to her father would be difficult for [X] as she has a strong relationship with her mother. She acknowledged that [X] may suffer from separation anxiety. However, that did not change her recommendation.
An issue also arose as to whether [X] should be exposed to the mother’s partner during the adjournment. Ms McMahon supported [X] spending time with Mr M, but on a restricted basis. She said [X] was used to this arrangement and appeared to have a positive relationship with Mr M. The parties and the Independent Children’s Lawyer then consented to the order continuing, which provided Mr M not to be at the mother’s home after 6 pm while [X] was in the mother’s care.
Ms McMahon had been provided with all the affidavit evidence on which the parties relied, including affidavit evidence filed just prior to hearing which disclosed that [X] had been photographed in pornographic poses whilst in the care of the father and his fiancé.

Ms McMahon was cross-examined about this evidence. She said it made no difference to her recommendations.
As Ms McMahon’s evidence was the only evidence tested, I made my findings substantially on the basis of her evidence.

Legal principles in relation to interim parenting

The principles governing parenting cases are set out in Part VII of the Family Law Act 1975. The Full Court in Goode & Goode [2006] FLC 93-286 says in interim proceedings, as in final proceedings, the Court must follow the legislative pathway.
Section 60CA provides that I must regard the best interests of the children as the paramount consideration. To determine the children’s best interests I must consider the 2 primary considerations set out in section 60CC(2) which are consistent with the first two objects of the Act set out in section 60B and the 13 additional considerations set out in section 60CC(3) as far as they are relevant. Section 60CC(4) requires me to consider also the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities.
The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

THE PRIMARY CONSIDERATIONS

The benefit to the child of having a meaningful relationship with both the child’s parents.

[X] has a close relationship with each of her parents. In

Ms McMahon’s view, [X]’s primary attachment is to her mother. Although she found some difficulties in that relationship, she observes a close bond between them. She describes [X] as having a close and comfortable relationship with her father. This was not the significant issue in determining [X]’s arrangements during the interim period.

The need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.

There are a number of complex issues relating to [X]’s safety in each party’s care. However, I highlight the two issues which occupied much of the cross-examination of Ms McMahon, and which, because of their importance to the outcome of this case, are likely to be explored in much greater detail at final hearing. The first issue concerns the mother’s capacity to meet [X]’s emotional and psychological needs. The second concerns the father’s capacity to keep [X] safe from sexual abuse, and each party’s capacity to protect [X] from exposure to inappropriate sexual conduct. I also refer to a third issue being the parties’ entrenched conflict, and each party’s apparent inability or unwillingness to protect [X] from that conflict.

