BARBERO and HAU
[2018] FCWA 26
•16 FEBRUARY 2018
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: BARBERO and HAU [2018] FCWA 26
CORAM: DUNCANSON J
HEARD: 18, 19, 20, 21 JULY 2017, 29, 30, 31 JANUARY AND 1 FEBRUARY 2018
DELIVERED : 5 FEBRUARY 2018
PUBLISHED : 16 FEBRUARY 2018
FILE NO/S: PTW 2960 of 2010
BETWEEN: MR BARBERO
Applicant
AND
MS HAU
Respondent
Catchwords:
CHILDREN - Where the mother alleges the child is at risk of sexual harm in the care of the father - Where the father alleges the child is at risk of emotional harm in the care of the mother - Where both parties seek orders that the child spend supervised time with the other - Allegations of sexual harm unsubstantiated - Where there is no unacceptable risk to the child if either party spends unsupervised time with him - Parties to have equal care of the child - Where it is in the best interests of the child for the father to have sole parental responsibility
Legislation:
Family Court Act 1997 (WA) s 7A, s 66, s 66A, s 66C, s 70A, s 89AA
Category: Reportable
Representation:
Counsel:
Applicant: Ms M Hearty
Respondent: Mr J Gore
Independent Children's Lawyer : [A Legal Practitioner]
Solicitors:
Applicant: Hearty & Tam Family Lawyers
Respondent: Jeffery Paul S Gore Lawyers
Independent Children's Lawyer : [A Law Firm]
Case(s) referred to in judgment(s):
B and B (1993) FLC 92-357
M v M (1988) 166 CLR 69
Re W (sex abuse: standard of proof) (2004) FLC 93-192
Thornton and Thornton [2015] FamCA 92
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1[Mr Barbero], the father and [Ms Hau], the mother seek parenting orders in relation to their son [B], aged seven years. The father says B is at risk of harm in the care of the mother by reason of her belief that he has physically, emotionally and sexually abused by him.
2The mother alleges B is at risk of sexual abuse or neglect in the care of the father unless his time with the father is supervised.
3The orders sought by the parties are in stark contrast, with each party seeking an order that B live with them and spend supervised time with the other. In the case of the father, supervision would end upon the mother receiving and undertaking therapy. The mother proposes indefinite supervision.
THE ORDERS SOUGHT
4B was represented by an independent children's lawyer ("ICL"). At the conclusion of the trial the ICL proposed that the father have sole parental responsibility for B's medical issues, but otherwise the parties share parental responsibility. She sought an order that the current living arrangement of a week about continue. The mother should undergo counselling. The ICL supported the father having permission to take B overseas, but was opposed to the mother doing so.
5The orders sought by the father are contained within his papers for the judge filed 14 July 2017. The father sought an order that he have sole parental responsibility for B. B should live with him and spend supervised time with the mother. The mother should engage in intensive family therapy as recommended by the single expert or ICL, and upon production of a favourable report B may commence unsupervised time with the mother, initially on a daily basis and thereafter overnight.
6The father sought various injunctions against the mother, including in relation to his medical needs.
7The orders sought by the mother are contained in a minute of proposed orders filed 13 July 2017. The mother sought an order that B live with her and she have sole parental responsibility for him. The mother proposed that B spend supervised time with the father indefinitely.
8On 15 March 2012 [Mr M], Social Worker was appointed single expert witness. Mr M provided three reports to which I refer below.
9The trial commenced on 18 July 2017 and on 21 July 2017 was adjourned part‑heard. The trial resumed on 29 January 2018 and concluded on 1 February 2018.
THE LAW
10These proceedings are determined under Part 5 of the Family Court Act1997 (WA) ("the Act").
11In reaching my decision I will be guided by the objects of Part 5 and the principles underlying those objects.
12Section 66 sets out the objects and the principles underlying them.
13The objects are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
14The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
15In deciding whether to make a particular parenting order, s 66A directs me to regard the best interests of the child as the paramount consideration. Section 66C sets out how I determine what is in a child's best interests. I must consider the matters set out in subsections (2) and (3), being the primary considerations and the additional considerations respectively.
Parental responsibility
16Pursuant to s 70A of the Act, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the child's best interests for the parents to have equal shared parental responsibility for the child.
17Equal shared parental responsibility imposes an obligation upon them to consult as to major long-term issues regarding the child and to make a genuine effort to come to a joint decision about such an issue. Section 7A of the Act sets out that major long‑term issues include issues about:
(a)the child's education (both current and future); and
(b)the child's religious and cultural upbringing; and
(c)the child's health; and
(d)the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
18The presumption does not apply in circumstances where there is abuse or family violence. The presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility.
19Both the mother and the father seek an order for sole parental responsibility.
