BACHMEIER & FOSTER

[2011] FamCA 86

FAMILY COURT OF AUSTRALIA

BACHMEIER & FOSTER [2011] FamCA 86

FAMILY LAW – CHILD ABUSE – Magellan case – child alleges sexual abuse by the father – child’s allegations are unreliable – insufficient evidence to substantiate the allegations – finding that the father does not pose an unacceptable risk of sexual abuse to the child

FAMILY LAW – CHILDREN – Parental responsibility – where the mother is the child’s primary carer – father has never been a primary carer of children – mother opposes a relationship between the child and father – child’s relationship with the father has deteriorated –child enjoys close relationships with maternal grandparents and half-siblings – high level of parental conflict – father proposes the child live with him immediately and spend time with the mother and maternal family – father lacks insight as to how his proposal will negatively affect the child – presumption of equal shared parental responsibility rebutted – sole parental responsibility allocated to the mother

FAMILY LAW – CHILDREN – with whom a child will live and spend time – child will live with the mother – child will spend infrequent time with the father – this will preserve a rudimentary relationship with the father

Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61DA, 61DB, 62G(8), 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 68P

Marriage of B & B (1993) FLC 92-357
Re C & J (1996) FLC 92-697
Goode & Goode (2006) FLC 93-286
H & K [2001] FamCA 687
Moose v Moose (2008) FLC 93-375
MRR v GR (2010) 240 CLR 461
Rice & Asplund (1979) FLC 90-725
W v W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

APPLICANT: Ms Bachmeier

RESPONDENT: Mr Foster

INDEPENDENT CHILDREN’S LAWYER: Mr Foat, Ticehurst Foat Lawyers

FILE NUMBER: NCC 1609 of 2007

DATE DELIVERED: 23 February 2011

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 31 January 2011 and
1, 2 & 3 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Ryan

SOLICITOR FOR THE APPLICANT: Adams & Associates

COUNSEL FOR THE RESPONDENT: Mr Graham

SOLICITOR FOR THE RESPONDENT: Graeme J Peters Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Mooney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ticehurst Foat Lawyers

Orders

1. All former parenting orders relating to the child C (“the child”), born … May 2003, are discharged.

2. The mother shall have sole parental responsibility for the child.

3. The child shall live with the mother.

4. Unless otherwise agreed in writing, the parties shall take all reasonable steps to ensure that the child spends time with the father for three hours on three occasions annually, being the Saturdays falling closest to 30 March, 30 July, and 30 November each year, with such time to be supervised.

5. For the purpose of implementing Order 4 hereof:

   (a)The supervisor of the time spent by the child with the father shall be staff at “Relationships Australia”, staff at “Life Without Barriers”, Ms WE, Ms TR, or some other person or entity nominated by one of those organisations or persons, in that order of priority.

   (b)In the event of disagreement between the parties, the mother shall do all such things necessary to engage the supervisor.

   (c)Each party shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisor.

   (d)       The father shall pay any costs of the supervisor.

   (e)The time that is to be spent by the child with the father shall commence at the time designated by the supervisor.

   (f)The venue at which the time is to be spent by the child with the father shall be designated by the supervisor, but must be within a 100 kilometres radius of the post office at W, NSW.

   (g)The mother shall cause the delivery of the child to, and the collection of the child from, the designated venue at the commencement and conclusion of the time spent by the child with the father.

   (h)If on an occasion that the child is due to spend time with the father that time together cannot be accommodated by reason of closure of the venue designated by the supervisor then the time the child would otherwise have spent with the father shall be made-up at another time as close to the original time as can reasonably be arranged.

   (i)The mother and father shall comply with all reasonable requests and directions of the supervisor.

   (j)Leave is granted to the parties to provide to the supervisor a copy of these orders and a copy of the reasons for judgment.

6. The parties shall take all reasonable steps to ensure that the child is able to communicate with the father in the following manner:

   (a)By the father being able to send emails, letters, cards, and/or gifts to the child on or about dates proximate to her birthday, his birthday, Father’s Day, and Christmas Day, and

   (b)By the mother promptly sending to the father:

   i)Written acknowledgement of receipt of the father’s written communication, and

   ii)Any emails, letters, cards, photographs, or other written communication that the child wishes to be conveyed to the father.

7. Each party is restrained from denigrating the other in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person denigrating the other.

8. Each party is restrained from permitting the child to refer to any person other than the biological parents by use of the terms “Mum” and “Dad” respectively.

9. Each party is restrained from causing or permitting the child to be known by any surname other than “Foster”.

10. The mother shall notify the father of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the father about the condition and treatment of the child.

11. The mother shall authorise and request the principal of any school attended by the child to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the child.

12. Each party shall forthwith inform the other, and keep the other informed, in writing, of their respective current residential address, mobile telephone number, and email address.

13. By reason of an inconsistency between some of these Orders and an existing Apprehended Violence Order, pursuant to s 68P(3) of the Family Law Act 1975 (Cth), the Registrar of the registry of the Family Court of Australia at Newcastle shall forthwith send a sealed copy of these Orders to:

    (a)       The Registrar of the Local Court of NSW at Newcastle

    (b)       The Commissioner of the NSW Police Service

    (c)       The Director-General of the NSW Department of Human Services

14. The Independent Children’s Lawyer shall forthwith send to the Director-General of the NSW Department of Human Services copies of:

    (a)       These Orders

    (b)       The reasons for judgment

    (c)The report of Dr R, psychiatrist, dated 30 November 2010

15. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations that 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 Fact Sheet attached hereto and these particulars are included in these orders.

16. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

17. Costs are reserved for 28 days.

18. Any and all outstanding applications are dismissed.

Notation

A.Orders 4, 5, 6, and 12 hereof are inconsistent with paragraph 7 of the Apprehended Violence Order made against the father in favour of the child (and the mother, as a protected person in a domestic relationship with the child) by the Local Court of NSW at Newcastle on 17 August 2010, in which case Division 11 of Part VII of the Family Law Act 1975 (Cth) applies and those parenting orders prevail to the extent of any inconsistency.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1609 of 2007

MS BACHMEIER

Applicant

And

MR FOSTER

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

1. The parties to this litigation are caught in intractable controversy about whether the father sexually molested their child on numerous occasions between 2008 and 2010. The mother sincerely believes it occurred and the father vehemently denies it.

2. By reason of the dispute, each party proposed fresh parenting orders concerning the child departing from those upon which they agreed in 2007 and 2008.

3. The mother proposed that the child continue to live with her and that the child’s relationship with the father be severed completely.

4. The father alternatively proposed that the child be removed from the mother’s care to live with him and that the child’s continuing relationship with the mother be controlled by a regime of permanent supervision.

5. The nature of the mother’s allegations against the father brought the matter squarely within the ambit of the Court’s Magellan protocol. The allegations of the father’s sexual abuse of the child were the only reason why the earlier parenting orders of the Court required revision, and the father’s fresh parenting proposal was implicitly a reaction to the allegations he found contemptuous.

Background

1. The parties met in about March 2000, began cohabitation in about June 2000, and finally separated some time in 2004 or early 2005.[1]

   [1] Father’s affidavit, pars 3-6; Mother’s affidavit, pars 8-9

2. Only one child was born to the parties’ relationship, namely C (“the child”), who was born in May 2003.[2] At the time of trial the child was aged 7 years.

   [2] Father’s affidavit, par 7

3. Each of the parties has older children from earlier relationships, and the mother has a younger child from another more recent relationship.[3]

   [3] Father’s affidavit, pars 8-9

4. After the parties’ separation the child remained living with the mother. Although there was some initial agreement about the time the child would spend with the father, by mid 2005 the father commenced proceedings to formalise those arrangements. Interim parenting orders were made providing for the child to spend time with the father during the day each Saturday.[4]

   [4] Father’s affidavit, pars 12-14

5. That litigation between the parties was concluded on 22 August 2007 when the Court made final parenting orders with the consent of the parties and the Independent Children’s Lawyer. Those orders made provision for:

   a)The parties to have equal shared parental responsibility for the child (Order 2).

   b)The child to live with the mother (Order 3).

   c)The child to spend time with the father each alternate weekend, for half of school holidays, and on other special occasions (Orders 4(b), 6, 7, 15), and to communicate with him by telephone at specific times (Order 13).

   d)Changeovers to occur at a nominated venue on the NSW Central Coast (Order 5), which is the area where both parties then lived.

   e)The child to attend a nominated school on the NSW Central Coast, unless the parties otherwise agreed in writing (Order 12).