(a) The mother’s parenting capacity

Ms McMahon formed the view that the mother’s parenting capacity is impaired. She said the mother needs a comprehensive psychiatric assessment. The assessment needs to address the mother’s ability to focus, her capacity for impulse control and her capacity to parent appropriately. Although Ms McMahon has psychological training, she conceded that she does not have the expertise to assess and diagnose the mother’s mental state.
I outline Ms McMahon’s concerns:
a)[X]’s psychological well being is at risk if [X] remains in the primary care of her mother. She reported having “grave concerns” at both the first and second interviews about the risk to [X] of psychological damage if she continues to live with her mother.
b)The mother has drawn [X] into her own conflicts to an extremely detrimental degree. [X] is likely to be distressed and confused by what the mother might say to her.
c)The mother lacks the capacity to explain things to [X] appropriately. She believes [X] has been traumatised by the mother’s behaviour on a number of occasions. These include:
i)Telling [X] to cry when she sees her father at the interviews with Ms McMahon. Ms McMahon said it was odd that on one observation, [X] was relaxed and comfortable with her father, and on the next had a strong negative reaction to him. [X] told Ms McMahon her mother had told her to cry when she saw her father, and [X] did so very loudly. [X] was anxious to ensure Ms McMahon told her mother that she had cried when she saw her father. Ms McMahon surmised the interview with the Joint Investigation Response Team (JIRT) might have contributed to [X]’s reaction, with that interview having occurred between the two meetings with her, but thought it “highly probable” that the mother had caused the problem by putting [X] under pressure to behave in a certain way in front of her father.
ii)Requiring [X] to say in front of her, the father and Ms V, “who has hit you?” and insisting on an answer from [X]. Although Ms McMahon agreed with Ms Clifton, for the mother, that Ms V also involved [X] in the conflict to a slight degree when she asked [X] why she told her mother that she had hit her, Ms McMahon said that Ms V’s conduct did not compare with that of the mother, which was extreme.
iii)
Questioning [X] about her meeting with the consultant. This was particularly disturbing to Ms McMahon. The mother believed that [X] had told Ms McMahon that she wanted to live with her father. The mother called the consultant on the telephone in front of [X] to tell her [X] had lied, and needed to be questioned again about her wishes. The consultant could hear [X] sobbing uncontrollably in the background, clearly extremely distressed as her mother made this call. Ms McMahon said [X] did not, in fact, tell her she wanted to live with the father. Ms McMahon referred to a “two hour crisis situation” between the mother and the child, which meant [X] suffered enormous distress over an extended period. She said the mother handled the situation extremely badly without apparent insight into the damage her conduct was causing [X]. It is noteworthy, as highlighted by the Independent Children’s Lawyer’s counsel, that the mother, by involving [X] in this way, was in direct breach of Order 17 of Orders made on

15 September 2009 which provided for neither party to discuss these proceedings with [X].
d)The mother puts [X] at the centre of these conflicts when [X] should be protected from the conflict, not forced to be the agent of the outcome.
e)The mother is not child focused. She presents as emotionally fragile, and it will be very hard for the mother to provide reasonable care for [X] until she addresses her own issues. She finds it likely the mother will continue to expose [X] to her own anxieties. The mother is very self-focused and therefore neglects [X]’s needs. She involves [X] in what Ms McMahon describes “as the mother’s chaos.”
f)The mother does not support [X]’s relationship with the father, and [X] is at risk of losing her relationship with her father if in the primary care of her mother long term. In particular, she refers to the mother’s decision to move with [X] to Poland without the consent of the father, cutting [X] off from him for several months. She also refers to the timing of the mother’s sexual abuse allegations against the father, occurring immediately upon [X]’s return to the mother’s care in September last year after the father had kept [X] in his care in breach of court orders. These allegations lead to a further period of [X] not seeing her father.
g)The mother lacks insight into her deficits as a mother. The mother says there is nothing wrong with her parenting. The mother was definite that she had no intention of attending any parenting courses. Ms McMahon was not persuaded that the mother’s latest affidavit, which said the mother was now prepared to attend, demonstrated improved insight by the mother.
h)The mother has shown poor insight into the impact of her numerous relationships on [X], and poor insight into the impact of her 13 moves since [X] was born. The mother lacks stability which impacts adversely on [X]. Although Ms McMahon acknowledged that the mother is presently in a stable situation, Ms McMahon says the pattern is, nevertheless, one of change and instability, and that given the mother’s present arrangements have only been in place for a short time, Ms McMahon is not confident the pattern of instability will not continue into the future.
i)The mother has failed to recognise [X]’s problems at school, both academically and socially. [X]’s report for second semester 2009 states that [X] is struggling academically. The report noted that [X] would benefit from being read to. On 8 September 2009, the school principal of [R] School sent the father a letter re concerns about [X]’s behaviour at school. That letter says[4]:
Dear Mr Asikis, I’m writing to you to convey my concern regarding your daughter [X]’s behaviour at school. After discussing with her class teacher, it has been reported that [X] has been experiencing difficulties with her social relationships with others in her class. She is experiencing difficulty with her academic work and she is often late to school. If you would like to discuss this matter further please contact me to make an appointment.
[X]’s school report states that she missed 12 full days of school in the second semester of 2009, being the first period she spent at [R] public school, and that she had nine partial absences. While Ms McMahon agreed that there could be a number of causes for [X]’s poor behaviour at school, including the sexual abuse allegations, Ms McMahon was firmly of the view that the mother had demonstrated poor parenting skills in failing to address [X]’s problems at school. It was put to Ms McMahon that in early September 2009, the father also kept [X] out of school for a full week. Ms McMahon said she believed this was in a different context. She said the father had believed [X] was at risk in her mother’s care, and he was concerned that if [X] went to school before his application to vary orders came before the court, the mother would remove [X]. While Ms McMahon agreed with Ms Clifton that [X] missing school was far from ideal, she said, and I agree, that the context was very different. Ms McMahon formed the view that the father has the capacity to assist [X] with her school work, and her social difficulties at school. At the time of the second report, having accepted Ms McMahon’s criticisms of him in her first report, Ms McMahon found the father much more child focused.
j)The mother has not addressed [X]’s speech difficulties. Ms McMahon found [X] difficult to understand at the most recent assessment.
[4] Annexure B to father’s affidavit sworn 11 September 2009