20Pursuant to s 89AA of the Act, a consequence of making an order for equal shared parental responsibility is that the Court is required to consider whether or not the child spending equal time with each parent would be in the child's best interests and reasonably practicable. If so, the Court must consider making such an order.
21If the Court does not make an order for equal time the Court is required to consider whether or not the child spending substantial and significant time with each parent would be in the child's best interests and reasonably practicable. If so, the Court must consider making such an order.
Proceedings involving allegations of abuse
22The Court's obligation to regard the best interests of the child as the paramount consideration when making parenting orders is not altered because allegations of abuse are made.
23In M v M (1988) 166 CLR 69, 76 the High Court said (footnotes omitted):
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds; McKee v. McKee. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J v Lieschke.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
Unacceptable risk
24In B and B (1993) FLC 92-357 at 79,778, the Full Court referred to principles to be applied in cases involving allegations of sexual abuse of a child:
The High Court in M and M referred to the "imposing array'' of tests which had been formulated by the Family Court to determine whether access to a child should be denied in such cases. The Court held that the various tests expressed endeavours by the Family Court "to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access''.
The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is: —
"that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse." (at page 77,081)
25In Re W (sex abuse: standard of proof) (2004) FLC 93-192 the Full Court said:
19.The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent‑child relationship. The Court needs to be remain conscious of this imperfection at all times.
26I bear in mind the gravity of the consequences for the child of my findings and respectfully adopt the views of Murphy J in Thornton and Thornton [2015] FamCA 92 where his Honour said (footnotes omitted, original emphasis):
10.Parenting cases in which allegations of the instant type are made present significant challenges for this court. Not the least of those challenges – and one evident in this case – is the nature, extent and quality of the evidence from which the court is asked to make findings in respect of very difficult central issues.
11.Section 140 of the Evidence Act 1995 (Cth) recognises that "the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved". The gravity of findings bear upon the decision as to whether the evidence as a whole persuades me to the requisite standard that they should be made. Grave findings should not be made by reference to "inexact proofs, indefinite testimony or indirect inferences". Nor, as Dixon J observed "… circumstantial evidence cannot satisfy a sound judgment of a state of facts if it is susceptible of some other not improbable explanation."
...
13.The gravity of a finding that a father has sexually abused his children is matched by the gravity of its corollary; a finding that the father has not engaged in behaviour of that type has, if it is erroneous, obviously grave consequences for the children. Equally, a finding of unacceptable risk carries with it very significant consequences for the children and has, axiomatically, a dramatic impact on their relationship with the father as well as ramifications for how the father might be viewed in the future. Again, by way of corollary, a finding that an alleged abuser does not pose an unacceptable risk obviously also has potentially grave consequences for a child if it be erroneous.
FAMILY BACKGROUND
27The mother was born in [Asia] [in] 1974. The father was born in [Europe] [in] 1976. The parties commenced cohabitation in about May 2009. They separated on 4 November 2009. B was born [in] 2010.
28The mother has an older daughter from a previous relationship who is understood to live overseas.
THE PARTIES AND THEIR WITNESSES
29The father was cooperative and forthright. He made concessions where appropriate. His explanations were logical and plausible.
30The father showed considerable insight into the needs of B. I consider the father to be a truthful witness and I accept his evidence. Where the father's evidence conflicts with that of the mother, I prefer that of the father.
31The father relied on the evidence of [Ms S] and [Mr A], both of whom spoke of B's close relationship with the father. Those witnesses were not required for cross‑examination.
32The mother gave her oral evidence with the assistance of a Mandarin interpreter. At the outset her counsel alerted the Court to the possibility of misunderstandings in interpretation and consequently care was taken to ensure that the mother understood the questions and her answers were properly interpreted. At times the mother answered in English and at those times her evidence was clear and readily understood by me. When she did not understand a question, she said so.
33On the second day of the resumed trial the interpreter explained he was having difficulty interpreting for the mother as she was being obstructive. The mother explained that the interpreter interpreted a word as "drugs" when she meant "medication". In fact I had noted the word medication and accordingly I had correctly recorded the mother's evidence. The mother's counsel was concerned about the relationship between the interpreter and the mother, and informed the Court that he had specifically requested certain interpreters. Her counsel said one of those interpreters had previously interpreted in this matter, assisted him on the Sunday before the trial recommenced, and advised him that she would be available if necessary. I expressed my concern in the mother selecting an interpreter who had been involved in the preparation of the case and who might have some affinity or alignment with her, and indicated that the interpreter ought to be independent. The matter was not pursued further. The interpreter was willing to continue in his role.
34Later that day, while the single expert witness was being cross-examined by the mother's counsel, the interpreter informed the Court that he had to leave. The mother's counsel took her instructions and indicated that the matter should proceed notwithstanding the absence of an interpreter. I had noticed a period of time during the cross-examination of the single expert witness where the interpreter was silent. The mother made no complaint and presumably was able to understand the proceedings without the assistance of the interpreter at that time.
