Auber & Wagram
[2007] FamCA 1286
•2 November 2007
FAMILY COURT OF AUSTRALIA
| AUBER & WAGRAM | [2007] FamCA 1286 |
| FAMILY LAW – parenting - Magellan - allegation of sexual abuse - mental health of mother - conditional residency order |
| Family Law Act 1975 (Cth), s 60B(1), s 60CC(1), s 61DA, s 65DAA(1) and (2) |
| FATHER: | Mr Auber |
| MOTHER: | Ms Wagram |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLF | 1133 | of | 2006 |
| DATE DELIVERED: | 2 November, 2007 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Brown J. |
| HEARING DATE: | 18, 19, 20 and 23 July, 2007. |
REPRESENTATION
| COUNSEL FOR THE FATHER: | Mr. Eidleson |
| SOLICITOR FOR THE FATHER: | Pearsons |
| COUNSEL FOR THE MOTHER: | Mr. Pannifex |
| THE MOTHER: | Ms Wagram |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms. Benjamin |
| INDEPENDENT CHILDREN’S LAWYER | Marshalls & Dent |
Orders
That all previous parenting orders and injunctions in relation to the child … born … October, 2002 (“the child”) be discharged, and without limiting the generality of this order:
(a)A (the mother’s sister) is released from the undertaking given by her on 17 August, 2006;
(b)Ms U (the mother’s de-facto mother-in-law) is released from the undertaking given by her on 24 July, 2007;
(c)the order made herein on 17 August, 2006 pursuant to which Mr B was not to have any contact with the child is discharged; and
(d)the order made herein on 17 August, 2006 pursuant to which Mr F was not to have any contact with the child is discharged.
That the mother and father have equal shared parental responsibility for the child save that the mother may determine the primary school at which the child is to be enrolled in 2008, and must advise the father of the name and address of that school no later than seven days prior to the commencement of the 2008 school year.
That as and from 12:00 noon on 6 November, 2007 the child live with the mother, and this residence order is conditional upon the mother’s compliance with paragraph (4) hereof.
That the mother undertake such therapeutic treatment or other interventions (including medication) as recommended by Dr. W or his nominee, or, in the event she has not already consulted Dr. W, such other psychiatrist as is nominated by the independent children’s lawyer after consultation with Dr. E and the mother PROVIDED THAT :
(a)the treatment or intervention may be provided by a psychiatrist, psychologist, counsellor, general practitioner or like professional, as recommended by the psychiatrist consulted by the mother;
(b)the mother abide by all reasonable directions of the professional consulted, including directions relating to medication; and
(c)the mother must have an initial consultation with a psychiatrist pursuant to this order within one month hereof and confirm her attendance to the independent children’s lawyer, in writing.
That until 12:00 noon on 6 November, 2007, the child live with her paternal grandmother, and spend such time with the father as is agreed between the father and the paternal grandmother and at 12:00 noon on 6 November, 2007 the paternal grandmother or her nominee deliver the child to the mother or her nominee at the M Shopping Centre.
That as and from 12:00 noon on 6 November, 2007 the father communicate with and spend time with the child as follows, and this order is conditional upon his compliance with paragraph (7) hereof :
(a)until the commencement of the third school term in 2008, during school terms, on two out of each three consecutive weekends, from the conclusion of child care on Friday (or, once the child commences school, the conclusion of the school day) until 6:00 pm. on Sunday, commencing on 16 November, 2007, such time to :
(i)commence on 16 November, 2007; and
(ii)recommence on the second weekend in each school term;
(b)commencing in the third school term in 2008, during school terms, on two out of each three consecutive weekends, from the conclusion of school on Friday until the commencement of school on Monday or, if Monday is not a school day, 9:00 am. Monday, such time to recommence on the second weekend in each school term;
(c)commencing in the third school term in 2008, during school terms, (and in addition to the time set out in paragraph (6)(b) hereof) from the conclusion of school on the Monday which follows the weekend in which the father does not spend time with the child pursuant to these orders, until the commencement of school the following Tuesday;
(d)commencing in the first school term holidays in 2008, for one half of each school term holidays, at times to be agreed and failing agreement :
(i)the second half in 2008 and each alternate year thereafter, commencing at 12:00 noon on the middle day of the holiday and concluding at 6:00 pm. on the last Sunday of the holiday; and
(ii)the first half in 2009 and each alternate year thereafter, commencing at the conclusion of the last day of the school term and concluding at 12:00 noon on the middle day of the holiday period;
(e)for ten days in January 2008, at times to be agreed and, failing agreement, from 10:00 am. on 1 January until 6:00 pm. on 11 January, 2008;
(f)commencing in the summer school holiday in 2008/2009, one half of the summer school holiday at times to be agreed and, failing agreement :
(i)the first half of the holidays in 2008/2009 and each alternate holiday period thereafter, commencing at the conclusion of the last day of the school year and concluding at 12:00 noon on the middle day of the holiday period; and
(ii)the second half of the holidays in 2009/2010 and each alternate holiday period thereafter, commencing at 12:00 noon on the middle day of the holiday period and concluding at 6:00 pm. on the last Sunday of the holiday period;
(g)from 6:00 pm. on Christmas Day until 6:00 pm. on Boxing Day in 2007 and each alternate year thereafter;
(h)in the event Fathers’ Day does not fall on a weekend when the child would spend time with the father pursuant to these orders, the child shall spend time with the father on that weekend in lieu of the next weekend on which she would otherwise spend time with him;
(i)on the child’s birthday, at times to be agreed and, failing agreement :
(i)if the birthday falls on a school day, from the conclusion of school until 6:00 pm.; and
(ii)if the birthday falls on a non-school day, from 10:00 am. until 2:00 pm.;
(j)by telephone on each Wednesday between 5:00 and 7:00 pm., the mother to make the child available to take a telephone call from the father during that period, and to ensure (in the event a telephone number provided by her is a mobile phone number) that her mobile phone is charged and switched on during that period;
(k)at such times as the parties may otherwise agree.
That the father be and is restrained from using marihuana or any other illicit drug during periods of time the child is with him and for a period of 48 hours prior to each period of time with her.
That notwithstanding paragraph (6)(f)(i) hereof, the child live with the mother from 6:00 pm. on Christmas Day until 6:00 pm. on Boxing Day in 2008 and each alternate year thereafter.
That in the event Mothers’ Day falls on a weekend when the child would not live with the mother pursuant to these orders, the child shall live with the mother on that weekend in lieu of the next weekend on which she would otherwise live with the mother.
That in the event the child’s birthday falls on a day on which she would not live with the mother pursuant to these orders, the mother shall spend time with the child as agreed between the parties and, failing agreement ;
(a)if the birthday falls on a school day, from the conclusion of school until 6:00 pm.; and
(b)if the birthday falls on a non-school day, from 10:00 am. until 2:00 pm.
That in these orders the middle day of a school holiday period is :
(a)if there are an odd number of days in the holiday period, the middle day; and
(b)if there are an even number of days in the holiday period, the last day of the first half of the period.
That each of the parties be responsible for the child’s day to day care, welfare and development, when in his or her care.
That each of the parties, by him or herself, and his or her servants and agents be and are hereby restrained from :
(a)denigrating the other party or any members of that other party’s family in the presence or hearing of the child, and from allowing any other person to do so in the presence or hearing of the child;
(b)discussing any allegation made in the course of these proceedings with the child, or within her presence or hearing, and from allowing any other person to do so;
(c)showing any document filed in these proceedings or adduced into evidence in these proceedings, to the child, or allowing her access to any such documents, and from allowing any other person to do so, save if directed to do so in the course of a subsequent investigation by the Department of Human Services or Police;
(d)removing the child’s residence from metropolitan Melbourne, save with the consent in writing of the other parent; and
(e)removing or attempting to remove the child from the Commonwealth of Australia save pursuant to court order AND IT IS FURTHER ORDERED :
(i)that the Australian Federal Police place the name of the child born in October, 2002 on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch list until further order of the Court; and
(ii) as soon as practicable the independent children’s lawyer serve a sealed copy of this order upon the proper officer of the Australian Federal Police at Melbourne, AND IT IS REQUESTED that Australian Federal Police give force and effect to this order.
That subject to any agreement between the parties to the contrary, and save :
(a)where provided otherwise in this order; and
(b)where changeovers are to commence at the start or conclusion of a child care or school day;
the father or his nominee shall collect the child from the mother’s home at the commencement of a period of time with the child and the mother or her nominee shall collect the child from the father’s home at the conclusion of his time with her.
That each of the parties keep the other informed of his or her current residential address and telephone number.
That upon the child’s enrolment at school, the mother forthwith authorise the principal of the school attended by the child to provide to the father, at his expense (if any) :
(a)copies of each school report for the child;
(b)all order forms for photos of the child; and
(c)copies of publications routinely provided to parents.
That the father and mother each be at liberty to attend the school or schools attended by the child from time to time for events, activities and functions routinely attended by parents PROVIDED THAT :
(a)save to collect or deliver the child pursuant to these orders, the father not attend the child’s school at the commencement or conclusion of a school day unless to attend an event, activity or function pursuant to this paragraph; and
(b)the mother not attend the child’s school at the conclusion of a school day or commencement of a school day on which the father is to collect or deliver the child, save to attend an event, activity or function pursuant to this paragraph.
That pursuant to section 65L(1) of the Family Law Act 1975 (“the Act”), compliance with these orders be supervised, as far as practicable, for a period not exceeding 12 months by a counsellor nominated by the Director of Court Counselling of this Registry of the Court and that such supervision be reportable in the event :
(a)another application is filed pursuant to the Act; and
(b)the judicial officer before whom it is listed requests such a report.
That as soon as practicable the mother provide a sealed copy of these orders to the principal of each school attended by the child from time to time.
That a copy of the reasons for judgment herein may be provided to :
(a)Dr. E;
(b)Mr. V;
(c)the principal of any school attended by the child and, in his or her absolute discretion, any member of staff of that school or any psychiatrist, psychologist, counsellor or other professional working with the child through the school;
(d)any psychiatrist, psychologist, counsellor or like professional consulted by the mother or the child; and
(e)the Department of Human Services and any member of a police force or government department investigating any subsequent allegation involving the child.