(b) Each party’s capacity to protect [X] from sexual abuse.

The evidence at this stage does not disclose that [X] is at an unacceptable risk of sexual abuse in either party’s care. The evidence follows.
First allegation:
The father reports [X] telling him in early September 2009 that she was spending time in the same bed as her mother and

Mr M, and the father and his fiancé claimed [X] was using language suggestive of exposure to sexual activity between the mother and

Mr M. The mother and Mr M deny the allegations. I can make no findings on this issue.
Second allegation:
Immediately after [X]’s return to the mother by court order on 15 September 2009, the mother raised allegations of sexual abuse of [X] by the father. The mother said [X] said to her on

16 September that, “after daddy drinks he baths me and touches me on my bum, and I tell him to stop but he doesn’t listen.” [5] The mother reported the matter to the Department of Human Services and to the police, and the matter was referred to JIRT.
[5] Affidavit of mother sworn 29 January 2010
Ms Clifton questioned Ms McMahon about paragraph 42 of her first report[6] where Ms McMahon said, “[X] told me that her father touches her here and there, pointing to her genital area and bottom.” Ms McMahon said she did not question [X] further about this, as she was aware that there was a JIRT investigation underway, and children should not be repeatedly questioned about such matters. Ms McMahon did not think the mother had invented the allegation, and accepted that the mother would be extremely distressed by the thought that [X] had been inappropriately touched by her father. Ms McMahon believes the mother may have embellished what [X] said to her and interpreted what [X] said in a certain way.
[6] Exhibit 1
By the time of Ms McMahon’s second report, the JIRT investigation had been completed and no further action deemed necessary. The mother, at that time, told Ms McMahon that she was happy for the current parenting arrangements to continue, which involved [X] spending four nights a fortnight with her father unsupervised.
Third allegation: In an affidavit sworn on 19 February 2010, the father deposed to his fiancé receiving in the mail on 10 February 2010 three coloured photographs of [X]. The father described the photographs as follows[7]:
Photograph one - [X] appears to be wearing a dress my sister, Ms P, bought her for Christmas in 2008. [X] appears to be kneeling on the floor and facing side on to the camera. [X] is turning her head round to face the camera. [X]’s underwear is pulled down to just below her bottom.
Photograph two - [X] is again kneeling down. Her body is facing away from the camera, however, her bottom is facing towards the camera. Her bottom is exposed. [X] is turning her head so that she’s facing the camera. She is looking at the camera and smiling. She is wearing the same dress referred to in photograph one above.
Photograph three - [X] is standing up facing the camera and wearing the same dress referred to in the above two photographs. In this photograph, however, she has a pink handbag, the strap of which is resting on her right shoulder. She is pulling down her underwear with her right index finger and thumb exposing her genitalia.
[7] Affidavit of father sworn 19 February 2010
The father continues[8]:
It appeared to me that all three photographs were taken at the same time. I would estimate they were taken approximately one year ago. When I entered the house, I proceeded to walk into the kitchen where Ms V was sitting there. I was upset and started to cry. I threw the photos onto the kitchen table and said to Ms V, “Have a look at this, what are we going to do about this?” Ms V then had a look at the photographs. She appeared to be distressed at what she saw. I subsequently called my solicitor at Watts McCray Lawyers.
[8] Affidavit of father sworn 19 February 2010 at paragraphs 5 to 6