6. The goodwill demonstrated by the parties’ agreement to those orders did not last long. The mother commenced fresh parenting proceedings before the Local Court of NSW several months later on 27 March 2008, but those proceedings were transferred to this Court and finalised on 23 July 2008. On that date an order was consensually made for the former orders made on 22 August 2007 to continue in force. Contrary to the father’s recollection, those proceedings were in 2008 and not 2009.[5]

   [5] Father’s affidavit, par 19

7. The mother was undoubtedly on notice about the need for her to diligently comply with the Court’s orders. She admits that the father commenced proceedings against her at one point for contravention of the orders, during which proceedings she was warned with an admonition that her contravention of the orders may cause the Court to change the child’s residence from her to the father.[6]

   [6] Mother’s affidavit, pars 11-12

8. After that time, allegations of the father’s sexual abuse of the child overtook the parenting orders.

9. In February 2009 the child made an allegation to the mother about her sexual abuse by the father. The allegation was reported to the NSW Department of Human Services (“the Department”), investigated by the NSW Joint Investigation Response Team (“JIRT”), and found wanting. The father was not prosecuted.

10. The child resumed spending time with the father.[7]

    [7] Mother’s affidavit, par 18; Father’s affidavit, pars 17-18

11. In November 2009 the mother relocated her residence with the child from the NSW Central Coast to Newcastle.[8] She has since kept her Newcastle address a secret from the father. The relocation required the child to change her school enrolment, which occurred without notice to, or the consent of, the father. The mother therefore breached the parenting orders made in August 2007.[9]

    [8] Father’s affidavit, par 20

    [9] Order 12 made on 22 August 2007

12. The child spent time with the father during the school holidays in January 2010.[10] The child was returned by the father to the mother on 17 January 2010 and that was the last time the child saw or spoke to the father.[11] The reason for that was another allegation made by the child to the mother about her sexual assault by the father.

    [10] Mother’s affidavit, par 19; Father’s affidavit, par 21

    [11] Father’s affidavit, pars 24-29

13. The mother again reported that allegation, this time directly to JIRT. The allegation was investigated over several months and again ultimately found wanting. The father was not prosecuted.

14. During the investigation in mid 2010 an allegation was made by the child and her half-siblings that the father had seen and spoken with the child at a public bus stop. The mother contacted JIRT about that allegation and police then applied for and secured an apprehended domestic violence order against the father in favour of the child.[12]

    [12] Father’s affidavit, pars 38-40

15. The mother commenced these current proceedings by filing her Initiating Application and Form 4 Notice of Child Abuse or Family Violence on 24 June 2010. The father filed his Response on 31 August 2010.

16. Due to the sexual assault allegations made by the mother the proceedings were designated under the Court’s Magellan protocol, which entailed the expedition of the litigation to final trial, commencing on Monday 31 January 2011.

Preliminary application

1. As already recited, the parties previously litigated their grievances concerning their child in proceedings before the Court during 2007. In those proceedings Mr Graham appeared as counsel for the Independent Children’s Lawyer. The current proceedings were commenced in 2010 and Mr Graham appeared at the trial on 31 January 2011 as counsel for the father.

2. The mother took exception to Mr Graham retaining the brief to appear for the father during the trial in view of his involvement in their previous parenting dispute as an advocate in a different capacity. Before the trial commenced the mother sought an order restraining Mr Graham from further appearance on behalf of the father.

3. Mr Graham sought advice on his predicament from the NSW Bar Association, which advice, he informed the Court, confirmed his belief that there was no impediment to his continued appearance for the father. Accordingly, Mr Graham declined to relinquish the brief. The parties then made submissions on the issue. The mother’s application for the injunction was dismissed, with reasons to follow, and the trial proceeded. These are those reasons.

4. The prior parenting proceedings between the parties before the Court were concluded by final orders made on 22 August 2007. Because those orders were made by the Court with the consent of the parties and the Independent Children’s Lawyer, neither party was then cross examined. The only material that then fell within the knowledge of Mr Graham, as counsel for the Independent Children’s Lawyer, was the filed documents that were relied upon by the parties, the contents of the single expert’s reports, and the documents produced on subpoena. That material was openly available to all parties and their legal representatives in those proceedings.

5. The only confidential information within the knowledge of Mr Graham was the instructions furnished to him by the Independent Children’s Lawyer, and even those instructions may not have been confidential by the time the litigation was concluded because by then Mr Graham had circulated amongst the parties a Case Outline document setting out the views of the Independent Children’s Lawyer.[13]

   [13] Exhibit A

6. Mr Graham was not seized of any instructions or information in which the mother enjoyed any legal professional privilege or any other form of confidentiality. When pressed, the mother could not identify how her interests were infringed by Mr Graham being permitted to now represent the father in the proceedings. Nor could the mother cite any authority to support her objection. In those circumstances, the mother’s application was dismissed.

Proposal and primary evidence of the mother

1. The mother began the trial pressing for the orders set out within her Initiating Application filed on 24 June 2010, which provided for the child to live with her and not spend any time or communicate in any way with the father. The mother did not seek any order in respect of parental responsibility.

2. By the time of final submissions, the mother proposed that the child should spend time with the father, albeit infrequently and subject to supervision. Clearly, the mother did not abandon her belief that the father had sexually abused the child, and she could not explain why such an unchanged belief would warrant a change of proposal when she had always considered that the proper outcome was a severance of the child’s relationship with the father. I impute that the altered proposal was an artifice, but nonetheless a concession by the mother that the child’s safety would not be compromised by spending time with the father under supervised conditions.

3. In support of her proposals the mother relied upon her affidavit filed on 20 January 2011, which was intended to elaborate the circumstances of the father’s alleged sexual abuse of the child, notified in the Form 4 Notice of Child Abuse or Family Violence filed by her on 24 June 2010.

Proposal and primary evidence of the father

1. The father pressed for the orders set out in his Response filed on 31 August 2010. The father’s proposal was essentially that the child live with him and only spend time with the mother for four hours each fortnight under supervised conditions. As with the mother, the father did not seek any order in respect of parental responsibility.

2. In support of his proposals the father relied upon:

   a)His affidavit filed on 21 January 2011.

   b)The affidavit of his current partner, Ms M, filed on 21 January 2011. Although that affidavit was filed in contravention of the Court’s procedural orders,[14] the father’s reliance upon it was not ultimately opposed by the mother.

   [14] Order 8 made on 13 December 2010

3. The father also sought to rely upon the single expert reports prepared by Dr N in the 2007 proceedings, but was not permitted to do so in the exercise of discretion under s 62G(8) of the Family Law Act 1975 (Cth) (“the Act”) in the face of objection by the mother. There were several reasons for that.

4. Firstly, the procedural orders made by the Court on 13 December 2010 did not contemplate the admission of such evidence at the trial and the application by the father to adduce it was made without notice to the mother and Independent Children’s Lawyer, who were taken by surprise.

1. Secondly, the single expert reports created in 2007 necessarily addressed issues which were the subject of contest between the parties in the those prior proceedings, which issues were compromised by the parties’ agreement to proper parenting orders for the child on 22 August 2007. Antecedent controversial issues therefore merged in that agreement, which was ratified by the Court’s orders on that date.

2. Thirdly, the opinions and recommendations of the single expert in 2007, formed well over three years ago, were overtaken by the opinions and recommendations of the single expert psychiatrist consensually appointed in the present proceedings. In the course of formulating her opinions and recommendations in November 2010 the current single expert had regard for the contents of the former single expert’s reports.

3. Fourthly, the former single expert’s evidence was not tested in cross examination in the former proceedings, which were settled, and she was not available for cross examination in the current proceedings.

Proposal of the independent Children’s Lawyer

1. The Independent Children’s Lawyer did not begin the trial with any settled proposal. By the conclusion of the trial the Independent Children’s Lawyer was still in a quandary about the parenting orders that would serve the child’s best interests.

2. The only thing of which the Independent Children’s Lawyer was certain was that the child was the subject of actual emotional abuse in the care of the mother and that the residence of the child should be shifted to the father, in one manner or another, since her residence with the father was likely to be less harmful for her.

3. The Independent Children’s Lawyer was uncertain whether the Court ought make interim orders, and if so, the duration of such orders, or alternatively final orders. Even if final orders were to be made, the Independent Children’s Lawyer was uncertain of the conditions which should attach to the proposed change of residence for the child. The Independent Children’s Lawyer did not tender any minute of proposed orders, presumably because of puzzlement over their formulation.

4. The Independent Children’s Lawyer relied upon the evidence of the single expert witness, Dr R, psychiatrist, whose evidence comprised the contents of her report dated 30 November 2010 and the evidence given by her in cross examination.