That the independent children’s lawyer be discharged one month from this date or, in the event a Notice of Appeal is filed, on determination of the appeal PROVIDED THAT if it is necessary for a psychiatrist to be nominated pursuant to paragraph (4) hereof, and no such psychiatrist has been nominated within a month hereof, that period be extended until a psychiatrist is nominated pursuant to that paragraph.
That all extant applications be otherwise dismissed.
That these proceedings be removed from the List of matters awaiting finalisation.
That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Brown delivered this day will for all publication and reporting purposes be referred to as AUBER & WAGRAM.
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF 1133 OF 2006
| MR AUBER |
Father
And
| MS WAGRAM |
Mother
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
The mother and the father met in December 2001 and began living together soon after that meeting. They have one daughter, born in October, 2002 (“the child”). They separated in early 2005. The Court is asked to determine with which parent the child should live and the nature and extent of the time and communication she should have with the other parent. It is also asked to determine whether one or both should have parental responsibility for her.
The mother is convinced that the child has been sexually abused by the father, a conviction formed on 29 January, 2006 and maintained. Convinced the child was at risk of further abuse if she were to spend time with the father, she disobeyed orders which provided for the father to have contact with the child which, in turn, led to her arrest on 17 August, 2006, and to orders providing for the child to live with third parties pending trial. She remains firm in her views about past sexual abuse and future risk. Nevertheless, it was submitted that having experienced the consequences of breaching court orders, and aware of the lack of cogent evidence (sufficient to satisfy a court) of sexual abuse, she is prepared to seek orders providing for equal shared parental responsibility and for the father to spend time with the child unsupervised, and prepared to abide by an order that the child live with her subject to her own compliance with conditions relating to her psychological or mental health.
Although the father said a number of times that he would agree to the child living with her mother and spending time with him, if the court were satisfied about the mother’s mental stability and/or continuing treatment, his final submission was that he should have sole parental responsibility for the child, who should live with him and have limited supervised contact with her mother unless and until her treating psychiatrist is satisfied supervision is not warranted. If her psychiatrist formed that view, she should be at liberty to bring further proceedings seeking orders for unsupervised time with the child. A copy of the handwritten minute of orders sought by the father is annexed to this judgment.
The independent children’s lawyer (ICL) submitted that orders should provide for the child to live with the mother subject to conditions relating to psychiatric treatment and compliance with orders, and spend significant time with the father on an unsupervised basis, both parents sharing parental responsibility.
LEGAL PRINCIPLES
The provisions in the Family Law Act 1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
Section 60B of the Act sets out the objects of the part of the Act dealing with children and the principles underlying them, in these terms :
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
The objects point the way to an optimum outcome. The first two are picked up in s.60CC(2) as the primary considerations when determining where children's best interests lie. The second is also reflected in the circumstances in which the presumption of equal shared parental responsibility is not to apply, those circumstances relating to findings about violence; see s.61DA(2).
EVIDENCE
Findings are made on the balance of probabilities having regard to the evidence and my observations of the demeanour of witnesses. In what follows, statements of fact constitute findings of fact.
The mother relied on affidavits sworn by her on 23 March, 2006, 3 November, 2006 and 19 June, 2007. In addition, she relied on an affidavit sworn by her de-facto mother-in-law, Ms U, on 19 June, 2007 and she called her present partner, Mr M.
The father relied on an affidavit sworn by him on 5 June, 2007, an affidavit sworn by his present partner, Ms C, on 5 June, 2007 and an affidavit sworn by his mother, the paternal grandmother, on 5 June, 2007.
The independent children’s lawyer relied on an affidavit of a psychiatrist, Dr. E, sworn 8 March, 2007 and an affidavit of a psychologist, Ms. P, sworn 12 November, 2006. Pursuant to a subpoena, counsel for the independent children’s lawyer called Ms. T; a proof of her evidence was tendered as exhibit ICL-1.
Also in evidence was a family report prepared by Mr. V, the transcript of a hearing on 17 August, 2006 in which evidence was given by Mr. V and a report dated 26 May, 2006 prepared by the Department of Human Services, pursuant to an order made on 6 April, 2006.
This is a case in which allegations of past criminal offences were made about three people who are neither parties nor witnesses. In the course of the proceedings, orders were made enjoining the parties from allowing the child to be brought into contact with each of those people. It was disconcerting to have no admissible evidence referrable to the truth of these allegations, specifically those made against Mr J, Mr F and Mr B. To put those people in context, I propose to say a little more about the personal circumstances of the parties and witnesses than might otherwise be done.
The mother was born of an African father and a European mother in September, 1981. Her parents met in Europe and married in Africa. The mother has a half-brother, aged 32, the son of her mother from a previous relationship. The mother’s parents had two daughters; the mother’s sister, A is two years older than her, and I will refer to her by her first name to avoid confusion, as she shares the mother’s surname.
The mother’s parents separated shortly before her birth and the mother’s mother returned to Australia, where the mother was born. By the time the mother was two, she and her sister had been placed in foster care. The mother’s mother suffered from psychiatric illness; the mother was later told that her mother was a manic depressive, a drug user and had no permanent home. The mother was physically abused by her mother, whom she loved, but who rejected her children, the consequences (at least in part) of her mental illness and drug use. She died of an overdose when the mother was in her early teens.
Having had access to some material about the mother’s early life, Dr. E described her background as horrific. She and her sister lived in two group homes and three foster homes, before being placed in a permanent home with a family in L. Her foster mother was Aboriginal; her foster father was not. They had two children of their own and fostered other children. She lived with that family from the time she was four until she was 14. She was abused and neglected. She was separated from her sister A when 8. After leaving her foster family, she was homeless for a period and by the time she was 15, was smoking a gram of marijuana every two days with a girlfriend. She then experienced a drug induced psychotic episode and, suicidal, was admitted to the adolescent unit at the … Hospital as an inpatient for some three months. That was in the second half of 1997. She was again hospitalised in late May 1998 for a little over two weeks, after attempting suicide by ingesting floor cleaner. There was probably a two year period after the psychotic episode in which she received treatment (in addition to the periods of hospitalisation) as an out-patient. There was no evidence of further psychotic episodes.
After her time at the Hospital, the mother lived in an Anglicare facility until she was 18 and then obtained a housing commission flat in H. She returned to study and completed her VCE, and worked at a supermarket for a couple of years. In December 2001 she met the father and was soon living with him. Within a short time, she was pregnant; the child was born in October, 2002. When the child was a little over two, they separated.
Whether prior to separation, as alleged by the father, or soon after separation, the mother formed a relationship with Mr J. In the course of a DHS investigation into the allegations of sexual abuse of the child, the mother learnt that Mr. J had what was variously referred to (in the DHS report) as “a previous criminal history of sexual offences involving children when he was an adolescent”, and a “history of sexual offending as a young adult involving children”. The first expression was used in a notification, the second attributed to the mother. While the mother did not immediately end the relationship, by the time Mr. J was interviewed by DHS workers on 10 May, 2006, they were no longer in a romantic relationship.
Until she was 24, the mother had no contact with her biological father, save for an occasional phone call or birthday card. She met him for the first time at Christmas 2005, a stressful experience for her, exacerbated by a fight between Mr. J and her father, serious enough to leave blood on her floor. The mother felt sufficiently stressed to seek treatment from the Hospital in January 2006, and was given Valium. She subsequently attended her own GP.
In November 2006 the mother met Mr M, now aged 30. In about May 2007 they commenced living together, in her home in R. Mr. M is Aboriginal. The week before the trial commenced the mother learnt that she was pregnant with their child, and due to give birth in early 2008.
Mr. M’s evidence was of being one of many siblings. His mother, Ms U’s evidence, was of having several children, and of Mr. M’s father having three other children. There is a discrepancy in the differing accounts of the number of children. Nothing turns on the discrepancy.
Mr. M is now 30 and works on Friday and Saturday nights as the co-ordinator of a team working with young people. For two and a half years he was employed by the Department of Community Services, and doing on-call work for DHS; this work involved caring for young children. He is presently undertaking a Bachelors degree through a Victorian university, on a fulltime basis, and spends a good deal of time on campus at the university, and at lectures. He is also an amateur competitor in a sport, and training takes more of his time.
Mr. M’s evidence was that he hopes to turn professional and make a living out of his sport. To further that aspiration, he hopes to travel overseas in January 2008 for a month or so, to improve his skills and have some involvement with ongoing promotions and competitions which take place there.
Mr. M was convicted on 18 March, 2001 of a serious assault and received a suspended prison sentence of twelve months. The assault was significant; he agreed the victim, who was a cousin, lost consciousness and it was his belief at the time that he had killed his cousin. He pleaded guilty to the offence. He has no convictions for violence since that time.
Mr. M’s mother, Ms. U, gave evidence for the mother and agreed to supervise the mother’s time with the child from the conclusion of the trial, pending judgment. She lives in S with her three youngest children, aged between 12 and 17. The two younger ones are at school and her 17 year old daughter had a child some three months prior to this trial. Earlier this year Ms. U had problems with her youngest daughter, who wanted to leave home and, by arrangement with DHS, that girl moved to stay at the mother’s home for about three months. Ms. U saw her regularly and the mother assisted in the reconciliation which resulted in that girl returning home to live with her mother, where she remains.
Two of Ms. U’s children are presently on remand, charged (she thought) with criminal acts. They are aged 19 and 21 and the younger of them previously spent time in a youth training centre, for offences of dishonesty.
The mother’s sister, A, also had a difficult childhood. While the sisters have been close, theirs has been a relationship marked by tensions, including those arising from the mother’s conviction of sexual abuse of the child, a conviction the mother’s sister apparently does not share. To Mr. V the mother was critical of her sister for not believing her allegations of sexual abuse, for using marihuana with the father and, as she saw it, supporting him. The DHS report records A’s belief that her sister (the mother) had an historical preoccupation with, and paranoia about, child sex offenders, and harboured suspicions about the father prior to the child’s birth. The mother’s sister did not give evidence.
The mother’s sister lives in I with Mr B. Mr. B is Aboriginal. He is the father of their three children and in about December 2006 she discovered she was pregnant with their fourth child.