The father then says in his affidavit that on 12 February 2010, his fiancé rang him and said that[9]:
Mr V (referring to her brother, Mr V) has been arrested by the police and charged with the possession of child pornography. They have with them three photos of [X]. I think they are the photos that we have. I told the police we have also received photos of [X] and that we will bring them down to the Mascot police station. The police have taken out an AVO against Mr V to protect [X]. They are also going to report the matter to DOCS. Apparently the photo place where Mr V developed the photos kept a copy of the photos and reported the matter to police. He’s been released on bail. The person in charge of the matter is Detective A.
[9] At paragraph 8
The father says he immediately telephoned Detective A who confirmed what his fiancé had told him. The father was asked, and did, translate the terms of the Apprehended Violence Order in the Greek language to Mr V. The father annexed to his affidavit letters sent to the mother’s solicitor and to the Independent Children’s Lawyer dated 16 February 2010. The father says he gave the photos to the police and was asked whether he would agree to [X] being questioned. He said he would need to get the mother’s consent for that to occur, but supported her being interviewed. He continued[10]:
I understand and fully appreciate the seriousness of these recent events. I am distraught that [X] has been subjected to being photographed by Mr V in this manner, and am concerned about the impact this will have on [X], both on a short and long term basis. It is my understanding that Mr V is developmentally delayed. Although he is, to the best of my knowledge, 32 years of age, from my observations he behaves as if he is in his early teens. Ms V has informed me Mr V suffers from hydrocephalus, a medical condition he was born with, where he has water on the brain. I further understand that Mr V remains under the care of a neurologist.
[10] At paragraphs 15 and 16
The father describes his understanding of [X]’s contact with Mr V. He says[11]:
From my observations, Mr V is obsessed with taking photographs. He almost always has a camera with him. As at the date of swearing this affidavit, I am yet to be contacted by the Department of Community Services in relation to the photographs of [X]. I undertake to ensure [X] does not have any form of contact with Mr V at any time in the future. I intend to seek an order to this effect at the final hearing. Apart from the telephone conversation I had with Mr V where I translated the terms of the apprehended violence order, I have not had any communication or contact with him, and do not intend to.
[11] At paragraphs 21 to 24
Ms V corroborated the father’s version of events in an affidavit sworn on 19 February 2010. She said that 10 minutes or so after receiving the photos the father rang his solicitors. She says this about her brother[12]:
Mr V is my brother…Mr V is currently 33 years of age and lives with my father… Mr V suffers from hydrocephalus, and is developmentally delayed. Mr V remains under the ongoing care of neurologist, Dr G from [S] Hospital. On a few occasions, but rarely, I have taken Mr V to appointments with Dr G. Due to

Mr V’s illness, and the 11 brain operations he has had over the course of his life, I understand that Mr V’s frontal lobe is damaged. I am aware of this from the appointments I have attended with Mr V with Dr G. Mr V does not work, and receives special government benefits. To the best of my knowledge, and based on a recent conversation with my sister, I am aware Mr V will soon be eligible for a …disability support pension. He speaks very poor English, having lived most of his life in Greece. He emigrated to Australia from Greece approximately four or five years ago.
[12] Affidavit of Ms V sworn 19 February 2010 at paragraph 7