5. Additionally, the Independent Children’s Lawyer relied upon the contents of the Magellan Report dated 4 August 2010, which was prepared by the Department at the request of the Court pursuant to the Magellan protocol.[15]

   [15] Order 5 made on 29 June 2010

Evidence of the single expert witness

1. In her expert report the single expert recommended that the child continue to live with the mother and spend only supervised time with the father at a contact centre, provided the Court was satisfied there was a low probability the father had sexually abused the child.[16] Implicitly, the expert’s recommendation was that the relationship between the child and the father should be terminated if the Court concluded the father probably had sexually abused the child.

   [16] Single expert report, page 15 par 1

2. Those recommendations were formulated by the single expert by reference to her knowledge of the matter at the time her report was compiled on 30 November 2010. Following release of her report, the single expert was furnished with extra material by the Independent Children’s Lawyer, including the parties’ updated affidavits and documents produced on subpoena.

3. By reference to the updating material with which she was provided, and also matters put to her in cross examination, the single expert revised her opinions and recommendations. Her concerns about the mother were deepened and her concerns about the father were moderated, which made her increasingly uncomfortable about adherence to her original recommendations.

4. The single expert explained she had only made the recommendations set out within her report because of her view that there were no viable placement options for the child other than with the mother or father and at that time, in a choice between the parents, she thought the mother afforded a less detrimental alternative. The single expert was not satisfied with the child living with either parent and was disappointed with the decision by the Department not to intervene in the proceedings and provide another residential option in the form of a foster placement.

5. The single expert said it was “not impossible” for the child to now reside with the father, but that “there is still a long way to go” before she would recommend the father as the preferential residential option for the child.

6. It was obvious the single expert was gravely troubled by the recommendations she should ultimately make. During the course of cross examination, her evidence moved from cautious adherence to her original recommendations, to having no discernable preference between the parents as the primary carer for the child, to an acknowledgement that it may be timely to trial the child’s residence with the father to see whether that would produce a more stable lifestyle for her. The single expert’s equivocation is a graphic measure of the difficulties this case presents.

7. The single expert opined that it would only be possible for the child to live with the father if the child, the father and the father’s partner were monitored by an experienced “family support person” or “child and family worker”, as she described such a person, to assist in the child’s transition from residence with the mother to residence with the father. In her view, it was imperative that the father receive and accept professional assistance in the eventuality of a residential change for the child. The single expert was not satisfied that the father could handle such a task unassisted because of his lack of experience as a primary carer. The single expert foresaw a substantial amount of work in stabilising the child in the father’s household. In expectation of such assistance being available to the child and father, the single expert still only remained “hopeful” that the child would emotionally re-connect with the father.

8. No evidence was procured from the single expert as to the identity of the professional/s who could provide the support she envisaged the father needed. The single expert hypothesised that an employee of the Department might be able to liaise with the family, but the single expert was unaware of the availability of such personnel to render such assistance.

9. The Independent Children’s Lawyer inquired of the single expert whether it would be advisable for the Court to determine the matter by making final orders, or alternatively, to keep the litigation pending by making only interim orders to test the success of the child’s residence with the father. The single expert only saw merit in an interim parenting arrangement if the Department was willing to intervene, and conduct and furnish to the Court an assessment of the child’s placement with the father within a maximum period of 2-3 months. Absent such an eventuality, the single expert was firmly of the view that the interests of the child required immediate resolution of the litigation by final parenting orders. The single expert’s preference was for prompt finalisation of the proceedings.

10. Given that only a few months ago the Department notified the Court of its refusal to intervene in the proceedings and to only provide information of assistance to the Court,[17] the prospect of the Department reversing its decision about intervention in the litigation, conducting an expedient residential placement assessment, committing to the provision of the type of extensive professional assistance recommended by the single expert, or providing a foster placement presently seems remarkably remote.

    [17] Magellan report, page 4

11. In the single expert’s view, the sexual assault allegations were not an impediment to the child’s residence with the father. The single expert concluded that the father presented a low risk of abuse to the child. In her opinion, the dilemma created by the evidence was that the child would be deprived of a valuable relationship with her father if she remained living with the mother, which would be emotionally disturbing to her, but that the child would also be emotionally disturbed by a reversal of the long-standing residential regime in circumstances where there remained substantial concerns about the suitability of the father as a substitute primary carer.

The “magellan” allegations

1. This case was commenced by reason of the sexual allegations made by the child against the father in early 2010, which compounded the mother’s concerns about the earlier sexual allegations made by the child against the father in early 2009.

2. Although the mother professed in cross examination that her concerns about the father were not confined to the sexual allegations, and extended to his “drugs, alcohol, and lifestyle”, I do not accept that evidence. The mother’s solicitor informed the Court in December 2010, when the matter was fixed for hearing, that the mother took no issue with the father’s parenting capacity, save for its impingement by his sexual abuse of the child.[18] That representation is consistent with the mother telling the single expert in September 2010 that her only current concern was for the child’s safety because of her sexual assault by the father,[19] and her filing of a trial affidavit in January 2011 that is virtually devoid of any evidence other than that relating to the allegations of sexual abuse in early 2009 and early 2010.

   [18] Notation A made on 13 December 2010

   [19] Single expert report, page 2

3. The father has consistently denied the allegations against him. He maintained his denials to JIRT,[20] the single expert,[21] in his affidavit,[22] and during cross examination.

   [20] Magellan report, pages 2-3

   [21] Single expert report, pages 10 and 12

   [22] Father’s affidavit, pars 30-37

4. The mother conceded that her honest belief in the truth of the sexual assault allegations against the father rested on her acceptance of the truth of the child’s disclosures. It is common ground that the child’s allegations against the father were not corroborated by any other evidence. The child’s allegations therefore require careful scrutiny.

5. In February 2009, following some preceding conversation between the child and her half-sisters which evoked the interest of the mother and led her to question the child directly, the child reported to the mother that:[23]

   “…I hump things around the house. I hump the lounge, the pole, and I hump with my dad.”

   and

   “Dad asks me if I like it and I say no. Dad says to keep it a secret.”

   [23] Mother’s affidavit, par 13

6. The mother asked the child to demonstrate what she was explaining and produced a teddy bear for her to do so. The child obliged. In her distress, the mother then called her partner and the maternal grandparents, all of whom attended the home and quizzed the child both collectively and individually.[24]

   [24] Mother’s affidavit, pars 14-15

7. The child was then interviewed by JIRT on 26 February 2009 in respect of the allegations. The best evidence of the contents of that interview is contemporaneous notes kept by a JIRT officer, which are only a potted summary of the questions posed and answers given.[25] Unfortunately, there is no recording or transcript of the interview.

   [25] Exhibit ICL4

8. In the course of that interview the child generally alleged that:

   a)The father rubbed his “willy” on her, did a “wee” on her, used her hand to rub up and down his own legs, and “humped” her while lying beside or on top of her.

   b)Such conduct occurred in her bedroom when she slept over at his house, and when they went to a zoo.

   c)The father threatened she would have no more toys unless she was compliant.

9. The child’s allegations lack veracity for several reasons.

10. Firstly, the allegations are at least partially false. The child later admitted her fabrication of allegations to the mother, who reported the fabrication to JIRT.[26] The mother asserted in cross examination that the child’s admitted fabrication was confined to the allegation that the father had urinated on her at the zoo, but the JIRT documents record no such limitation on the extent of the fabrication. In addition, the child variously said that the sexual conduct had occurred 10 years before and 3 years before. At the time of her allegations in February 2009 the child had not even attained 6 years of age so, according to the history asserted by the child, either she was not even born or was so young that she would probably have no memory of such events.

    [26] Exhibit ICL1

11. Secondly, the allegations are inherently unreliable by reason of their nature. There was material inconsistency between the disclosures made by the child to the mother and JIRT. She told the mother the father wore his pants during such episodes of sexual impropriety, but she told JIRT the father wore no clothes. Moreover, the suggestion that the father sexually molested the child at such a public place as a zoo seems bizarre and highly improbable.

12. The mother said in cross examination she had taken the child to the zoo once before in the company of others, but the father had not been present with them. The father’s uncontradicted evidence was that he had not been to the zoo since he was a small child himself.[27]

    [27] Father’s affidavit, par 31

13. The father alleged the child told him she had been to the zoo in the company of the mother’s husband,[28] but the mother denied that was true in cross examination. If the mother’s evidence about that was correct then it necessarily means the child’s report to the father was false. The father later informed the mother the child had reported to his then partner that it was the mother’s husband, and not the father, who had sexually assaulted her.[29] The mother did not deny that the father had in fact so informed her.