35The mother's evidence was less reliable than that of the father. At times the mother obfuscated, for example, saying she could not recall if a letter she had written to Paterson & Dowding was in response to their letter on behalf of the father requesting time with the child.
36I do not accept the mother's evidence that the father told her he did not want the child and forced her to get an abortion.
37The mother's evidence in this respect was contradicted by an email written by her brother to the father. The mother's evidence in relation to her reports concerning injuries to the child after visits with the father was unsatisfactory. One of the hospital reports dated 20 August 2010 noted a concern of the mother that B may have been injected by the father as the mother had sighted a scratch and B was extremely unsettled. When asked about this, the mother said she could not remember if she told the hospital staff that. The mother's allegations of B being injected were not substantiated. I do not accept the mother could not remember such an important matter.
38At times when the mother's evidence differed from that of others or the contents of documents, she said there was a misunderstanding or misinterpretation. She was evasive when asked if she had read the single expert witness' recommendations in his third report. In other aspects however, I accept the mother's evidence for example, in relation to the surgery to B's eye. I also accept that there was no interpreter present when the mother was first interviewed by the single expert witness.
39The mother relied on a report dated 20 December 2017 from [Dr W]. The mother relied on the evidence of [Ms X] who was not required for cross‑examination.
40The mother relied on the evidence of [Ms L] who I consider gave truthful evidence.
The single expert witness
41Mr M provided his first report dated 9 July 2012, he recommended that B continue to live with the mother and spend increased time with the father allowing an overnight stay each week on a Sunday.
42Mr M provided a second report on 5 January 2015. He referred to the mother's allegations that the father had abused or neglected B and in his view, they were unfounded. He recommended that B spend extended time with the father from Wednesday to Monday that is a total of five nights per fortnight. He foreshadowed an option of a week about arrangement in the future.
43Mr M provided his third report dated 28 November 2016. He had previously recommended the mother attend a psychiatric assessment with a culturally appropriate practitioner, by reason of her chronic anxiety which he thought may be affecting her parenting. He was concerned the mother may have been displaying signs of Munchausen Syndrome by Proxy. Mr M recommended that B move to the full-time care of the father forthwith and that the time B has with the mother be strictly supervised by an independent agency. He recommended the mother should attend family therapy.
44Mr M also gave oral evidence. As a consequence of the evidence as a whole, I am unable to place significant weight upon the contents of his third report, or that oral evidence.
45The mother's counsel was critical of Mr M's evidence. His criticisms included the following:
•There was no interpreter present when the mother was first interviewed;
•Mr M maintained he was qualified to diagnose Munchausen Syndrome by Proxy. He was not familiar with the other name for this condition, Factitious Disorder Imposed on Another, or its acronym FDIoA. He did agree with the content of the report of the mother's clinical psychologist, [Ms K] dated 5 June 2015, where she set out the requirements for an ethical diagnosis of this behaviour pattern. [Ms K] stated caution should be exercised in attaching this child protection label of FDIoA as a substitute for a factual analysis and risk assessment;
•In cross-examination Mr M accepted that on occasions when the mother had taken [B] to hospital, it was with a genuine complaint;
•Mr M's reference to the Department for Child Protection and Family Support ("the Department") substantiating emotional harm was inconsistent with the determination of the safety and wellbeing assessment approved outcome report that the emotional harm was "substantiated as likelihood of harm" (emphasis added); and
•Mr M's reference to [B] having made no disclosures in any forensic interviews was inconsistent with the evidence in respect of the forensic interview which occurred on 11 May 2016 in which disclosures were made.
46These criticisms were well-founded although to an extent, inaccuracies in Mr M's report were based on information he received from the Department.
47Finally in respect of Mr M's evidence I accept the submission of the ICL that the report is out of date and that Mr M is not aware of the positive aspects to B's current living arrangements, to which I refer below.
Ms C
48[Ms C] is a senior child protection worker who has been with the Department for over 11 years. She was the author of the family safety plans. She is an experienced child interviewer. Ms C spoke to a number of documents produced upon subpoena to the Department, and I refer to several of those below when discussing the allegations of abuse and involvement with the Department.
THE PARTIES' RELATIONSHIP
49The mother alleged the father was violent towards her, that he assaulted her and that he forced her to have sex with him when she was pregnant. The father denied these allegations. He said there was no violence in the parties' relationship. Having regard to my findings as to the reliability of the parties' evidence, I am inclined to accept the father's evidence in this respect. I do however accept there were difficulties in the parties' relationship and at times the mother was upset. Ms L had suggested they seek assistance from a relationship counsellor.