Ms V also describes various conversations she had following the receipt of the photographs. She says[13]:
I have a very strained relationship with Mr V. Mr V and I are approximately seven years apart in age. When I was 11…I moved to Australia. Mr V was raised in Greece, and only came to Australia approximately four or five years ago. We do not have a close relationship. To the best of my knowledge, Mr V was last at our home in [suburb omitted] approximately a year ago. I subsequently became aware that during that visit Mr V had stolen my wallet and some jewellery. Mr V has not been welcome at our house since then.
[13] At paragraph 15
She explains the circumstances in which [X] has come into contact with Mr V to the best of her knowledge. She says[14]:
[14] At paragraphs 17 and 19
My father and Mr V currently live in a two bedroom apartment. I suspect, but do not know, that [X] may have spent a short period of time and no more than five or 10 minutes, with Mr V during an occasion I went to collect my father. I have never left [X] in

Mr V’s care. My nephew, [name omitted], Ms L’s son, has toys in Mr V’s bedroom. It is possible [X] may have gone in there to play and Mr V may have been in the room at the time. I do not recall the bedroom door ever being closed when Mr V and [X] were in the bedroom.
…
Mr V carries a camera on him most of the time. I am aware that he currently has a late model Canon digital camera. He is always taking photos of random things and people, and appears to enjoy taking photos of his family and surroundings.
Ms V says she has not had any contact with Mr V since these events took place, and does not intend to do so. She intends to ensure [X] is not brought into contact with him at any time.
The mother filed an affidavit in court on the first day of hearing in response to this material. The mother deposes to being told by Ms V that her brother, Mr V, has stayed at the father’s home in 2008. She deposes to meeting Mr V at the home of the father in mid 2008 when Mr V told her neither the father nor Ms V were at home. I note that evidence is not inconsistent with the evidence of Ms V that Mr V has not stayed at their home for the last 12 months. However, the mother deposes to this conversation:[15]:
The next time at changeover I said to them, “Please make sure you don’t leave [X] with Ms V’s brother…You don’t know what can happen.”
[Mr Asikis] responded to me, “Don’t worry about it, Mr V is alright.” Ms V said, “We know, we know, we don’t leave [X] with him. You don’t need to worry.”
[15] At paragraphs 17 to 19
In response to questions from the mother’s counsel, Ms McMahon said it was a matter of parental judgment as to whether a child should be left in the care of an adult with an intellectual impairment. She agreed it was possible being photographed in this way could lead to [X] behaving in an inappropriate sexualised manner. Ms McMahon said she was unable to say whether [X] is likely to have suffered psychological damage as a result of having the photographs taken, it would depend on the context, but whether or not [X] has suffered some form of psychological damage, [X] should be in her father’s care. She could not conclude the father was a poor parent. Ms McMahon said [X] should be referred to an experienced counsellor as soon as possible about a range of issues given the number of difficulties [X] has had to face in her life. She did not think it was necessary for [X] to have specific counselling in relation to the photographs. She said it is difficult in these cases, when a child is the subject of so many pressures and difficulties, to unravel what is causing the child’s presentation and behaviour. She favoured [X] seeing an experienced child and family counsellor, and nominated Dr F who lectures at UNSW and consults in Sydney’s inner west.
Ms McMahon formed the view that [X] is not unsafe in the care of her father and her recommendation that [X] live with the father remained unchanged. While she acknowledged there were many unanswered questions about the events surrounding [X] being photographed, she formed the view that [X] would not be exposed to an unacceptable risk of abuse in her father’s care. I accept her view.