    [28] Father’s affidavit, par 33; Single expert report, page 10 par 4

    [29] Father’s affidavit, pars 34-35; Single expert report, page 10 par 4

14. Perhaps revealingly, in response to a question about whether she had seen anyone else “hump”, the child told JIRT she had seen the mother and her boyfriend do so with no clothes on in the lounge room at her house one night when she asked whether she could go to the toilet. She had not seen the father “hump” with anyone else. The mother and father both conceded to JIRT that it was possible the child had been exposed to sexually explicit material or had witnessed sexualised behaviours.[30]

    [30] Magellan report, pages 2-3

15. JIRT concluded that the child’s allegations were unreliable and took no further action.[31] The mother was informed of that decision and the reason for it.[32] The child resumed spending time with the father, in all likelihood because the mother did not truly believe the father had sexually abused the child, as she said or implied to the single expert.[33]

    [31] Father’s affidavit, Annexure B; Magellan report, page 2

    [32] Mother’s affidavit, par 17

    [33] Single expert report, page 6 pars 3 and 5

16. In January 2010 the child made further sexual assault allegations against the father following her return to the mother after spending time with the father during school holidays. Again in response to loaded questioning by the mother about what the father might have done to her, the child told the mother:[34]

    “Dad pulls me on top of him and rubs me up and down. Dad unzips his jeans and takes off his underwear. Dad pulls my hand over his penis and rubs it up and down until puss comes out.”

    [34] Mother’s affidavit, pars 19-22

17. The mother alleged that the child later presented her with a drawing depicting her explanation,[35] but the drawing was not produced or tendered in evidence. Nor was any evidence adduced that the drawing was destroyed or lost.

    [35] Mother’s affidavit, par 22

18. On this occasion, the mother contacted JIRT directly about the allegations, and the child was again formally interviewed on numerous occasions – 5 February 2010,[36] 22 April 2010,[37] and 22 June 2010.[38]

    [36] Exhibit ICL3

    [37] Exhibit ICL2

    [38] Exhibit ICL5

19. By then the child was sufficiently mature to appreciate the distinction between truth and lies, and the impropriety of lying.[39] Notwithstanding, the child knew her initial interview with JIRT was arranged because “me and my dad done stuff that was gross”, which conduct the maternal grandmother expected her to discuss with JIRT.[40] Similarly, in her second interview, the child revealed that the mother told her she was being interviewed to discuss what the father had done to her.[41] The child was therefore well aware of the expectation of the maternal family that she would make serious allegations against the father.

    [39] Exhibit ICL3, Q.40-47; Exhibit ICL2, Q.28-32; Exhibit ICL5

    [40] Exhibit ICL3, Q.75-80

    [41] Exhibit ICL2, Q.211-216

20. The general nature of the child’s new allegations was that, whilst she was at the father’s home, the father masturbated by manipulating her hands upon his penis, and on another occasion the father rubbed his penis against her vulva whilst they were both clothed.

21. Again, the child’s allegations are unreliable. For example, the child said:

    a)Alternately, that the “gross stuff” had occurred with the father the week before, or that she could not remember when it had last occurred. By the time of her first interview the child had not seen the father for several weeks.

    b)She did not know the anatomical name for the father’s “private part”, despite the mother’s allegation that the child called it a “penis” when the allegation was first revealed to the mother.

    c)She saw “puss” ejaculated from the father’s penis which was coloured white, orange, and yellow.

    d)The ejaculation occurred before the father’s penis became “hard”, not afterwards.

    e)There was a single drop of the white puss, about a cupful of the yellow puss, and about half a cupful of the orange puss.

    f)After ejaculation, the yellow and orange puss then went back into the father’s penis.

    g)The father was wearing jeans when her hands were used to masturbate the father,[42] which were zipped down exposing his penis.[43] However, in her second interview the child said that the father was wearing tracksuit pants at the time of that incident.[44]

    h)The father remained clothed during the rubbing incident, although his jeans were zipped down.[45] However, at the time of her initial report to the mother the child said the father unzipped his jeans and removed his underwear.

    i)The father said nothing to the child at the time of the masturbation incident[46] or the rubbing incident.[47] However, in her second interview the child said that the father told her not to tell anyone about the masturbation incident.[48]

    j)The masturbation and rubbing incidents were the only two sexual episodes that had occurred with the father.[49] However, in her second interview the child said that there were other occasions, but she could not remember the details.[50]

    [42] Exhibit ICL3, Q.144-145

    [43] Exhibit ICL3, Q.153

    [44] Exhibit ICL2, Q.118-134

    [45] Exhibit ICL3, Q.258-266

    [46] Exhibit ICL3, Q.209-213

    [47] Exhibit ICL3, Q.294-298

    [48] Exhibit ICL2, Q.160-169

    [49] Exhibit ICL3, Q.451-453

    [50] Exhibit ICL2, Q.199-205

22. The child’s third interview with JIRT was hastily arranged because of an allegation that the child and her half-sisters had seen the father at a bus stop the morning before, being 21 June 2010.[51] The child reported that the father said “Hi” to her, but otherwise neither she nor the father spoke to one another.

    [51] Exhibits ICL5, ICL9

23. As a consequence of that report, police applied for an apprehended violence order against the father for the protection of the child.[52] The apprehended violence order was made against the father on 17 August 2010 for a period of 5 years in the father’s absence.[53]

    [52] Mother’s affidavit, par 24

    [53] Father’s affidavit, pars 38-40

1. The father did not consent to the making of the apprehended violence order because he flatly denies seeing the child and her half-sisters at the bus stop in Newcastle on 21 June 2010 as alleged. The father was then, as he is now, living and working on the Central Coast. He had no reason to be in Newcastle. Even if he was in Newcastle to reconnoitre the child and her new home, as the mother seems to suspect, it is highly improbable that having successfully found the child he so desperately sought he would simply say “Hi” and then board a bus and depart without another word.

2. The father’s denial of the incident is corroborated by letters from his work colleagues, who account for his presence with them on the NSW Central Coast that day from 9.30 am onwards. It is highly improbable that the father could have been in Newcastle at or about the time the child was catching a bus to school and then be on the Central Coast by 9.30 am the same morning.

3. The child and her half-sisters were well aware, from comments made beforehand by the mother, that the father could try and abduct the child.[54] The mother said in cross examination the very reason for her relocation with the child from the Central Coast to Newcastle was to avoid the child being abducted by the father. The children were therefore apprehensive of such an eventuality, even though the child had not seen or spoken to the father for many months and they had secretly moved from the Central Coast to Newcastle. The most likely explanation for the incident is that the child and her half-sisters convinced themselves they saw the father when in fact they were mistaken. The father had not been seen by the child for some 6 months, and by the half-sisters for even longer. The man they saw was wearing sunglasses and the children’s reports to JIRT manifest their initial uncertainty about whether the man they saw was the father.

   [54] Exhibit ICL9

4. In July 2010 the child was subjected to a physical examination by a paediatrician, the only logical purpose for which was to determine whether the child might have been injured or penetrated during the alleged sexual molestation. Why such an examination was thought to be appropriate is a mystery, given the child had said and done nothing to suggest she had been disrobed or penetrated at any time in the past. Unsurprisingly, the child was found to have no genital abnormality.[55]

   [55] Single expert report, page 6 par 5

5. JIRT formally notified the Court that its most recent investigation is complete. The father will not be prosecuted because there is insufficient evidence to support a prosecution.[56] Even though the mother believed that the investigation was still open,[57] she is now aware of its closure.

   [56] Exhibit F2

   [57] Mother’s affidavit, par 23

6. The mother said in cross examination that she genuinely believed in the child’s sexual allegations against the father, and that she would always do so unless told differently by the child. The mother was not re-assured by the thoroughness of the JIRT investigation and the independent determination that the child’s credibility was deficient. The mother tellingly admitted that if the child told her she had fabricated the allegations then the situation would be different and there would be no reason why the child would not be spending time with the father. Paradoxically, despite the fact the child did tell the mother that at least some of the first allegations against the father were fabrications, the mother still alleged her honest belief in the child’s sexual allegations against the father. The mother was unmoved by the illogicality of the allegations about the ejaculation of different coloured “puss” from the father’s penis, the re-absorption of the “puss” through his penis, or any of the other inconsistencies in the child’s allegations. Curiously, the mother said in cross examination that “if she [the child] was lying it would probably help her [the child] to keep lying”.

7. The single expert was dismissive of the child’s allegations of sexual assault by the father, which she regarded as unreliable. Because of the graphic nature of the disclosures by the child, the single expert thought it highly probable that the child had been the victim of some form of sexual abuse. However, she thought it quite improbable that the father was the perpetrator. By reference to the evidence, the mother’s estranged husband was plausibly the perpetrator, but it would be impermissibly speculative to go further than merely indicate the existence of alternatives other than the father.