In the evidence there was reference to Mr. B being convicted of the rape of a male. No criminal history was tendered and Mr. B was not called. A transcript of the hearing before Bennett J. on 17 August, 2006 includes an exchange between counsel appearing on behalf of DHS and her Honour, about Mr. B’s criminal history. Counsel for DHS advised of access through DHS to “IBR police check” and advice of “historical serious charges, including rape”. No counsel for the parties had access to any material relating to that on 17 August, 2006. Mr. V’s evidence that day was that he sought to explore the issues with A but she did not want to “outline those issues”, save to say that she understood the court was aware of Mr. B’s criminal background. Bennett J. made it clear that A had only been “brought into” the proceedings about four-fifths of the way through, by a telephone link, which rendered her reticence explicable.
The father was born in May, 1980. His biological father, who has the surname Auber, left his mother prior to his birth and the father took his mother’s surname. He was known as … until shortly after meeting his father, for the first time, in 2003; he then changed his own surname to Auber. His mother remarried soon after the father’s birth and she and her husband lived together until the husband’s death some ten years ago; it appears that, suffering from muscular dystrophy, he committed suicide. They had one child together and, prior to marrying the father’s mother, the husband had a child to another woman.
The father left home as a teenager after repeating year 10, and worked in country New South Wales. He told Ms. P in November 2006 that he had lived with six different women, and frequently moved in with a new partner soon after separation from the former one. According to the father one such partner, with whom he had a relationship for “some six months or so” prior to living with the mother, told his brother on the day the child was born that she had borne a son, who was the father’s child. The father said that son was roughly the same age as the child. Notwithstanding that evidence, he said the relationship with that son’s mother ended about a month or two before he met the mother, (which would date its end to October or November 2001) and that that son’s mother was then pregnant. Save for seeing him once, the father has had no contact with that son but said he has refused to consent to that son’s adoption by that son’s mother and her new partner.
In 2005, soon after separating from the mother, the father formed an intimate relationship with Ms C. He moved to live with her in her parent’s home in about June 2005. Ms. C was born in April, 1988. The father denied commencing a sexual relationship with her when she was 16; he said that occurred on her 17th birthday, being in April, 2005; she dated it to May 2005. Cross-examined, the father (when asked when he started living with Ms. C) replied that he met her in April, 2005 and moved in about a month and a half later, but later said he knew her for a short period prior to April. Ms. C left school at 16, in the middle of year 10, and gave no evidence of commencing paid work.
The father and Ms. C have a son, born in April, 2007, which was Ms. C’s nineteenth birthday. The three of them share a house in B. When first together they lived in G with Ms. C’s parents and their five other children, aged between seven and 14, with whose care Ms. C assisted. After about a year they moved to a house in I for five months, then back to Ms. C’s parents’ home (because her father had a disability and Ms. C could assist with the younger children), moving – about two weeks after their son’s birth – to their present home.
The father admitted to a long history of significant marihuana use, dating from the age of 14, in the course of which he used a minimum of ten pipes a day. His evidence was of ceasing to use marihuana in November 2006 although Mr. V recorded (after seeing him in January 2007) advice from the father that his marihuana use at that time had markedly reduced. The evidence supports a finding that he had not used marihuana for many months prior to trial.
About four or five years ago, the father’s mother (the paternal grandmother) formed a relationship with Mr F. She and Mr F did live together for a period but now live separately, albeit in the same street. The paternal grandmother is one of many children and has many nieces and nephews; the father said he has about 60 cousins.
In his oral evidence on 19 August, 2006 (after meeting with the paternal grandmother) Mr. V spoke of asking the paternal grandmother about an allegation made by the mother, relating to a former partner of the paternal grandmother. The mother had told Mr. V that the father told her that the paternal grandmother had a relationship with a man who had had an incestuous relationship with his then 16 year old daughter, which led to the birth of a child; the mother said she was told by the father that his mother and her partner then raised that child as their own, and that the child then aged 23.
Mr. V’s evidence was that he raised these allegations with the paternal grandmother, who was aware that they had been made, and adamantly denied them. She did say that she had a partner who suicided approximately eight years ago, a probable reference to her deceased husband. Although Mr. V referred in his evidence on 17 August, 2006 to the paternal grandmother’s relationship with Mr. F and to Mr. F being in court that day, nothing was said by him relating to any criminal history of Mr. F.
According to the paternal grandmother and the father, Mr. F has a conviction for indecent assault of a young woman, for which he was put on a bond. He was not called and his prior convictions were not in evidence. Their account of the circumstances which gave rise to the conviction could not, as a matter of law, constitute indecent assault; it involved him putting a hand on a young woman’s shoulder, to comfort her, as she was distressed at being raped (by someone else) the previous day. I cannot say anything about the age of the target of the indecent assault, or the facts on which the court found it proven, whether pursuant to a plea of guilty or a trial.
In a judgment delivered on 17 August, 2006, Bennett J. made it clear that the issue of Mr. F’s prior conviction was raised by counsel for the ICL very late in the hearing. Her Honour recorded that Mr. F :
. . . conceded in the body of the court that he had received a suspended sentence in relation to an indecent assault, and it appears that that has been sometime within the last five years.
In the sentencing hierarchy which operates in Victoria, there is a significant difference between a bond and a suspended sentence. A decision by a court to impose a term of imprisonment, and then to suspend it, is unlikely for a trifling offence. The lack of evidence on this point is troubling.
CHRONOLOGY
When the parties were together, they moved a number of times and the father moved through numerous jobs. After the child was born, the mother was her primary carer, as conceded by the father. The father was a heavy user of marijuana but was probably involved in aspects of the child’s care. After separation, the father saw the child, by arrangement with the mother. The mother agreed that on occasions she was so frustrated by the father’s refusal to financially support the child properly that she did not allow him to spend time with the child, but he did have overnight contact with the child, and saw her most weeks. The father’s evidence was of making application through Legal Aid in December 2005 and that letters relating to his contact with the child were sent to the mother. However, the evidence disclosed that, after preliminary enquires, he was not responsive to that service and no contact was made with the mother.
By the start of 2006, the mother had met her father for the first time and Mr. J and her father had a fight, which resulted in bloodshed. Against that background, the mother confided the extent of her stress to the father and, on 4 January, 2006, went to the Hospital, and asked to speak to a psychiatrist. The mother agreed (when the notes of the history given by her on presentation were read to her) that she told hospital staff she had a psychotic episode when she was 15, was very stressed, was having “ridiculous thoughts” and had vomited due to the stress. That those from whom she sought expert assistance did not believe she was having a psychotic episode can be inferred from the fact she was given Valium, and told to go home. The following day the mother went to her GP.
Counsel read to the mother part of a note of her attendance on her GP but initially only gave her an opportunity to agree with his last words, which related to the identification of “her current partner”; she agreed that was Mr. J. She agreed that she told her GP that she believed Mr. J was going to abuse the child and described the fight between Mr. J and her father, which resulted in bloodshed. She was prescribed Haloperidol.
The father’s recollection was that the fight between Mr. J and the mother’s father occurred around 25 January, 2006 and that he had taken her (at her request) to the Hospital about a week earlier. The medical records indicate that the fight occurred prior to the mother seeing her GP on 5 January and that the attendance at the Hospital was the previous day.
The relationship between the mother and father was good enough at that time for her to seek assistance from him and on occasions she asked if he could take the child to give her “some time” out. Although the father was critical of the mother’s attitude to him, and to him spending time with the child, between their separation and January 2006, Ms. C’s evidence was of the mother and father communicating very well prior to January 2006 and I am satisfied hers was a more objective recollection.
The father picked up the child on Saturday 28 January, 2006 and she stayed with him that night at Ms. C’s family home. The father’s account of that weekend illustrates both the significant role played by Ms. C in the child’s care, and the way drug use (and, thus, the effects of it) punctuated the father’s days and nights despite the child being in his care.
The father’s evidence was that he returned the child to the mother’s home at approximately 5:30 pm. on Sunday 29 January. His mother and Ms. C were in the car with him. On that the parties agree.
The mother’s account of what happened next is contained in a statement she made to police on 8 February, 2006, some ten days later. According to her, having ridden her bike for a short while and then gone into her room, the child told her that it hurt to go to the toilet, and asked her mother to go with her. They walked into the toilet and the mother saw three small drops of watery blood on the front of the toilet seat.
In that police statement the mother made it clear that “straight away” she thought that the child’s father had been “touching” the child; she said she had “these concerns” before, probably for about a year and a half. She called Mr. J into the toilet and showed him the blood on the seat. Having picked the child up and put her on her bed, she asked her if “her daddy touched her 'gina'”, to which the child answered “yes”. Asked where she was, the child said she was in the bath, and started crying. The mother than called Mr. J into the room and asked, again, “did daddy touch your gina?”, to which the child said he put his finger in her gina. The child was crying. The mother asked if he “had touched her bum”, to which the child replied, “yes”.
About three and a half hours after he had dropped the child off, the father received a phone call from the mother. According to her, she told him there was blood in the child’s undies and asked him what happened, to which he replied “she slipped in the bath”. She told him she was taking the child to hospital and he said “you do that, then”. According to the father, the mother rang saying that the child was bleeding and that he had molested her, and then hung up.
Mr. J and the mother took the child to the Hospital. They spoke with a nurse, and a doctor there undertook some form of examination before taking a urine sample. The DHS report contains a summary of the medical review notes prepared by the treating physician who saw the child on 29 January. The child was reported to present as alert, jumping and running. Following an external vaginal examination it was noted that there was an absence of bruising, bleeding, rash or thrush. Asked to point to where it was sore, the child said “it was sore here” (pointing to her genital area), where “daddy put his fingers inside it”.
An appointment was made at the Royal Children’s Hospital for the following day and the DHS report notes that Dr M examined the child there on 30 January, 2006. Dr. M’s notes describe a well young girl with no evidence of acute genital injury and nothing unusual noted in the external genitalia. The examination was limited due to the child’s distress, which hindered a complete examination of her genitals.