(d) Conflict between the parties

Ms McMahon described the parties’ relationship as acrimonious and volatile, exacerbated by the court process. Ms McMahon formed the view, at the time of her first report, that neither party recognised the damage and distress they were causing [X] by their ongoing high level conflict. She said [X] is well aware of the extreme conflict between them, and there is no question [X] is suffering as a result. She believes each party has denigrated the other over a long period, involving [X] directly in the tension and acrimony between them. She was highly critical of them both in this regard. She said at the time of the first report that neither party was interested in addressing this issue or improving their relationship by attending a programme to address their problems. I find each party’s affidavit material confirms the appalling interaction between the various parties at changeovers in front of [X]. There can be no doubt that these changeovers are a cause of significant distress and confusion for [X].
At the time of the first report, Ms McMahon found the father verbally aggressive, bordering on abusive to her on one occasion. She was critical of the father keeping [X] in breach of orders, and failing to recognise the negative impact of this decision on [X]. However, by the time of the second report, Ms McMahon found the father had responded appropriately to her concerns, apologised for his behaviour and had enrolled in a parenting course. She was impressed by the father’s change in attitude. However, in cross-examination by the mother’s counsel, Ms McMahon acknowledged that the father should have ideally called the mother when the pornographic photos came to light, which he did not do.
Overall, however, Ms McMahon formed the view by the time of the second report, that [X] would be in a more stable and predictable environment, both emotionally and physically, if in the father’s primary care. Ms McMahon found the father focused on [X]’s need for assistance with her school work, need for speech therapy and was attuned to [X]’s emotional needs, unlike the mother.
Ms Clifton for the mother submits I should give minimal or no weight to Ms McMahon’s opinion. Counsel submits that Ms McMahon fails to establish the facts on which she forms her opinions. Counsel submits Ms McMahon blames the mother, not the father, for conduct which is similar on the part of each party. She submits there is no evidence that [X] has suffered while in the mother’s care. She says the court can ignore Ms McMahon’s recommendations on the basis that she has failed to give appropriate weight to the likely impact on [X] of the pornographic photographs. Counsel submits [X] should remain with her mother, and only see her father on a supervised basis during the adjournment or, at most, in accordance with current orders.
I do not accept counsel’s submissions. Ms McMahon had first hand knowledge of the mother’s behaviour with [X] which led her to the view that [X] is at grave risk of psychological damage in the mother’s care. She formed her view, from meetings with the mother and a reading of the affidavit material and subpoenaed documents, that the mother may have a psychiatric condition or a personality disorder which is impairing her capacity to parent. Ms McMahon was aware of [X]’s absences at school - which are not in dispute and verified by independent evidence - whilst in the care of her mother, and

Ms McMahon was aware of the letter from the Principal of [R] School about [X]’s behavioural problems.
Many of the facts upon which Ms McMahon formed her opinion are not the subject of dispute. I find Ms Clifton underplays the seriousness of the mother’s conduct in engaging [X] directly in the court process, the impact on [X] of instability in the mother’s relationships, the impact of 13 changes in accommodation for [X] in six years and [X]’s problems at school. I find Ms Clifton underplays the significance of the impact on [X] of being removed to another country away from her father for a period of months, and cutting off [X]’s contact with her father altogether during those months when [X] was accustomed to spending regular time with her father. I find counsel underplays the mother’s lack of insight into the impact of high conflict on [X].
As neither party has yet been cross-examined as to the facts about which there is considerable dispute, and Ms McMahon’s evidence has been tested over many hours in relation to the contents of her two reports, the sexual abuse allegations and the sexual abuse that is known to have occurred, I am satisfied I must give Ms McMahon’s views very significant weight, and I do so.
The matters I have raised under this primary factor are the basis of my determination. However, I am required to briefly address the additional factors in section 60CC(3).

THE ADDITIONAL CONSIDERATIONS

The child’s expressed views and the weight those views should be given.

I have no regard to [X]’s views in reaching this interim decision.

The nature of the relationships between the child and each parent and the child and other persons.

Ms McMahon says [X] has a close relationship with each parent and a positive relationship with the father’s fiancé and with Mr M. I have regard to these matters.

The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent.