8. The father alleged, without contradiction, that the child admitted the perpetrator was the mother’s estranged husband rather than him. Even the mother admitted to the single expert that her estranged husband regarded the child as “the favourite [child]” even though she was not his biological child.[58] Despite the mother saying in cross examination that she separated from her husband following an incident on holidays in early 2008, she told the single expert she did not separate from her husband until the end of 2008,[59] which was just prior to the revelation of the first sexual assault allegations in February 2009. Notably, at that point in time the child was prone to tantrums and developed urinary incontinence, which has persisted.[60]

   [58] Single expert report, page 3 par 6

   [59] Single expert report, page 8 par 6

   [60] Single expert report, pages 2 par 3, 8 par 6; Father’s affidavit, par 56

9. The single expert opined that the child’s attribution of the abuse to the father was a product of the child being subjected to unremitting denigration of, and negativity about, the father within the mother’s household, for which the mother and maternal grandmother were primarily responsible. The single expert explained the known phenomenon of children falsely nominating a parent as an abuser in situations of intense parental conflict, as exists in this case. The single expert said that, as long ago as the 2007 litigation, the mother reported to the former single expert that she suspected the father of sexually abusing her other daughters,[61] for which there was apparently no objectively verifiable basis. Virulent suspicions about the father’s sexual propriety have therefore permeated the mother’s household for years. The child has been exposed to that climate of apprehension. The single expert considered it was possible the mother had deliberately influenced the child to make sexual abuse allegations against the father, but rather, it was highly probable a case of her unconsciously influencing the child.[62]

   [61] Single expert report, page 13 par 4

   [62] Single expert report, page 14 par 3

10. Written statements made by the mother[63] and maternal grandmother[64] to the police on 7 June 2010 reveal they have indulged in a series of conversations with the child over a long period of time in which leading questions have been posed to the child about the sexual danger to which she has been exposed by the father. The maternal grandmother also directly admitted as much to the single expert.[65] The single expert opined that such conversations would certainly have increased the pressure on the child to nominate the father as a perpetrator of sexual abuse. The versions of the child’s disclosures set out within those written police statements differ markedly from the evidence adduced by the mother in her affidavit, which suggests that the actual disclosures made by the child over time have evolved and distorted.

    [63] Exhibit ICL8

    [64] Exhibit ICL7

    [65] Single expert report, page 5 par 2

11. The single expert was also intrigued by the fact the mother had apparently told an officer of the Department during a home visit on 28 August 2009 that the child had earlier reported to her that the father had “made her masturbate him and there was yellow stuff”.[66] The single expert regarded that as significant when considering the veracity of the sexual abuse allegations because, on the mother’s evidence, the child made no disclosure of her masturbating the father or the existence of ejaculate of any colour until at least January 2010.

    [66] Exhibit ICL11

12. I accept the conclusions of the single expert about the sexual abuse allegations, which conclusions were not seriously challenged. Her opinions are consistent with the factual anomalies apparent from the evidence. The conclusion is inescapable that the child’s sexual allegations against the father are unreliable. I am not satisfied the father perpetrated sexual abuse upon the child, or that he poses an unacceptable risk of sexual abuse to the child.

Summary of parenting law

1. Orders in respect of children are regulated under Part VII of the Act, in which the meaning of a “parenting order” is defined (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

5. However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.

6. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).

7. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

8. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Child’s best interests – primary considerations

Section 60CC(2)(a)

1. The child has a meaningful relationship with the mother, who has been her primary carer since birth. It would benefit the child to retain that relationship.

2. The child formerly enjoyed a meaningful relationship with the father, but the relationship has deteriorated to some degree. That is probably unsurprising given the severance of the relationship in January 2010 and the constant climate of negativity about the father to which she is exposed within the maternal family.

3. When the child consulted with the single expert during the 2007 litigation the child was positive about the father,[67] but by the time the child consulted with the single expert in the current litigation in September 2010 she was equivocal about him. The child professed being “pretty scared” about the prospect of seeing the father in an observation session the following day, was unsure about whether she wanted to go the father’s home, and proposed in a hypothetical situation that the father should live in a house where she never saw him again.[68] On the other hand, she acknowledged that it would be “nice to see him”, that he was a good cook, and he gave “nice kisses and cuddles and tickles”.[69]

   [67] Single expert report, page 13 par 6

   [68] Single expert report pages 3-4

   [69] Single expert report, page 4 par 5

4. The child’s equivocation only serves to demonstrate she has not rejected the father, despite the heinous nature of the allegations she has made against him. The child is understandably coy about openly stating or demonstrating her desire for a relationship with the father because she is aware that such sentiment would be repugnant to the wishes of the mother and maternal family members, upon whom she is primarily dependent. She may even be apprehensive of the father’s possible retributive or disciplinary reaction towards her on their reunion in their mutual knowledge that her allegations of sexual assault against him were false.

5. The child would benefit from rejuvenation of her deteriorated relationship with the father if restoration of the relationship was uncomplicated, but unfortunately it is complicated. For reasons later explained, the mother will not likely willingly support that relationship, and may even deliberately work to destroy it. In those circumstances, the child will not presently derive benefit from attempts to restore her relationship with the father and there may even be deleterious consequences in attempting a restoration.

Section 60CC(2)(b)

1. For reasons already explained, the child is not at unacceptable risk of physical or psychological harm from subjection or exposure to sexual abuse by the father.

2. Neither party has submitted that the child is at risk of any physical or psychological harm from subjection or exposure by the other party to any physical abuse, neglect or family violence.

3. The father adduced some evidence that was generally critical of the mother’s parenting capacity, which implied the child was at risk of harm with the mother, but I pay it no heed for several reasons. The mother was not asked about it in cross examination, most of the allegations relate to incidents that pre-date the parenting orders to which the father agreed in 2007 and 2008, none of the more recent incidents were sufficient to convince the father he needed to commence fresh proceedings to seek amended orders for the protection of the child, and no mention was made of the evidence in final submissions.

Child’s best interests – additional considerations

Section 60CC(3)(a)

1. The child did not express any views about her parenting arrangements, but for those remarks which have already been the subject of comment under s 60CC(2)(a).

2. Even if the child had expressed views, no weight would be reposed in them. Firstly, she is too young to take full responsibility for her expressed opinions. Secondly, it is known that she is prone to fabrication. Thirdly, it is likely that her representations are influenced by her perceptions of the views of the mother and members of the maternal family.

Section 60CC(3)(b)

1. The nature of the child’s relationships with each of the parties is addressed under s 60CC(2)(a). There is nothing to add.

2. The child also has a meaningful relationship with the maternal grandparents, with whom the mother regularly associates. In a hypothetical posed by the single expert, the child rated the maternal grandparents and her half-siblings as more important than even the mother.[70]

   [70] Single expert report, page 4 par 7

3. The child has no relationship at all with any members of the paternal family, or with the father’s present partner. The paternal grandparents are deceased and the father does not stay in touch with any of his siblings other than a brother. The father said in cross examination that the child last met that brother, and inferentially any members of his family, some 5 years ago when she was a toddler. The child has not met the father’s current partner at all.

4. Those are very important considerations in the context of this case.

Sections 60CC(3)(c) and 60CC(4)

1. Another very important consideration in this case is the mother’s unwillingness to facilitate and encourage any relationship between the child and the father, let alone a close and continuing one.

2. The single expert believed the mother opposed the relationship between the child and father from long before the sexual assault allegations were made against the father in 2009 and 2010. That opinion was not controversial because the mother admitted in cross examination it has been her opinion since 2007 that the child should have “no contact” with the father. Her conduct has mirrored her sentiment.

3. The single expert in the 2007 litigation concluded that the mother would not likely comply with orders promoting the relationship between the child and the father.[71] Barely months after the parenting orders were agreed in August 2007, the mother commenced fresh proceedings in 2008 to review the orders. Shortly after that, the father was compelled to bring contravention proceedings against the mother because of her failure to comply with the orders. Thereafter, the sexual assault allegations were made against the father in February 2009 and January 2010. Since then the mother has severed the relationship between the child and father and refused the father’s proposals for the child to spend even supervised time with him.[72]

   [71] Single expert report, page 13 par 4

   [72] Exhibit F1; Father’s affidavit, Annexure F

4. By the time the single expert saw the parties and child in September 2010, the child had not seen or spoken with the father for some eight months. Although the child was reluctantly willing to see the father in an observation session with the single expert, the child reversed her decision and refused to do so in the face of overt pressure to reject the idea by both the mother and maternal grandmother.[73] The child’s final refusal followed the mother’s exhortation for her to tell the single expert what she “really” wanted with respect to the proposed observation session with the father.[74]

   [73] Single expert report, pages 4-5

   [74] Single expert report, page 5 par 3

5. The attitudes of the mother and maternal grandmother are not the only influences in the child’s life which are adverse to the father. Her half-sisters are aware of the allegations of sexual abuse against the father, and also aware of the antipathy of the maternal family towards him. When they believed they saw the father at the bus stop in Newcastle in June 2010 they acted protectively towards the child in the belief the child was in danger in his presence.