In her police statement the mother referred to concerns she had that the father was abusing the child prior to their separation, based on finding him in the child’s bed when she returned home from work when the child was about 16 months old. She said that ten months earlier, the child came home from access on a Sunday and tried to tongue kiss her and Mr. J, by which she meant that the child would “go to kiss us and open her mouth”. She said the previous weekend the child had put her hand on Mr. J’s penis when he was lying on the couch and that on the evening on which she observed the blood on the toilet seat, the child (when under a blanket with the mother) started to rub the mother’s legs with her legs, and tried to kiss her.
The mother’s evidence was that she ate literally nothing for some weeks after 29 January, lost a great deal of weight and was terribly distressed.
Another account of events on the evening of 29 January is contained in the DHS report. To DHS workers investigating a notification made on 30 January, the mother stated that she observed two drops of fresh blood on the toilet seat and that the child said “daddy put his finger in my rudies”, “in the front part of her gina”. When Mr. J was interviewed (later, on 10 May, 2006) he said he observed one drop of blood on the toilet seat after the child complained to her mother of pain and that he heard her disclose that her father had inappropriately touched her on the vagina.
On 31 January a Senior Constable from the SOCAU attended the mother’s home. The DHS report records that the child answered the door and, without prompting, stated “my daddy is naughty, he touched my gina”. The child then demonstrated this by pushing her fingers towards her vagina through her dress. On that day a VATE interview was conducted with the child. She said “daddy hurt my gina. He put his fingers in my gina at [Ms C’s parents’] house” but did not provide further details of the alleged abuse. When the Senior Constable asked the child why the child said her father was naughty, the child said “he put me in the bath and hurt my gina”.
The DHS report records that when the mother was advised that no further action would be taken in the matter, she referred to having noticed blood on the child’s underpants, something not included in her initial account to workers.
Having received a second notification on 13 February, 2006, DHS workers made extensive additional enquiries. The child was interviewed on 10 May; the worker noted the child had difficulty distinguishing between the truth and a lie. The child said her father “touched my gina”, “at his house”, that “he kissed my gina with his mouth”, that her father “bleeds her” and that her mother “saw blood on white”, possibly referring to the toilet seat on which the mother said she initially observed blood.
Workers spoke with the mother on a number of occasions. It appears that it was not until the second notification that concerns were raised by DHS about Mr. J’s previous criminal history and the mother learnt of them during that investigation. When interviewed on 28 March, the mother advised that while she and Mr. J were in a romantic relationship, they were not residing in the same home; she denied that Mr. J posed any direct harm to the child and maintained that he was never left alone with the child. She told workers that although Mr. J had advised her not to disclose to them that he was having contact with the child, she herself wanted to be open with DHS. She said she had implemented her own monitoring system to ensure the child was never left unsupervised with Mr. J and that he did not remain in her home overnight. By 10 May (when workers spoke again with the mother, and spoke with Mr. J) the two were no longer in a romantic relationship although they remained in regular contact. Mr. J told workers that in light of his history of offending, and the protective concerns raised in relation to the child, he was agreeable to supervised access with the child.
The father’s evidence was that after the phone call on the evening of 29 January, he did not contact the mother again until around 15 March when, with Ms. C, he went to the mother’s home to seek contact with the child. The mother refused that request. Ms. C was not asked about that incident but it is probable both parents were angrier than they conceded. According to the father, he told the mother that day that he intended to seek contact with the child “into the future”, but there is no evidence he took any steps towards achieving that aim.
On 29 March the mother filed the application which commenced these proceedings, together with an application for interim orders and a notice of child abuse. She sought that the child live with her and that the father’s contact be reserved. In the notice of child abuse she alleged that the father sexually abused the child on the weekend of 28 and 29 January, 2006, and that the child was at risk of further abuse.
The father’s evidence was that he was contacted and interviewed by police on 4 April and provided a full statement, in which he denied the allegations. He was not charged.
On 6 April the matter came before Senior Registrar FitzGibbon. The mother was represented, the father appeared for himself. The applications were adjourned to the Magellan list and orders made for the appointment of a child representative and for the preparation of a report by DHS. Until further order, the child was to live with the mother and the father’s contact with her was reserved. The father was to file any responses by 27 April.
On 2 May the father filed responses to the mother’s applications. As final orders he sought that the child live with him, that the mother’s contact with the child “be as deemed appropriate by this Honourable Court” and that he and the mother have joint responsibility for the child’s long-term care.
On 26 May the case came before Bennett J. Both the mother and father were represented, as was the child representative, and counsel appeared as amicus curiae on behalf of DHS. By consent, the previous orders in relation to the child were discharged. Orders made that day provided that, until further order, the mother and father were to retain responsibility for the child’s long term care, and the child was to live with the mother, who was to be responsible for her day to day care. The mother was restrained from bringing the child into contact with Mr. J.
Her Honour ordered (not by consent) that the father have contact with the child for three hours on each Sunday in seven consecutive weeks, increasing to five hours on either a Saturday or Sunday from 9 July. The mother was to deliver and collect the child from McDonalds at N Shopping Centre and the father’s contact was to be supervised by the paternal grandmother (incorrectly described in the order as the maternal grandmother) or such other person nominated by the child representative.
A number of other orders were made, by consent, that day. Each of the parties was to submit to random drug testing and both were restrained from using illicit drugs. The mother was restrained from misusing prescription medication. Orders provided for the mother to attend upon Dr. K on 8 June, 2006 for the purpose of a forensic assessment and report and she was to provide the child representative with a list of health professionals upon whom she had attended in the last five years. Another order provided for the preparation of a family report. The parties were to attend a trial notice listing on 9 August.
The mother failed to keep the appointment with Dr. K and did not make the child available for the contact which was to be supervised by the paternal grandmother. In her affidavit she deposed to the difficulty she had in facilitating any contact, given her conviction of the father’s sexual abuse; in the witness box, she described her conduct as wilful and defiant.
A judgment delivered by Bennett J. on 17 August, 2006 (in which she summarises the history of the case) records that the child representative sought that the matter be relisted, which it was on 30 June. There was no appearance by or on behalf of the mother that day, but her Honour recorded that a solicitor consulted by the mother had written to the other parties, advising that the mother would comply with the order for supervised contact and would attend Dr. K. Accordingly, another appointment was made for her to see Dr. K on 9 August.
The child was not made available for contact. On 14 July, the father filed an application, seeking that the mother be dealt with for contravening the contact orders, which was listed on 8 August and served on the mother on 28 July. Bennett J’s judgment of 8 August records that the mother failed to appear on the return date, although counsel (retained to appear for her) did appear. There was no appearance by the independent children’s lawyer (ICL); legislative amendments operative from 1 July, 2006 changed the terminology for a lawyer representing the best interests of a child from child representative to ICL.
On 8 August the mother failed to appear and, on application by the father, Bennett J. issued a warrant to arrest the mother and adjourned the father’s contravention application to a date to be fixed following the execution of that warrant. Bennett J’s judgment of 8 August records her satisfaction that a warrant was necessary to ensure the mother attended court “to be dealt with under the Div. 13A procedure for the alleged contravention”.
The mother was arrested on 15 August and brought into the cells at the Melbourne registry. Both parents and the ICL were represented and, again, counsel appeared for DHS. By that time another notification had been made to DHS, on 1 July, 2006, concerning (according to Bennett J’s judgment of 17 August) the mother’s mental health and, in particular, threats to harm herself as a result of the father having contact. Her Honour was informed that on 1 July DHS had placed the child in the care of the mother’s sister A, pursuant to a voluntary arrangement entered into by the mother, for the period 1 to 3 July inclusive. The child was subsequently returned to her mother’s care. A few days later the mother “self harmed” when attending a brother’s wedding celebration; according to Bennett J’s judgment, this involved the superficial cutting of her forearm.
On 12 August, 2006 DHS intervened again, placing the child voluntarily with the mother’s sister for 12 and 13 August. DHS was aware that a warrant had issued for the arrest of the mother and (Bennett J. records) they did not want the child’s care to be disrupted if the warrant were executed. Bennett J. recorded (in the judgment of 17 August) that “closer questioning revealed” that when the child was placed with the mother’s sister for 12 and 13 August, DHS had not formed “an independent view that [the child] was at risk of physical or emotional harm in the care of her mother”. On 14 August the child was returned to the mother’s care and was thus in her care when the warrant was executed.
On 15 August the father made an oral application for a change in the interim living arrangements; he sought that the child live with his mother and spend supervised time with the mother.
Bennett J. adjourned the further hearing to 17 August and ordered that, until the adjourned date, the child live with the mother’s sister (who was joined as a party to the proceedings for the purpose of giving effect to that order and who (according to Bennett J’s order) appeared by telephone link) and spend such time with the father and the paternal grandmother as was recommended and arranged by a proper officer of DHS. She ordered that the parties, the paternal grandmother and anyone else “considered relevant” attend upon a family consultant at 9:30 am. on 17 August, 2006 and that the family consultant report back to the court at 2:15 pm. on that day “as to the relationship between the child and the paternal grandmother and any other matters which to him seem relevant on which he has then had an adequate opportunity to form an opinion”.
It is clear that Bennett J. sought that assessment to assist in determining the father’s oral application for a change in interim residence. The family consultant was not asked to make any assessment of the relationship between the child and the mother, with whom she had lived all her life. The mother was released from custody on her own recognizance to attend court on 13 October (which her Honour fixed as the hearing date for the contravention application); the recognisance contained a number of other conditions relating to the child’s attendance at daycare and the place of the child’s residence.
On 17 August, 2006 Bennett J. heard evidence from Mr. V, who had seen members of the family pursuant to the order of 15 August. It is not surprising that the mother felt short-changed by that interview process; the time she spent with Mr. V was very short as his focus was, as directed by Bennett J’s order, on the relationship between the child and the paternal grandmother, and he did not observe the mother and the child together.
On 17 August, 2006 Bennett J. ordered that, until further order, the child live with the paternal grandmother in each week from 12 noon Friday to 9:00 am. Tuesday and with the mother’s sister for the balance of the week. The mother’s sister was restrained from bringing the child into contact with Mr. B, the man with whom she lived and the father of her three children. The paternal grandmother was restrained from allowing Mr. F to come into contact with the child. The paternal grandmother was not joined as a party. In relation to the parties’ time with the child, orders provided for the father to spend time with the child as agreed with the paternal grandmother and that all such time be strictly supervised by the paternal grandmother. Until further order the mother was to spend time with the child as agreed between the mother’s sister and her. That order did not require supervision but a preamble to the orders noted they were made :
Upon [the mother] undertaking to the Court that pending the further hearing she will not permit the child, […] born […] October 2002 to come into contact with the father of her own children or allow the mother to spend unsupervised time with the child.