With the exception of the events of September last year when the father kept [X] in breach of orders, and with the exception of the time the mother stopped [X] seeing her father while the sexual abuse allegations against him were investigated, the parties have substantially complied with the orders of early 2008. As I have noted, there is some concern about the mother’s support for [X]’s relationship with her father, evidenced by her trip to Poland. This is a matter, however, about which I will make findings at final hearing.

The capacity of each parent to provide for the needs of the child including emotional and intellectual needs; the attitude to the child and to the responsibilities of parenthood demonstrated by each parent.

I have already referred to Ms McMahon’s views about each party’s capacity to parent. Dr Rikard-Bell has been asked to assess each party’s parenting capacity, and this will clearly be a significant issue at trial.

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 relevant characteristics of the child.

I have nothing to add in relation to this factor.

The extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent including spending time with the child, participating in decision–making about his or her welfare, and facilitating the other parent to do the same, and the extent to which each parent and party has fulfilled his or her obligation to maintain the child.

I have nothing further to add in relation to this factor.

The likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either parent or any other child or other person with whom the child has been living.

I have addressed these matters already. I am satisfied, on the basis of Ms McMahon’s evidence, that on balance, any separation anxiety [X] is likely to experience will be partly offset by her spending regular time with her mother, and is outweighed by the risks [X] faces in her mother’s primary care.

The practical difficulty and expense of a child spending time with and communicating with a parent.

There are no issues in relation to practical issues.

Parental Responsibility

In February 2008, an order was made by consent for the parties to have equal shared parental responsibility for [X]. However, it is common ground in these proceedings that there is a high degree of conflict between these parties which is adversely affecting [X]. Given this level of parental conflict, and given the very fundamental issues which remain to be determined in this matter, I am not satisfied it is in [X]’s best interests for the court to leave that order in place. I am not satisfied it is in [X]’s best interests for the court to make a determination on the question of parental responsibility at this interim stage.

Conclusion

There are critical questions needing urgent answers in this case. In my view, they include, but are not limited to these:
a)Does the mother have a psychiatric condition or personality difficulties which are affecting her ability to parent appropriately? If so, can she be effectively treated and therefore remedy any impairment currently existing in her parenting capacity?
b)Can the mother learn to recognise and respond appropriately to [X]’s emotional needs?
c)Can the mother learn to differentiate between issues relevant to [X]’s welfare and issues to which [X] should not be exposed?
d)Has [X] been emotionally harmed by the mother’s parenting to date? If so, can [X] be assisted?
e)What is likely to be the short term and long term emotional impact on [X] if she lives primarily with her mother, or if she is moved from her mother to live primarily with her father on a final basis?
f)If [X] is to be moved on a final basis to live with her father, how should such an order be implemented to minimise any distress [X] may experience? What impact would such a move have on [X]’s relationship with her mother?
g)How did it come about, when [X] was in the care of her father, that [X] was photographed in pornographic postures?
h)Was it Mr V who took the photos? Did he do it alone? Was he asked to do it? If it was Mr V, was it known to either the father or his fiancé that Mr V had a propensity for this kind of conduct?
i)How did it come about that [X] was placed in this situation without the knowledge of either the father or his fiancé? Was she photographed on one occasion, or more than one occasion? What exactly were the circumstances?; and
j)In what way has [X] been affected by this event or these events?
These are all questions which I will endeavour to answer at final hearing when further evidence is available. It is hoped by the final hearing the investigation currently being undertaken into these pornographic photos will have progressed to a point where certain findings can be made. At this stage, it is not possible to make findings in relation to that matter.
I am guided by the objects and principles already referred to, having regard to all the matters I have raised. I am satisfied the orders I am about to make are in the best interests of [X] until final hearing in July 2010, or until further evidence is available in relation to the mother’s mental state and/or in relation to the pornographic photographs of [X]. I have given the Independent Children’s Lawyer liberty to apply at

48 hours notice, and I will expect the matter to be brought back before me urgently should this further evidence indicate that a change should be made to the orders I am about to make.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Sexton FM

Associate: Skye Owen

Date: 26 February 2010