6. The child calls the mother’s estranged husband “Dad” in preference to the father,[75] even though that man has not been a part of the family’s life for over two years. The child would not have called someone other than her own biological father “Dad” without direction or tacit approval to do so. The single expert opined that such a development would exacerbate any estrangement between the child and father.

   [75] Single expert report, page 3 par 5; Father’s affidavit, par 63

7. When the mother enrolled the child to attend school she completed an enrolment form which comprised space for disclosure of both maternal and paternal details for the child. The mother conceded that she intentionally left blank the paternal details of the child on the enrolment form. When asked why, the mother replied that she was “psychologically not happy with the father” and that she did not have a “reasonable excuse”.

1. Those examples demonstrate that the mother’s preference is to expunge the father from the child’s life.

2. The mother told the single expert that, in the event orders were made providing for the child to see the father, she would “probably move away”.[76] The mother admitted in cross examination she said that, but disavowed she would actually do so. Her disavowal was far from convincing.

   [76] Single expert report, page 7 par 3

3. The mother’s opposition to the relationship between the child and the father is all the harder to understand in the face of her concession in cross examination that the child does enjoy seeing the father and has a strong recollection of the time she spent with him before January 2010.

4. The blunt opinion of the single expert was that the mother would not support the child spending time with the father without supervision.[77] In cross examination the single expert said the mother would not likely comply with any order unless it was one that suited her. The mother had no faith in the Court[78] or in social mores. The single expert concluded that the mother’s sociopathic tendencies are compounded by the maternal grandmother’s support for her approach.

   [77] Single expert report, page 14 par 4

   [78] Single expert report, page 6 par 3

5. The single expert’s belief that the child will experience inordinate difficulty in enjoying any relationship with the father whilst she continues to live with the mother is a factor that would ordinarily inform a change in the child’s residence. However, the repercussions of such a change in the child’s circumstances are a countervailing consideration to which it is now necessary to turn.

Section 60CC(3)(d)

1. The parties, Independent Children’s Lawyer, and single expert all agreed that it would be a seismic change for the child to move from her present residence with the mother and live with the father.

2. The child has lived with the mother and her half-siblings all of her life. She is most likely primarily attached to the mother and values her relationships with the maternal grandparents and half-siblings very highly.

3. By contrast, her history of interaction with the father has been punctuated by interruptions. The father was in prison when the child was born in 2003. Upon his release, he lived with the mother and child until final separation in late 2004 or early 2005. During 2005 the father spent more time in prison and was confined to his residence under a home detention order. During the first half of 2009 the father served six months periodic detention[79] and admitted only having telephone communication with the child over that period. Since January 2010 the child has spent no time with the father and had no communication with him.

   [79] Exhibit ICL10; Father’s affidavit, par 17

4. Despite that history, the father proposed that the child immediately move to live with him and that her interaction with the mother, half-siblings, and maternal family members be severely curtailed.

5. The residential circumstances the father was able to offer the child were far from ideal for many reasons.

6. When he consulted the single expert, the father’s proposals were different from those he presented at trial. Formerly, the father had no concrete plans for the child’s residence with him. He was then living alone in a hotel. He had no social or professional supports, was isolated in the community, and wished to be left alone. He proposed that he “might” call upon his older sister for residential help.[80] It was revealed during his cross examination that the father has had no relationship with that sister or any of his other siblings, bar one brother, for many years. In cross examination the single expert said the father’s comparative isolation was a significant factor influencing her recommendation that the child continue to live with the mother.

   [80] Single expert report, pages 12 par 3, 14 par 7

7. The father formed a de facto relationship less than three months ago. He and his partner now live in what was described as a two bedroom caravan on the Central Coast. The child has not met the father’s partner. The father proposes that the child will live with him and his partner. It is envisaged that they will need larger accommodation, but the father has not yet located any satisfactory alternate residence. The father and his partner intend to continue residing on the Central Coast. The father expects the child will have to leave her present school and re-enrol at a public school in proximity to wherever he is able to find suitable rental accommodation on the Central Coast.[81] The father conceded there was no reason to prevent his relocation to Newcastle so that the child could remain at her current school, but he was resistant to that idea and would only resort to that option if he was ordered to do so by the Court. Accordingly, if the father has his way, the child would even be denied any modicum of stability she enjoys through her friendship network at school.

   [81] Father’s affidavit, pars 90-93

8. The father has never fulfilled the role of primary carer for any of his children. His two sons born to a former marriage, who are now teenagers, went to live with their maternal grandparents upon the untimely death of their mother in 2001, where they have remained living ever since. The father did not fill the parenting void left by his deceased estranged wife. The father explained that his sons live in Sydney and that he sees them periodically by travelling to Sydney to see them during daylight hours. He does not spend overnight time with them in Sydney, and they have never spent overnight time with the father at his home.[82]

   [82] Father’s affidavit, pars 83-86

9. The father is employed casually, which entails about three days work each week on average. He proposes that his partner will be the carer for the child whilst he is at work.

10. The father’s partner has endured parenting difficulties of her own. She is a reforming alcoholic who has also suffered addiction to, or dependence upon, illicit drugs. She has three children of her own, none of whom live with her. The two eldest children are adults. Her youngest child is aged 17 years and lives with her boyfriend in Queensland, where she attends school and works part-time. She conceded in cross examination that such an arrangement is not ideal, but asserted that she and her children are “survivors”. The father’s partner acknowledges that she will have permanent problems with drugs and alcohol, and that remaining abstinent is the hardest thing she has ever done in her life.

11. I am quite satisfied about the integrity of the father’s partner. She presented an honest and open account of her problems, which remain ever-present. She admitted suffering relapses in her rehabilitation. The professional support she solicited to overcome her insobriety and drug dependency is situated in Queensland.[83] She has not yet sought out such professional support on the NSW Central Coast since moving down from Queensland to live with the father in the last couple of months.

    [83] Affidavit of Ms M, pars 7-10

12. The problems confronted by the father’s partner hindered her ability to provide a constant, stable home for her own children, or at least her youngest child. In all probability her hands will be quite full in coping with her move to NSW, her new relationship with the father, and management of her own health. It would likely be a challenge, and an unrealistic expectation, for her to take on a substantial parenting role for a child aged 7 years whom she has never met.

13. The father said that he would accept professional assistance in smoothing the child’s transition from the mother’s home to his own. The single expert believed the father would accept such assistance because he was concerned about the child and genuinely desired her protection. I accept that assessment of the father as accurate. The father adduced evidence about some of the programs about which he has made inquiries, but provided little detail about how those programs would achieve the objective of alleviating the stress the child would undoubtedly suffer.[84]

    [84] Father’s affidavit, par 96

14. The difficulties that would certainly be experienced by the child in changing her residence are important considerations and counter-balance the inclination to change the child’s residence because of the mother’s staunch refusal to support the child’s relationship with the father.

Section 60CC(3)(e)

1. Given the location of the parties’ residences within reasonable proximity in Newcastle and on the NSW Central Coast respectively, there will be no practical difficulty or expense incurred in implementation of the orders.

Section 60CC(3)(f)

1. The parties both have the capacity to provide for the child’s physical and intellectual needs.

2. The mother does not have the capacity to provide for the child’s emotional needs because of her deprivation of the child’s relationship with the father. The child probably yearns for a meaningful relationship with the father, but realises that she is unable to have it while living with the mother.

3. The father’s capacity to provide for the child’s emotional needs is also impaired. The father has shortcomings as a role model for the child,[85] and is relatively disengaged from his family and community, compromising his social adjustment. He is unable to impart the child with social skills he lacks.

   [85] Single expert report, page 14 par 6

Section 60CC(3)(g)

1. The mother alleged her continuing concern about the father’s “drugs, alcohol, and lifestyle”, but she adduced no evidence and made no submissions to vindicate her concerns.

2. The father denied he now uses illicit drugs or alcohol abusively, and he was not contradicted. I accept his evidence.

3. As previously mentioned, the father adduced evidence of his concerns about aspects of the mother’s lifestyle, but similarly, nothing was made of that evidence and no submission was ultimately made about it.

Section 60CC(3)(h)

1. The father identifies himself and the child as Indigenous Australian. The mother does not dispute that identification. The mother also identifies some of her other children as Indigenous Australian and she was not challenged about that either.

2. Despite that identification, there is a paucity of evidence about its cultural significance for the child. The father asserted that he intends to teach the child about Aboriginal culture,[86] but there is no evidence of that happening in the past. The orders make provision for the child to spend time with the father intermittently, so the child will not be deprived of the opportunity to learn about Aboriginal culture from the father if he is inclined to teach her.