The orders contained a specific paragraph restraining the mother’s sister from bringing the child into contact with Mr. B; the mother’s sister not only gave that undertaking but was enjoined (Bennett J. having joined her as a party) from allowing any such contact. In stark contrast to the order relating to the father’s time with the child, which was to be “strictly supervised” by the paternal grandmother, the orders were silent as to supervision of the mother’s time with the child. The undertaking bound the mother’s sister, but only in its terms; she was not to permit the mother to spend unsupervised time with the child. The undertaking did not require her to supervise the mother; on its face, she could arrange other supervisors.
That this was not an inadvertent typing omission is shown from the hand-written minutes, referred to in the first paragraph of Bennett J’s orders and on the file with the original, signed orders, marked “A” pursuant to paragraph (13) of that order; the minutes are identical to those subsequently typed. There is no mention in Bennett J’s judgment of supervision of either parents’ time with the child pursuant to orders made that day.
It is clear that the paternal grandmother took the view that the mother’s sister and only the mother’s sister could supervise the mother’s time with the child, a view so rigidly held that on 10 January, 2007 sitting in the waiting room at the court, with the father, the child and the mother, and waiting for Mr. V to emerge, she refused to allow the child to sit with the mother, asserting she (the paternal grandmother) could not supervise that “time”, because the mother’s sister was the mother’s supervisor.
On 17 August, 2006 yet another order was made for the mother to attend upon Dr. K and, in addition, the father was to attend upon a psychiatrist as recommended by the ICL for the purposes of a psycho/sexual assessment. The mother was released from the recognizance she had signed two days earlier. The orders made on 17 August, which related to the child’s residence and the time she was to spend with her parents, were made with the consent of the father, the ICL and DHS and (presumably) the paternal grandmother (who was not a party to the proceedings) but were opposed by the mother and the mother’s sister. Those orders provided for the matter to be adjourned before Bennett J. on 17 November, 2006, for directions only.
On 10 November the mother filed an affidavit, in which she deposed to her inability to comply with the order requiring her to attend upon Dr. K (as he was requiring a cancellation fee of $250) and seeking an order for the appointment of another psychiatrist, if Dr. K would not waive the fee. She annexed to that affidavit a report of a psychologist, who she had seen five times since a referral in September 2006. By the time the case came back before Bennett J. on 8 December, arrangements had been made for the mother to see Dr. E. The father discontinued his contravention application and the mother discontinued her form 2 application. The parties were ordered to attend a trial notice listing on 28 February, 2007. Bennett J. ordered that evidence given on 8 December by the mother’s sister be transcribed. That evidence related to concern that Mr. B was at the court that day and as the child was there (as she had been on 17 August) that was, on its face, in breach of the mother’s sister’s undertaking. Nothing said by the mother’s sister or Bennett J. (while the mother’s sister was giving evidence) suggested that there was to be a radical change in the interim arrangements, and no reasons for judgment are on the file. Orders that day say nothing about future arrangements; one would assume from them that the interim arrangements ordered on 17 August, which Bennett J. then said would operate until the trial, were to continue. That was not the case.
It is apparent that the child’s placement with the mother’s sister broke down on 8 December 2006. The mother’s sister had learnt she was pregnant with a fourth child; she had three young children (including twins, aged 3) and the orders made by Bennett J. on 17 August meant that her partner, and the children’s father, could not be present at any time the child was with her. She had been subjected to criticism of his presence at court. Although the mother’s sister did not give evidence before me, it is clear on the face of Bennett J’s order that the impact of the injunction restraining Mr. B’s contact with the child was far more onerous and restrictive than that restraining the child’s contact with Mr. F. Mr. F did not live with the paternal grandmother. They were not co-parenting their own three young children. I cannot say how long Bennett J. envisaged the period between 17 August and trial but, in my judgment, it is not surprising that the arrangement with the mother’s sister broke down. What is unfortunate is that the matter was not returned to court. Instead, the child simply moved to live on a fulltime basis with the paternal grandmother and no application was made for variation of the orders relating to the mother’s time with the child. I add that the undertaking given by the mother’s sister (as recorded in the order of 17 August) was said to operate “pending the further hearing”, not until further order; arguably, it expired on 8 December.
Although the orders made on 17 August would have allowed the mother to spend lengthy periods of time with the child, by agreement with her sister, the mother agreed that between August and December she saw her daughter two or three times a week, staying only 10 to 20 minutes. Her evidence was that the entire time she was there, the child would cry and beg to come home, wanting to know why she was not with her mother. This was distressing for the mother’s sister’s family, for the child and for the mother. The reality is that the child’s response, as described by the mother, was the response Mr. V foreshadowed when giving evidence on 17 August, if the mother were to see the child more than once or twice a week. When she saw her mother, she wanted to go home with her.
Thus the child, who had remained living with her mother after her parents’ separation, and who had only been separated from her mother for a few nights at a time (when she stayed with her father) was placed in a position where she saw her mother only two to three times a week, for a very short period, between August and December. In that same period, the child saw a good deal of her father. By arrangement with his mother, he and Ms. C spent much of his free time at her home.
It was difficult to untangle the evidence relating to the mother’s attempts to spend time with the child after the mother’s sister withdrew from the interim residence arrangements. Her evidence was of making an informal request to the DHS office and of being told they could not facilitate contact. She gave evidence of asking an Anglicare social worker the same question, and receiving the same answer. When the mother saw Mr. V on 10 January, 2007 she told him that she had only seen the child on one occasion since December and that was probably on Boxing Day 2006, when, by arrangement with the paternal grandmother, the mother’s sister took the child to spend time with the mother.
In March 2007 the mother and her sister went to the child’s childcare centre and were (the mother said) told that she could not see the child because of the court proceedings. Notwithstanding that, she did spend a few minutes with the child in the playground, supervised by two workers.
In early 2006 the mother had met Ms. T at the R day nursery, where both had children. They had also attended a Young Mum’s Group. When she learnt that the mother needed someone to supervise her time with the child, Ms. T agreed to do so but it took some time; it seems DHS undertook police checks. Her evidence was of supervising the mother’s time with the child on four occasions in May 2007, between 15 and 31 May. Each blamed the other for the arrangement breaking down in early June. I accept as true the mother’s account of what she witnessed at Ms. T’s home, which was a screaming match between Ms. T and her male partner, and her observations of the red marks on Ms. T’s neck. It is also probable that the mother failed to communicate well with Ms. T and came to be seen by Ms. T as insufficiently reliable. It is clear that DHS was involved in discussions about Ms. T’s supervision of the child’s time with her mother but pursuant to what order or arrangement, I cannot say.
The mother had some brief contact with her sister on Mothers’ Day 2007 after the father came to the mother’s sister’s home and said the child had been asking to see the mother. The mother’s sister agreed to supervise and brought the child to the mother’s home around 10:00 am. on Mothers’ Day. The mother’s evidence was that she believed the appointment was for 11:00 and did not meet the child and the mother’s sister until 10:45, at which time she could only have around 10 minutes with her, as her sister had to take her own children to a birthday party.
In retrospect, when one looks at events between August 2006 and the trial, the consequences of the orders of 17 August were grim. Bennett J. made it clear that she made the interim orders which removed the child from the mother’s care because she was concerned about the mother’s mental health. She noted that DHS did not, on that day, assess the child as being at risk of physical or psychological harm if left in the care of her mother but found “that is qualified by the fact that they are unable to assess the mother’s psychiatric state, and have been to date”. Her Honour found that DHS was concerned that were the mother to be assessed as psychotic and, for some reason, not be amenable to treatment which would “remove the symptoms”, there would be a risk of cumulative harm to the child’s emotional well-being, if left in the care of her mother. Her Honour defined “the question” as whether or not the mother was suffering symptoms then, and whether or not her then current mental state was going to adversely affect her ability to care for the child. It was on that material, together with Mr. V’s evidence of the challenges facing the mother, that her Honour made the interim orders dividing the child’s residence between the paternal grandmother and the mother’s sister.
Whatever the mother’s psychological state at the time those orders were made, I have no doubt that the decision had an adverse affect upon her functioning.
Dr. E did not see the mother until February 2007. He noted that the decision to remove the child from her care sent her into shock and resulted in a reawakening of her childhood depression and possible experiences of trauma. In his opinion, she became acutely depressed and shocked; she experienced dissociative symptoms with emotional numbness as a result of the trauma of having her daughter taken from her during a period in which she was utterly convinced and fixed in her view as to the alleged disclosures made by the child.
Bennett J’s concern in August 2006 was the potential for the mother to be suffering psychotic symptoms. When she saw Dr. E, and notwithstanding what he described as “the traumatising nature of her Honour’s decision”, the mother displayed no psychotic features and no disorder of her streams of thought. While insightless as to her fixed views of the child’s abuse (which Dr. E saw as related to early experiences in her own life) she had developed an awareness of a need to act both in her own and in the child’s interests, separate from those views.
On 6 June, 2007 the father filed an amended response in which he posited two sets of orders, one to operate if the court “deemed the mother’s mental functioning in a positive manner”, and one to operate (presumably) if there were no such finding. If the positive finding were made, he proposed that the child live with him from Friday evening to Monday morning on every weekend, for half school holidays and on special days; she would live with her mother for the balance of that time. If the court were not satisfied about the mother’s mental functioning, the child should live with him and spend time with her mother as ordered by the court, and he should have sole parental responsibility. The father reiterated these orders in an affidavit he filed that day.
That month the mother raised the potential for Mr. M’s mother, Ms U, to supervise her time with the child, and Ms. U swore an affidavit deposing to her willingness to do this on 19 June, 2007. No arrangement having been put in place prior to the trial commencing, the child had seen the mother only a handful of times in the preceding six months prior to the trial.