   [86] Father’s affidavit, par 82

3. Without contradiction, the Independent Children’s Lawyer described the issue of Aboriginal heritage as a “side issue” in this case. That was how it was treated by the parties, in which case it is not for the Court to develop it as an issue.

Sections 60CC(3)(i) and section 60CC (4)

1. The mother does not demonstrate a proper attitude to the child or the responsibilities of parenthood for the reasons explained under ss 60CC(3)(c) and 60CC(3)(f). There is no need to elaborate.

2. The father lacks insight and perception about the responsibilities of parenthood, which he exhibits by his naïve belief that the child will adjust reasonably swiftly to the hugely significant residential change he proposes for her,[87] and his expectation that the child will need to adapt to his lifestyle rather than him make structural changes to accommodate her. Otherwise, the evidence suggests the father demonstrates a proper attitude to the child.

   [87] Single expert report, page 12 par 4

Section 60CC(3)(j)

1. Neither party makes allegations of family violence against the other.

2. The Form 4 Notice of Child Abuse or Family Violence filed by the mother at the commencement of the proceedings was silent about any allegation of family violence.

Section 60CC(3)(k)

1. There is no family violence order in existence between the parties.

2. There is a current family violence order as between the child and the father, arising out of the allegation that the father saw and spoke to the child at a bus stop in Newcastle in June 2010 whilst the father was being investigated for the alleged sexual assault of the child.[88] The order is current to 17 August 2015.

   [88] Father’s affidavit, Annexure C

3. One part of that family violence order is inconsistent with the child being able to maintain any relationship with the father. Paragraph 7 of the family violence order provides as follows:

   “The defendant must not approach or contact the protected person(s) by any means whatsoever except through the defendant’s legal representative”

4. The “defendant” is of course the father.

5. The “protected person” is the child. However, although the order was made for the protection of the child, by virtue of her domestic relationship with the mother, the mother is also a “protected person” under the order pursuant to the applicable legislation (see ss 5(d), 5(g), and 36 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)).

6. The family violence order precludes the child from spending time with the father. It also precludes any communication between them, other than through the father’s legal representative.

7. Similarly, the family violence order precludes the father from contacting the mother for any purpose, other than through his legal representative.

8. The literal terms of the family violence order are untenable in the face of the proper parenting orders that the Court should make. The orders made by the Court specify the inconsistency with the family violence order and explain how those parenting orders will operate, as required by s 68P(2)(a),(b) of the Act.

9. The child and the parents are all privy to the family violence order, and these proceedings. The following explanation is given to the parties pursuant to the Court’s obligations under s 68P(2)(c),(d) of the Act:

   a)The parenting orders are inconsistent with paragraph 7 of the family violence order because they require the mother and father to contact one another, and for the child and father to approach and contact one another.

   b)It is necessary to make parenting orders which are inconsistent with paragraph 7 of the family violence order in order to promote the child’s best interests.

   c)The child’s best interests are promoted by her spending some time and communicating with the father. The parenting orders set out how that is to occur.

   d)To ensure the parenting orders are implemented satisfactorily it is necessary that the mother and father contact one another to keep each other informed of their respective contact details.

   e)The parenting orders do not require breach of paragraphs 1(a), 1(b), or 1(c) of the family violence order, which paragraphs are consistent with the parenting orders. The parenting orders and those paragraphs of the family violence order may be consistently obeyed.

   f)Contravention of the family violence order will be dealt with by prosecution in the Local Court of NSW.

   g)Contravention of the parenting orders will be dealt with under the terms of the Act.

Section 60CC(3)(l)

1. Orders which require the child to change residence and substantially curtail her interaction with the mother, her half-siblings, and maternal grandparents will likely be problematic and stimulate further proceedings.

2. Orders that require the child to remain living with the mother but resume spending substantial and significant time with the father are probably bound to fail in the face of the mother’s intransigence. That regime existed under the consensual orders made in 2007 and 2008, but failed miserably.

3. The most likely way of avoiding further parenting proceedings is to ensure that the child remains living with the mother. The prospect of further litigation is unlikely to increase irrespective of whether orders are made terminating or preserving the child’s relationship with the father in a minimalist way.

Section 60CC(3)(m)

1. There is no other fact or circumstance that the parties or Independent Children’s Lawyer submitted was relevant to the outcome of the proceedings.

Parenting orders

1. Although the presumption of equal shared parental responsibility is the starting point for consideration of any parenting orders, the issue of parental responsibility was not the subject of any submission or proposed order by either party or the Independent Children’s Lawyer.

2. When parenting orders were previously made between the parties on 22 August 2007 they agreed they should have equal shared parental responsibility for the child.[89] When the parties had the chance to review those orders on 23 July 2008 they chose to retain the existing orders.[90] There was no change to the allocation of parental responsibility for the child.

   [89] Order 2

   [90] Order 1.2

3. No finding has been made about the occurrence of child abuse or family violence, so the presumption of equal shared parental responsibility is not displaced (s 61DA(2)). The presumption therefore applies, unless the evidence leads to a conclusion that the child’s best interests demand rebuttal of the presumption (s 61DA(4)).

4. I am satisfied that the best interests of the child do demand rebuttal of the presumption of equal shared parental responsibility, even though the issue was not addressed in submissions or in the evidence of the single expert.

5. The parties now have a highly conflicted relationship. The mother secretly relocated with the child away from the father, who remains ignorant of her current residential address. They have not corresponded for well over a year about any aspect of the child’s care, welfare or development. Their poisonous relationship simply does not permit a co-operative approach to the major long-term issues that will arise in the child’s life. Requiring either of them to engage the other in rational, detached dialogue about the child’s best interests is fraught with the risk of unrestrained controversy.

6. Parental responsibility for the child should be allocated solely to one parent, and that determination is bound up with the determination about the child’s residential arrangements.

7. In accordance with the evidence of the single expert, the mother and father both expressed a preference for the Court to make final parenting orders. I concur that the litigation should be concluded with final orders. I do not accept the proposal of the Independent Children’s Lawyer to make interim orders for a period of time, the reason for which proposal was unclear and unpersuasive.

8. It is not in the best interests of the child to live with each party for equal time. The parties could not ensure that such a residential arrangement worked seamlessly for the child. In any event, such an outcome is impracticable because of the parties’ desire to continue living in the same areas as they currently do, which would effectively preclude the child from attending one school while living between both households. The parties and Independent Children’s Lawyer recognise those limitations. None of them proposed such an outcome.

9. It is inevitable that the child should live primarily with one party. The most influential factors in the determination about with whom the child should primarily live are the child’s closer attachment to the members of the maternal family, the moderate deterioration in the child’s relationship with the father, the enormity of the effect upon the child of a change in residence and the difficulties which would confront her re-adjustment in the father’s household, and the mother’s unwillingness to promote the child’s relationship with the father. There is an underlying tension between the last of those factors and the others, but having weighed them carefully I conclude that the child’s best interests are served by her continuing to live with the mother and by the mother having sole parental responsibility for her.

10. Tellingly, the father conceded to the single expert that he wanted his relationship with the child to “go back to how it was and to have no problems with [the mother]”[91] – in other words, to revert to the arrangement of the child living with the mother and spending time with him on alternate weekends and during school holidays. The father has not pursued the child’s residence with the alacrity that one might expect in the circumstances, suggesting that he is more content with a parenting regime under which the child spent substantial and significant time with him. When the mother unilaterally severed the relationship between the child and the father in January 2010 the father took no action to enforce the existing parenting orders, or even to seek amended parenting orders while the sexual abuse allegations were investigated. It was the mother who commenced the current proceedings in June 2010. The father only responded with a proposal in August 2010 when he was drawn into the litigation. I am ultimately persuaded that the father is wedded to the idea, but not the practicality, of the child living with him.

    [91] Single expert report, page 12 par 3

1. The Independent Children’s Lawyer, with the support of the father, submitted that the child’s residential placement with an untested option in the form of the father was a better alternative than the retention of her proven poor placement with the mother. I reject that submission. There are simply too many contingencies about the child’s placement with the father, which is presumably why the Independent Children’s Lawyer did not express unqualified confidence in a change of the child’s residence. The proposal was based on a theory that the father should be tried to see whether he could provide a more emotionally stable environment for the child. Even though the father professed confidence in himself as a residential carer for the child, his confidence was uncorroborated. The corollary of adopting the residential proposal of the father and Independent Children’s Lawyer is that if the change of the child’s residence to the father proved unsuccessful the child will have endured another serious interruption to her stability for no reason but a trial. Albeit that the Independent Children’s Lawyer expressed a preference in the “odds” of the father over those of the mother in providing an emotionally stable environment for the child, I am not inclined to gamble on the child’s best interests.