The mother must accept some responsibility for not seeing the child more often. She was candid in saying that she saw no need for supervision and, indeed, that she did not wish to have supervised contact. It is apparent that until the trial (and, perhaps, still) she believed that the orders for supervision had been imposed because she had previously ignored court orders; she deposed to that in paragraph 51 of her affidavit sworn 19 June, 2007. The judgment of 17 August makes it clear that the rationale for the orders made by Bennett J. that day was concern about the mother’s mental health; a secondary reason may have been a perceived need to ensure the mother did not continually raise the alleged sexual abuse with the child, or expose her to concerns which should be kept in the adult world, particularly those arising from the mother’s conviction that the father is a paedophile.
On 20 June, 2007 the mother filed an amended application for final orders in which she sought that the parties have equal shared parental responsibility for the child and that the child be returned to live with her, over a four week period. She sought orders providing for the father’s time with the child to be supervised, and for her to spend time with the paternal grandmother, provided Mr. F be supervised when with the child.
Having read Bennett J’s judgment of 17 August, it is clear that she envisaged both parents being in a position to spend considerable time with the child pursuant to the interim orders she made that day. At the end of the trial, consistent with those orders, I ordered that, until judgment was delivered, Ms U supervise three periods of time in each week, each lasting five hours.
On 26 July, 2007 (a few days after the trial concluded) an undertaking signed by Ms U was filed. Part C of the form (which should contain the details of the person giving the undertaking) contains the details of the ICL, who may have prepared the document. The undertaking was in these terms :
1.To supervise the mother, namely […] spending time with the child, namely […] born […] October 2002 (“the child”).
2.I understand that as a supervisor I am required to be in the direct sight of [the mother] and the child, as well as within earshot of the [the mother] and the child and, furthermore, I am required to ensure :-
(a)that [the mother] is not to mention these proceedings to the child;
(b)that [the mother] does not act inappropriately in the presence of the child;
(c)that [the mother] does not read or discuss any allegations of sexual abuse or any allegations or evidence that have been raised throughout the course of these proceedings;
(d)that [the mother] does not denigrate the father and/or any member of his family, including the paternal grandmother and the father’s partner, […], in the presence of the child;
(e)that [the mother] does not discuss any of evidence given by any of the witnesses, throughout the course of the proceedings.
3.The time that [the mother] will spend with the child will take place in the Melbourne metropolitan area during the following periods :-
(a)From 11.00 a.m. to 4.00 p.m. Tuesdays, Thursdays and Saturdays;
4.I am aware that if [the mother] demonstrates inappropriate behaviour in the presence of the child or breaches any of the provisions of paragraph 2 hereof, [the mother’s] time spent with the child is to forthwith cease.
5.In the event that [the mother’s] time spent with the child ceases, I am aware that I am to forthwith contact the paternal grandmother and the father and, at some stage, the Independent Children’s Lawyer, and make arrangements for the immediate return of the child.
6.It is understood that this Undertaking is a promise to the Court and if breached I can be dealt with by the Court for contempt of Court.
ASSESSMENT OF WITNESSES
Each of the parties and each of the witnesses on which they and the ICL relied (save Ms. P) was cross-examined. The court had an opportunity to observe the mother and father at some length.
In the witness box the mother presented as controlled, articulate and very intelligent. She did not deny that she had flouted court orders. She did not attempt to disguise her continuing conviction of the child’s abuse or her disdain for a man who would do what she believes the father has done to the child. Her demeanour left me in no doubt that she was aware that some answers given by her could be detrimental to her case but she was prepared to tell the truth as she saw it, and she saw it through a lens of distrust of the father and those in his camp who, she believes, have joined forces to present her as mad, rather than acknowledge that the father is bad.
Much was made in final submissions of evidence given by Mr. V of the mother misconstruing remarks made by the child to her, and her capacity to accurately process information provided by her daughter. Counsel for the father relied on this evidence to support a submission that the mother should be found to be an unreliable witness. Given the centrality of the submission, it is important to look at the substance of Mr. V’s evidence.
In his report dated 28 February, 2007 Mr. V reported as follows :
In response to various questions posited by her mother, [the child] commented that she does not brush her teeth and that she had not done so for “5 weeks”. She also subsequently stated that; she wanted to live with her mother, she didn’t want to see her father and that on occasions her father “gets angry”. She further spoke about “[Mr F]” being her new “pa” and that sometimes [Mr F] comes to the house [a reference to [the paternal grandmother’s] home]. While her comments were not entirely clear, the writer formed a view that [the child] was predominantly referring to [Mr F] coming when she is not present. The writer cannot be conclusive about this issue however.
Cross-examined, Mr. V elaborated on this evidence. He said he observed the mother and the child in the child assessment room and spoke of the mother’s focus on asking the child questions about brushing her teeth and how long since she had brushed her teeth. He then left the room and went to another room, behind a one-way screen, in which is a microphone which allows him to hear conversations in the next room. From there, he was able to see and hear the mother and the child talking together. He said words to the effect :
[The child] made a reference to [Mr F] being her new pa. The mother asked [the child] whether she sees [Mr F] and if [Mr F] is there? She also asked if [the child] stays at her father’s house and who else goes with them when [the child] and the father go to the shops. When I returned to the room, your Honour, the mother told me that [the child] has a new pa and the mother informed me that [the child] had said that [Mr F], or pa stays over. She later asked [the child] in my presence why [the child] wasn’t living at home with her mother, to which [the child] said, “I don’t know.” The mother then asked the child, “Do you want to live with your mother?” To which [the child] said, “Yes.” She then made a claim to me that [the child] had said that [Mr F] stays overnight and that the grandmother is in breach of the orders for allowing [Mr F] to be there.
Later, cross-examined by counsel for the father Mr. V described these events again, as follows :
Around about that time, your Honour, I leave the room. I go to the adjacent room which, as I said before, has a microphone in it which allows me to both hear and see what is going on. I observed and heard [the child] and the mother talking together. [The child] says that [Mr F] is her new pa. The mother asks [the child] whether she sees [Mr F] and if [Mr F] is there. She also asks [the child] if [the child] stays at her father’s house and who else goes when [the child] and her father go to the shops. [The child] asks if she can see [Mr F] – which I don’t believe was a comment I made before, your Honour. [The child] says that [Mr F] comes to the house but not when she is there. [The child] says that she wants to come home with the mother – which I don’t believe was a comment I made before. Your Honour, there was no intention to leave information out.
No, just keep going?---The mother says that it might be four more weeks – again, it’s a comment I don’t think I made before. I then return to the room. So I’m now in the assessment room physically with the mother and [the child]. The mother informs me that [the child] has a new pa. [The child] says it is Uncle […], which I believe was a reference to [Mr. F]. The mother says that [the child] says he stays. I ask [the child] when does she see [Mr F]. [The child] makes a comment, “When he comes around.” The mother asks [the child] why [the child] is not living at home with her, the mother and [the child] says - - -
Sorry, the mother asks [the child] or [the child] asks the mother?---No, the mother asks [the child] why she, [the child], was not living at home with her, the mother.
Thank you?---[The child] says that she does not know. The mother then says, “Do you want to live with your mother?” and [the child] says, “Yes”. The mother then claims to me that [the child] has said that [Mr F] stays overnight and that the grandmother is breaching the orders for allowing [Mr F] to be there.
It needs to be remembered that the orders made on 17 August restrained the grandmother from bringing the child into contact with Mr. F. They had been in force for almost five months when Mr. V saw the family in January 2007. The grandmother’s evidence about the contact she had with the child prior to separation was confused and inconsistent but she was clear in saying she had no opportunity to do so for a considerable period prior to the child’s parents’ separation (a period which ended when “[the mother] kicked him out of the house”) and after that separation, the paternal grandmother only saw the child when she was with her son. The father’s evidence was of having no contact with the child from 29 January, 2006 until the child went to live (initially for half a week at a time) with his mother in August 2006 and from that time on, the child should never have seen Mr. F. Notwithstanding that, almost a year after the last opportunity for contact with him (which would be when the child was with the father on the weekend of 28 and 29 January, 2006) the child clearly spoke of Mr. F as her new pa.
In those circumstances it is not surprising that a mother who is, she conceded, hyper-vigilant about her daughter’s safety; who is aware a judge has made an injunction arising from the potential for her child to be exposed to a risk of abuse if brought into contact with Mr. F; and who believes that her own genuine concerns about her daughter’s safety have been ignored by those in authority; would be disconcerted and distressed to hear her then four year old daughter refer to Mr. F as her new pa.
On Mr. V’s evidence, the child’s statement about having a new pa was accurately reported by her mother. What was not reported verbatim was her account of the child saying that Mr. F “stays over” or “stays overnight”. That was an objectively unwarranted extrapolation of something said by the child, but two things need to be taken into account. The first is that Mr. V himself (in paragraph 58 of his report) said he formed a view that the child was “predominately referring to” Mr. F coming to the paternal grandmother’s home when the child was not present, but he could not be conclusive about that issue. That is hardly surprising, given his evidence that when he asked the child the direct question (“I asked [the child] when does she see [Mr F]”), the child said “when he comes round”. The second is the mother’s suspicion of the paternal grandmother, a suspicion which could have been, in my judgment, reasonably exacerbated by the child’s comments about a new pa.
That the father was experiencing some difficulties is evidenced by him consulting a legal service in late 2005 but the desultory way in which he responded to that service was not indicative of someone committed to establishing a more formal and reliable contact regime. Similarly, after the allegations were made, he did nothing to seek contact (save for attending once at the mother’s home, a month and a half later) and it was she who brought the matter to court.
There is no doubt that the mother failed to facilitate contact after 29 January. I place weight on Dr. E’s evidence that the alleged disclosure by the child led to a dissociative episode and an intense and severe reaction, much of which related to her past life experiences. She believed she had let her daughter down, because she perceived symptoms of the problem were apparent and should have been picked up before the alleged disclosure, and believed that she had failed to protect her daughter appropriately. This led her to place herself in a position which was irrational, but which was based on her fixed, firm belief that she would allow nobody to interfere with what she saw as the importance of her role in protecting her daughter.
In Mr. V’s opinion the father would be more likely to facilitate the child’s relationship with her mother than the mother would be able to do in respect of the child’s relationship with her father. I accept that to be a reasonable conclusion, based on the evidence available to him when that report was prepared. Having regard to the final submissions made on behalf of the father, I am not so sure.