2. The mother submitted that the child should not live with the father because it would be traumatic for her to be forced to live with the person whom she believed had sexually abused her. I reject that submission. There is no evidential basis for it. There is no evidence that the child genuinely believes the father sexually abused her. The parties do not possess any expertise to proffer any opinion about the honesty of the child’s beliefs, particularly in the face of her admitted fabrications. The only witness seized of sufficient expertise or experience to offer a reliable opinion on that issue is the single expert, and she denied any insight when asked a direct question about the issue. She agreed the child “might” already have an embedded false memory that the father sexually abused her, but she warned that was mere supposition.

3. The mother also submitted that it was very important for the child to know that her grave complaints against the father are believed and acted upon, otherwise the child may feel abandoned and isolated, and for that reason the child must live with the mother. The single expert agreed with that proposition in cross examination, but cautioned that children also need reality checks and should be assisted to dispense with false allegations. In the event of realisation by the child that her sexual assault allegations against the father are false then it is unlikely she will be emotionally impaired by rejection of the allegations by authorities. Conversely, if the child does harbour a genuine belief in the sexual abuse allegations against the father, then the emotional disturbance which will result from that belief is unlikely to be significantly compounded by any order that requires her to continue living with the mother and to see the father under controlled conditions.

4. Having concluded that the child should live with the mother, the next issue to be addressed is whether the child retains any relationship with the father, and if so, the manner in which that is achieved.

5. It is clear that, because of the mother’s intransigent opposition to any relationship between the child and the father, it would be futile to make orders in the nature of those agreed in 2007 and 2008 under which the child spent substantial and significant unsupervised time with the father. That regime failed abysmally and there is no realistic prospect of its resurrection in light of the mother’s attitude. That is a great shame because the child will be deprived of a valuable relationship with the father for no other reason than the mother’s recalcitrance.

6. The single expert said in cross examination that the unwillingness of the mother to support any relationship between the child and the father was the reason for her initial recommendation that the child spend only restricted, supervised time with the father – not because of a concern that the father posed any risk of harm to the child.

7. In final submissions the mother conceded that she would consent to the child spending time with the father, on condition that it was indefinitely supervised. That concession is consistent with the initial recommendation of the single expert and opens the way for the imposition of such an arrangement.

8. The imposition of long-term or indefinite supervision of time spent by a child with a parent is generally regarded as undesirable (see Moose v Moose (2008) FLC 93-375 at [119]; H & K [2001] FamCA 687 at [40-41]; In themarriage of B & B (1993) FLC 92-357 at 79,780), but it still remains an option for final parenting orders (see Re C & J (1996) FLC 92-697 at 83,341-2 and 83,351-2). Although undesirable, it is still a better outcome than the option of last resort, which is no interaction between the child and parent at all (see W v W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 at [112-115]; Re C & J at 83,351-2). Although an order for supervision may be intended as permanent, it is not immutable. The principles developed in Rice v Asplund (1979) FLC 90-725 still apply.

9. I reject the mother’s initial proposal to terminate the relationship between the child and the father. The child should not suffer complete excision of the father from her life merely because it is desired by the mother. There is no proper objective basis for the mother to hold such a desire. However, the mother’s subjective belief in the advantage of such an outcome must necessarily be influential in the decision about the extent of the father’s involvement in the child’s life when the evidence demands that the child continue to live with her.

10. I accept the single expert’s opinion that the child will be deprived of a meaningful relationship with the father while she remains living with the mother, but the child will eventually acquire the emotional maturity to decide for herself whether the father should play a more significant role in her life. Until then, the remnants of the previously loving relationship that did exist between the child and the father should be preserved as well as can be managed. It will be easier for the child to revive her relationship with the father in the future if she retains some rudimentary form of interaction with him.

11. For that reason, orders are made requiring the child to continue her relationship with the father in the attenuated manner envisaged by the single expert, by spending supervised time with the father on infrequent occasions and by being able to periodically communicate with him in writing.

12. I impute that the father insightfully foresaw the prospect of such an outcome because he told the single expert he “just wants to know [the child] is safe and happy”,[92] suggesting that he will reluctantly relinquish his struggle against the mother provided he can be satisfied about the welfare of the child.

    [92] Single expert report, page 12 par 4

13. The father also told the single expert he believed the child would end up coming to live with him of her own accord.[93] He may well be right. The chance of the rejuvenation of their relationship is enhanced by avoidance of its immediate termination.

    [93] Single expert report, page 12 par 4

14. The orders make provision for a variety of known supervisors to supervise the child’s time with the father, in the event that one or more of the supervisors is unavailable or unwilling to afford the supervision on an indefinite basis. That will avoid the need for further litigation over the identification of a substitute supervisor.

15. The father should pay the costs of the supervised time. He is in casual employment and the mother is not. The infrequency of the supervised time means that the father will not be confronted with a cost he cannot meet.

16. It will be the mother’s obligation to ensure the child’s attendance at the venue appointed for the child to spend time with the father. The venue must be within reasonable proximity to the area in which the father resides. It would be untenable if no such restriction existed and the mother was free to arrange a venue unreasonably far from the father in the hope of dissuading his continued implementation of the orders.

17. Of course, it is always open to the mother in future to recognise that the child is not at risk of any harm in the care of the father and to agree to the dispensation of supervision and expansion of the time the child spends with the father. The orders therefore stipulate the conditions under which the child will spend time with the father, unless the parties otherwise agree in writing.

18. The orders also make provision for the father to communicate infrequently with the child in writing. If the father avails himself of those opportunities it will be another way of demonstrating his continued commitment to the child so that she is aware he still loves her and has not abandoned her. Should the father choose to correspond with the child the mother is obliged to acknowledge his communication so the father will have the satisfaction of confirmation that his correspondence was received. If the mother declines to pass on the father’s communication to the child and she ultimately contacts him seeking an explanation for his silence the father will have the mother’s acknowledgements as evidence of his attempts. The order for written communication is framed in such a way that the child is not obliged to respond to the father so as to avoid the exertion of pressure upon her.

19. The mother has retained the secrecy of her residential address and contact details since moving to Newcastle from the NSW Central Coast in about November 2009. That move was not motivated by the most recent sexual abuse allegations, because the mother did not learn of those allegations until January 2010. The secretive relocation most likely occurred as part of the mother’s strategy to estrange the child from the father. On the evidence adduced, there is no need for the continued secrecy of the mother’s residential address and contact details. The reason given by the mother for the re-location was to guard against the risk of the child’s abduction by the father. There is no prospect of that occurrence. The child spent three weeks with the father between December 2009 and January 2010, and the father returned the child uneventfully both during and after that time.[94] The father presents no risk of family violence to the mother, and even if he did he remains the subject of a family violence order which protects the child and mother until August 2015.

    [94] Father’s affidavit, pars 21-24

20. The orders require the parties to keep each other appraised of their current residential address and contact details so as to facilitate the time spent by the child with the father and the written communication between them. They agreed to a similar order in August 2007.[95]

    [95] Order 11

21. Given that the father’s interaction with the child is much more restricted than he would like, it is appropriate for him to be furnished with relevant information about the child so that he can be assured about her medical and academic progress. Hence the requirement for the mother to authorise the release of such information to the father by the child’s treating medical professionals and school. They agreed to similar orders in August 2007.[96]

    [96] Orders 10, 12

22. The mother is restrained from permitting the child to refer to any person other than the father as “Dad”, and for consistency, the father is restrained from permitting the child to refer to any person other than the mother as “Mum”. The father will know whether the mother is compliant with that injunction when he hears how he is addressed by the child when they spend time together.

23. The mother is also restrained from changing the child’s surname from “Foster” as an incident of her sole parental responsibility for the child. Although the mother did not at any stage agitate for change of the child’s surname, evidence was adduced that the child used the surname “Bachmeier” at school in the past, which created an issue when the father angrily erased that surname from her school bag. The child’s retention of the surname “Foster” is another way in which she will retain a link to the father and his paternal influence in her life.

24. The parties are both restrained from denigrating one another in the presence of the child, or permitting the child to hear other persons doing so. They could not be heard to argue reasonably against such an embargo, particularly in light of their past agreement to such an order in August 2007.[97]

    [97] Order 16

25. The Independent Children’s Lawyer proposed in final submissions that an order should be made permitting provision of the evidence, orders, and reasons to the Department in the hope that the Department is inclined to take a supervisory interest in the family. I am persuaded that such an order is justified, particularly having regard to the single expert’s lament about the Department not having intervened in the proceedings long ago.

26. For those reasons I am satisfied that the orders set out at the commencement of these reasons reflect the child’s best interests.

I certify that the preceding one hundred and ninety-nine (199) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 23 February 2011.

Associate: 

Date:  23 February 2011