The order proposed by the father would involve the mother having only supervised time with the child, indefinitely. He proposed that the mother’s time with the child remain supervised until a treating psychiatrist formed the view that supervision was no longer required because the psychiatrist believed “the mother has insight as to the harm to the child emotionally if she encourage in the child the belief that she has been abused by her father”. If a psychiatrist prepared a report to that effect, the mother should be at liberty to bring further proceedings, seeking unsupervised time with the child. I cannot say whether the father considered the stress that such relitigation would place on the child, who would inevitably be involved in another round of expert assessments. Counsel for the father did propose a note to the order that if that occurred, and save for matters of which the father “is presently unaware” he would agree to orders that the mother spend time with the child on an unsupervised basis for two out of three weekends and half holidays and special occasions.
The order sought was not, on its face, posited on broad concerns about the mother’s psychiatric health; it would require a report about only one aspect, being the mother’s insight into the emotional harm to the child of exposure to her mother’s belief she has been sexually abused. That may suggest that the father does not have genuine concerns about other aspects of the mother’s psychiatric or psychological functioning, despite his apparent reliance on problems she experienced well prior to the allegations being raised.
In the course of his oral evidence one can discern some nine occasions when the father spoke about the child living with the mother, so long as the mother sought psychiatric treatment, complied with orders for the child to spend time with him and did not discuss the proceedings with the child or denigrate him or his family. Several times he volunteered his opinion she was a good mother and he spoke of never trying to stop the child spending time with both of them, saying that he “didn’t want to hog her ([the child]) all the time”.
Notwithstanding his acknowledgment of the child’s relationship with her mother and the child’s need to spend time with both of them, the orders proposed by the father carry with them the potential for there to be no contact. The father must be taken to be aware of the difficulty the mother had in finding appropriate supervisors; his counsel in final submissions spoke of the potential for supervision by the de-facto mother-in-law Ms U to break down and of the difficulty of overnight supervision, and suggested supervised time with the mother of not less than twice a week. The contact proposed by the father in the written minute prepared by his counsel would be on no less than two days per week and, failing agreement otherwise, on Tuesdays and Saturdays between 10:00 am. and 5:00 pm. I cannot say what he envisaged would occur once the child commences school, which would preclude the proposed contact on a Tuesday. I gained little sense that he had considered the impact on the child’s emotional functioning of being deprived of time with the person who had been, he acknowledged, her primary carer.
I have earlier referred to the passivity of the father’s demeanour. His response (as contained in final submissions) to the child spending time with her mother in the future (assuming the child were to live with him) may be influenced, at least in part, by the responses of those with whom he is in intimate relationships. It is likely Ms. C would do her best to encourage the child to see her mother; I could not make that finding in relation to the paternal grandmother.
The father has had little experience of parenting the child alone. He moved in with Ms. C within a few months of separation from the mother and the child spent her time with him at the home of Ms. C’s parents, and (according to Ms. C) in circumstances where she did the work associated with aspects of the child’s care such as bathing, dressing and toileting. Since the orders were made in August 2006 the father has spent a lot of time with the child, but (on his evidence) routinely with Ms. C, as well as with his mother.
The evidence is that the father works five days a week, leaving home at about 7:30 am. and returning home by 5:00 or 5:15 pm.; inherent in his proposal is the reality that Ms. C would be responsible for the child’s care on weekdays, when not at childcare or, soon, school. I do not doubt Ms. C’s capacity to care for her. Ms. C is less educated, less articulate and much younger than the mother and these factors would necessarily be reflected in her parenting. She has a young son, with whom the child is familiar, and it is likely their relationship is warm and appropriate.
In paragraph 91 of his report, Mr. V summarised the issues which he believed to be pertinent, one of which was some reservations about the viability of the father’s relationship with Ms. C. One can see the basis for that concern, given the father’s history of successive but not lengthy intimate relationships, and his swift establishment of a fresh relationship on cessation of the previous one. Given the role Ms. C would play were the child to live with her father, a breakdown in that relationship would have a very significant impact on her; Ms. C was very involved in the child’s care from the time the father moved to live with her in her family’s home and is likely to play a very significant role when the child is with them in the future. Nevertheless, I accept Ms. C’s evidence of her commitment to the relationship and I proceed on the basis that it is a viable one and likely to be maintained into the reasonably foreseeable future.
The orders proposed by the father would give him sole parenting responsibility, regardless of whether the mother’s time with the child moved to an unsupervised basis. I will consider the question of whether the presumption of equal shared parental responsibility is rebutted after considering all of the primary and additional considerations, but it must be said that to seek an order in those terms (particularly after giving the evidence he did of the circumstances in which he would be happy for the child to live with the mother) had a punitive edge.
I am satisfied that in either her mother or father’s home, the child’s physical needs would be met. She would probably be more intellectually stimulated in her mother’s home but I do not doubt the father, with the assistance of Ms. C, would endeavour to provide for those needs. Putting aside issues relating the mother’s perception of sexual abuse, with which I have dealt, I am satisfied that the child’s emotional needs could be met in both households.
The evidence of the father was that the mother was a good mother. Whatever motivated the change in his proposals between the time he gave evidence and the time final submissions were made, when he was in the witness box it was clear he was not concerned about the day to day aspects of the mother’s parenting.
I am mindful that the mother is expecting another baby so in her home, as in the father’s, the child would live with a younger sibling. I am not concerned at the evidence Mr. M may not be physically here in Melbourne when the new baby is born. The fathers of many children are absent at that time, often for reasons relating to employment, and I do not infer from his evidence that he is disinterested or unsupportive.
(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;
Whatever the result of the case, the child’s circumstances will change. She has been living with her grandmother since 8 December and, prior to that, lived half of her time there from 17 August. The paternal grandmother’s apartment has only one bedroom and the child has been sharing her bed and while the health problems which result in the paternal grandmother being on a disability pension have not impacted adversely on the child, they have had to be accommodated. The paternal grandmother has not sought orders for either residence or time with the child. Whatever the time the child spends with the father, the paternal grandmother will have opportunities to maintain her relationship with her granddaughter.
Were the child to live with the father she would be living with Ms. C, who she knows, and with their son. She spent time with Ms. C’s parents and siblings prior to the events which gave rise to the litigation and although that may not have occurred often since August 2006 (as the paternal grandmother had to be present to supervise all time the father had with the child) it is likely the child would be comfortable in that milieu.
In her mother’s home the child would be living with Mr. M for the first time. She has met him; there was evidence of a visit supervised by Ms. T which involved a meal and time in his company. Mr. M worked with children through DHS in the past. Taking that evidence into account, together with my observations of him in the witness box, it is probable he would establish a rapport with the child and, I am confident, would do his best to parent her responsibly and affectionately. The new baby is due early in 2008, which would be a change for the child, but one which older children routinely experience and adapt to. I do take into account the fact the relationship with Mr. M is relatively new, and untested. The mother parented the child alone from the time of separation (there was no evidence Mr. J played any significant role in her care) until the child was taken from her care in August 2006 and the father did not complain about her “mothering”; to the contrary, in his oral evidence he referred, several times, to her being a good mother.
I do take into account the evidence of the stresses which a new baby may place on the mother and that it is possible Mr. M may not be in Australia when the child is born. It is probable the mother will have the support of her de-facto mother-in-law, who presented as a capable woman and, if parenting orders were conditional upon it, she would also have advice from a treating psychiatrist or other professional.
A number of submissions went to the way in which the child should move from the paternal grandmother’s home, in the event she is to move to live again with the mother. The paternal grandmother supported a transition period before any such move. The ICL submitted that frequent contact with the mother should take place prior to the child being placed back in her mother’s fulltime care, over a period of about a month, and the father should have his first time with the child in the weekend following the child’s return to her mother.
No doubt that recommendation took account of Mr. V’s final recommendation, which was that the child live with her mother on a primary basis (contingent on there being no detrimental finding in relation to her mental health functioning) and that there be a gradual shift of the child’s primary care arrangements to enable her to make a successful transition from the paternal grandmother to her mother. He suggested the process could involve increasing the time the child spends with her mother over a monthly period, and including substantial overnight periods.
The ICL proposed that for a period the child should have weekends at home with her mother, initially from Friday through to Monday, and then to a Tuesday, and in that way get used to being back in her old home.
Having observed the paternal grandmother’s demeanour when she spoke of the mother and the mother’s attitude to her, I have reservations about the viability of a reasonably lengthy transitional arrangement. It is unlikely the child is unaware of the tension between the paternal grandmother and the father on one side, and the mother on the other; events in Mr. V’s waiting room in January give an indication of the potential volatility of the situation. The purpose of transitional arrangements would be to make it easier for the child, not harder. Save for the few days with the mother’s sister in July and August 2006, the child was taken from her mother’s primary care in August 2006 and went straight to live between the paternal grandmother’s and the mother’s sister’s homes, with no transitional arrangements at all. Mr. V’s recommendation on 17 July that the child not see too much of her mother was premised on his perception the child would want to return to her mother’s home, and it is probable the child would be delighted to do so.
The child has been attending the same day care centre as the mother’s sister’s twins, and if that remains convenient, that will be a continuing aspect of her daily life until she starts school. In final submissions counsel for the father spoke of the “reserves of experience” on which the mother could draw and I am satisfied she has the necessary parenting skills, and the emotional attachment to the child, to settle the child swiftly back into her care, if that is the decision of the court. The orders made at the end of the trial mean that the child’s contact with her mother was renewed; the situation is different to that in existence when Mr. V prepared his report, and at trial.
Mr. V recommended that the child should have unsupervised time with the father (contingent on there being no detrimental finding of sexual abuse) and suggested initial day time periods, moving to regular overnight arrangements. The child has been spending a lot of time with her father, Ms. C and their son, and the interaction Mr. V observed can give the court confidence the child will be comfortable with him and his new partner and son. Too many transitions to and from the paternal grandmother’s home may make it more confusing to the child, rather than less, and I do not find it probable the child would be distressed if she were to commence to spend time overnight with her father and new family (whether on a full-time basis or on weekends, holidays and special days) without the transitional arrangements suggested by Mr. V.
(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;
The problems in this case have less to do with cost than with communication, the distance between homes and the hostility between the parties and some of those who support them. It is important that changeover arrangements bear this in mind.
(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 child is not Indigenous however, her cousins (the mother’s sister’s children) are, as is the child’s de-facto step-father, Mr. M, and as will be her new sibling. Mr. M and the mother have friends who are Indigenous and they operate in that milieu. It is important the child feels comfortable in that world. The dislocated nature of the mother’s own upbringing means she has no real connection with the cultures of her parents. It is probable the Indigenous community, of which Mr. M’s family and the mother’s sister’s family are part, has much to offer the child. Similarly, the child is entitled to enjoy the benefits of the culture in which her father was brought up.
(j)any family violence involving the child or a member of the child’s family;
(k)Any family violence order that applies to the child or a member of the child’s family, if :
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
There was evidence of the mother seeking an intervention order on behalf of the child earlier in the proceedings but she did not pursue the application and there was no evidence of any other family violence orders.
(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;
As previously noted, the orders proposed by the father carry within them the potential for continuing litigation. The court should not shy away from that if it is essential to a child’s welfare, although it is generally preferable to make orders which are less likely to lead to further proceedings.
No doubt in an attempt to avoid further proceedings, the ICL proposed a set of orders which would come into effect if the mother (having obtained a residency order) failed to comply with an order for the child to spend time with the father. The proposed orders provided for the immediate issue of a recovery order to take possession of the child, and parenting orders to operate (at least until further order) which would place the child in the care of her father and provide for her to spend time with her mother.
While acknowledging the intent of such an order, I am not satisfied the court should accede to that submission. If the court orders that the child is to live with the mother, and she make the child available for contact with the father, the mother should be left in no doubt as to the consequences of a failure to comply. On proper application, a recovery order could well be granted, which would involve the child being collected by Australian Federal Police members and delivered into her father’s care. However, the court’s obligation is to focus on the best interests of children at the time orders are made and, I am satisfied, that the court would need to look at the circumstances then to determine where the child lived in the interim and what contact the other parent was to have with her, even were the child’s interim residence then to be with the father. To put in place a regime of time with the mother in those circumstances, without consideration of her then circumstances, might well not be in the child’s best interests.
(m)any other fact or circumstances that the court thinks is relevant;
I have had regard to the objects and principles of the relevant Part of the Act and the recommendations of Mr. V.
CONCLUSION
The court not having found relevant abuse or family violence, the presumption of equal shared parental responsibility applies. It must thus determine whether the child’s best interests demand its rebuttal, as implicit in the submissions of the father, who seeks sole parental responsibility.
I am satisfied that each of the child’s parents has much to offer her and it is in her best interests to have a meaningful relationship with both. Each loves her. Each wants what he or she believes is best for her. They have those things in common. They also have in common a distrust and suspicion of each other. The mother maintains her conviction that the father has abused the child; he maintains his scepticism about her mental health and her capacity to co-operate and comply with court orders.
Mr. V did not believe the mother and father would be able to co-operate with each other in relation to sharing parenting responsibilities or the time the child spends with each parent. I agree that it is unlikely, as things presently stand, that they could agree on what time the child is to spend with each, but I am not so convinced about parental responsibility. Both the mother and ICL sought an order for equal shared parental responsibility, and Mr. V recommended counselling to facilitate the mother and father “deciding on parenting responsibilities”.
Considering all the evidence and the findings I have made in respect of the primary and additional considerations, I am not satisfied that the presumption of equal shared parental responsibility should be rebutted, finding that not to be in the child’s best interests. While day to day decisions will routinely be made by the parent in whose care she is, significant decisions, such as those relating to her education, health and religion, should be made after input by both. The fact they do not now get on is not, in my view, sufficient reason to release them from the obligation to act together in the child’s best interests in the future. I do note Mr. V’s recommendation (if the child were to live with the mother) that she should have sole responsibility for making decisions about “longer term matters”, however I am not satisfied it would be in the child’s best interests for either parent to exercise that responsibility alone. The legislative intent is clear and while the court should always act on the facts in each case, it should not lightly find the presumption of equal shared parental responsibility rebutted.
The one exception will be the decision about where the child is to commence school in 2008. She needs to be enrolled very soon. Lengthy litigation such as this can itself impact on the capacity of parents to act co-operatively and many parents need time to adjust to a court imposed outcome. The mother will be able to select the school and enrol the child there, advising the father of that. Both parties will have input into any decision to change the child’s school from that time on.
The ICL sought a number of injunctions and I am satisfied each of the parties should be bound by them. In the child’s best interests, each should be restrained from denigrating the other and members of the other’s family and from discussing any allegations made in the proceedings with the child, or showing her any documentation relating to the proceedings. Further, save pursuant to court order or with the written consent of the other party, neither should be able to remove the child’s residence from the Melbourne metropolitan area and, save pursuant to court order, neither should remove her from the Commonwealth of Australia. These injunctions may provide a framework to assist the parties to build confidence in each other, as may an order for s.65L supervision, proposed by the ICL.
The presumption applying, the court must consider whether spending equal time with each parent would be in the child’s best interests. Neither parent seeks an order in those terms; nor does the ICL. I am not satisfied such an order would be in the child’s best interests. There are geographical constraints (the mother lives in R, the father in B) and the child needs time to settle into a stable routine, with one primary home. Both parties were very ably represented and as neither proposed an equal shared arrangement, nor put that as an option to Mr. V, I can assume both thought it not an optimal arrangement for their daughter.
Balancing all factors I am satisfied that the child should live with her mother and spend time with her father.
The court must then look at whether spending substantial and significant time with the father would be in the child’s best interests. The child is not yet at school but will commence in 2008. By then or soon after, there will be a younger sibling in each house. To an extent, the court can be guided by the parents’ own proposals as to what they think would be best for their child.
In his oral evidence the father spoke of two out of three weekends, of time during the week and school holidays, and of telephone contact. In final submissions his counsel spoke of the mother spending time with the child on two out of three weekends, if her mental health was such that supervision was not required.
The orders which the father proposed in his affidavit (assuming the child lived with the mother) provided for the child to live with him for the whole of each weekend. I am not satisfied orders in those terms would be in the child’s best interests. It is important that she have an opportunity to spend weekend time within her mother’s household.
The mother sought that the child be with her father each alternate weekend from Friday afternoon until Monday morning and on special days. Orders should be conditional on the father abstaining from marihuana use (given Ms. P’s evidence) and his time with the child should not be supervised.
The ICL submitted that the father should spend time with the child on two out of three weekends, each Wednesday evening and by phone twice per week. Some midweek contact would provide an opportunity to play a role in the child’s school life in due course, although the travel involved needs to be considered, particularly given the fact Ms. C does not have a drivers’ licence and both she and the mother would be juggling younger children.
The ICL submitted that two weekends out of each three with the father would strengthen the relationship between the child and the father and ensure it was a meaningful one. It was also submitted that there could be a benefit to the mother in having that time available to focus on her new baby, and on her relationship with Mr. M. I do not place weight on the latter submission. I have found the mother has the capacity to care for the child on a fulltime basis and I am not satisfied that the introduction of a new baby, and the experience of the early months of a new relationship, mean she needs time away from the child.
In my judgment, the child will need a period of stability after orders are made, by which I mean she should not move too often between homes. I am confident she will settle into both parental environments but frequent moves should be minimised for a period. She will be starting school in 2008, and that will be another new experience for her, despite years of child care. Once she is settled at school, there is potential for some mid-week overnight contact, which is likely to be less disruptive than a couple of hours after day care or school on a Wednesday, as proposed by the ICL. The father does not get home from work until 5:00 pm. or a little later and to move a child in peak hours (between 5:00 pm. and 7:00 pm.) between R and B is likely to be time consuming and frustrating for the adults, particularly as both households include (or will include) very young children. It would be better for the child to have an overnight period every now and then, than more frequent but stressful short visits.
I am satisfied that the child should move to live with her mother and start spending two weekends out of each three with the father, from Friday afternoon to Sunday evening. That arrangement will continue until the commencement of her third term in 2008 when the weekend time will be extended to Monday. I make that order mindful of the fact that many schools do not require children in prep. to attend five full days a week during their first couple of terms and a return to her mother’s home on a Sunday evening means she can settle in before the school week. From the start of the third term she will also spend a night with her father, early in the week during which she does not otherwise spend time with him. That will reduce the gap between periods the child is with her father and on that day, as on Fridays and – in due course – Mondays he can have some involvement in her school life. Orders will also provide for time with him during school holidays and on special days, and telephone communication.
I do have some concerns about changeover arrangements. The last months must have been very stressful for all parties and, particularly, the mother; the father has had to put up with the constraints of supervision but has been able to spend a lot of time with the child. The mother had no contact with the child at all between May and the trial and contact on three days a week since. It is naïve to imagine changeovers in the circumstances of this case, pending judgment, will have been free of tension and I have earlier referred to the outburst of the mother in January (when waiting to see Mr. V) and the paternal grandmother’s sometimes manifest dislike of the mother. That is a volatile mix. The ICL supported changeovers at the parents’ homes, which would be best for the child; it would normalise the situation for her and encourage her to see herself as part of both families. It is vital that those supporting each of the parents do not, intentionally or inadvertently, exacerbate the tension at changeovers. If problems arise the family may need to utilise a changeover service for a period.
While I accept the father’s evidence of ceasing drug use, I do propose to make the orders for his time with the child to be conditional on him not using illicit drugs. I do that on the basis of Ms. P’s evidence. The residential arrangements will be conditional on the mother undertaking therapeutic interventions as recommended by Dr. W (if she has commenced seeing him) or another psychiatrist.
I do not find it appropriate to make the residence order conditional upon the mother’s compliance with the orders for the child to spend time with the father and/or compliance with other orders, including injunctions. To do so would suggest that compliance is, absent such an order, optional. It is not. Were the mother to breach the orders providing for time with the father, or other orders made this day, she will be dealt with according to law. She has made clear her current understanding of the potential consequences of any such breach and should keep that knowledge firmly in mind. If she wants to bring up her daughter and play a meaningful role in her life, she will obey these orders.
I certify that the preceding
229 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.
Dated the day of 2007.
…………………………………………
Associate.
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Natural Justice
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Remedies
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