50Shortly before the parties separated the mother travelled to Asia when she was pregnant. The father understood she was going for a rest and to see family. During the course of her time there the mother informed the father that she had aborted their child. The father described himself as "shattered". He ended their relationship. He sent her a text message saying he had changed the locks and the relationship was over. The mother returned from Asia and sought to return to the home. She said she did not know the relationship was over. The father denied her entry. The police were called.
51The father offered to provide money for the mother to stay at a hotel. In fact the mother had not had an abortion and was still pregnant.
52The mother was upset that the father had ended the relationship. She spoke of this to others, for example at [Hospital A] she told the staff there that she had been "dumped" by him. It was the father's case that as a consequence she sought to deny him a relationship with their child.
THE CHILD'S TIME WITH THE FATHER
53B commenced spending time with the father in August 2010, with weekly visits of two hours supervised by the paternal grandmother.
54In October 2010 the visits were supervised by Anglicare. Following a favourable supervision report the two hour weekly visits became unsupervised in December 2010, although handovers remained supervised. B's time with the father gradually increased such that he spent time with the father for five and half hours on Saturdays and an overnight per week.
55On 16 January 2013 orders were made by consent providing that B live with the mother. It was ordered by consent that the father was to "share equal joint responsibility" for the long-term care, welfare and development of B, including medical treatment, education and religious instruction.
56B's time with the father increased such that he spent time with him from Friday to Saturday each week until he attained the age of three years. Thereafter it increased to three overnights per fortnight. With effect from July 2013, by consent B's time with the father increased to four nights a fortnight and thereafter from February 2015 to five nights per fortnight. Handovers continued to be supervised.
57Since July 2015, B has lived with each of the parties on a week about basis with handover occurring at [School A] or [day care] in [Suburb A].
B'S MEDICAL NEEDS
58B was taken to the emergency department of the hospital on many occasions. The father conceded that at times the attendance was appropriate but said at other times the mother should have taken B to the doctor, and an attendance at the emergency department was not necessary.
59On a number of occasions the mother took B to the emergency department after his visits with the father, with allegations of physical abuse.
60The mother's attendance with B at the emergency department was so frequent that an investigation was carried out by the Child Protection Unit at Hospital A.
61In 2011 the mother took B to the emergency department about 15 times.
62On occasions the father attended Hospital A at the same time as the mother. He saw the mother taking photographs of B during examinations.
63A senior social worker noted the mother needed counselling.
64Although on 16 January 2013 an order had been made by consent that the parties have equal shared parental responsibly for B on an interim basis, they did not communicate well about medical matters.
65In 2014 the mother arranged a circumcision procedure at Hospital A for B. She denied the father was not told about the procedure. The father arranged further medical examinations and this surgery was subsequently cancelled with the urologist reporting that B had a healthy and normal foreskin.
66In 2015 surgery was required on B's eye. The mother did not consent to the surgery at the time. The mother had seen a different eye specialist who was monitoring B's condition. The mother's advice was that surgical removal of the lesion was "not absolutely mandatory". On 11 August 2015 it was ordered that the father have sole authority to sign all documents necessary to place B on the waiting list for surgery to his eye. The mother was ordered to make appointments with B's specialists, but said she was unable to do so. Ultimately, she said she consented to surgery and she acknowledged the surgery was successful.
67B was in the care of the father between 26 October and 2 November 2016. He hurt his finger and had a small blood blister. The father applied cream to it for two days. It was not necessary to apply thereafter. He said B was not at all distressed. A day after B's return to the mother she sent text messages about the blood blister. The mother took photographs of B and his finger which became Exhibit 16. The mother's response to a minor injury was disproportionate and unnecessary.
68The mother provided a photograph of a number of cotton buds with wax on them as an indication of the father's neglect. The mother said that the father had failed to clean B's ears and these cotton buds established that. Apart from the fact that it is undesirable to put cotton buds into a child's ear, the mother was hyper-vigilant and her approach to B's health continued to be overcautious.
69On the contrary the father's conduct in relation to B's medical needs has been caring, careful and measured. He has obtained medical assistance when required and otherwise shown perspective.
THE ALLEGATIONS OF CHILD ABUSE AND INVOLVEMENT WITH THE DEPARTMENT
70As at 14 July 2015 the Department had been contacted a total of 19 times due to allegations of physical or sexual harm made by the mother, and four safety and wellbeing assessments had been carried out.
71In November 2011 the mother took B to the emergency department with unexplained bruising which she alleged was caused by the father during B's visit with him. B was admitted and examined.
72The file note of Hospital A’s Child Protection Unit recorded on 21 November 2011 that while the mother's claims and the bruises etc., could be considered suspicious, there was no evidence to suggest that the father had harmed B and the note went on to say "confirmation of this is what she is desperately seeking".
73The mother was told at that time that regarding the behaviour of B, then 22 months old, playing with his genitals was normal.
74The mother deposed that in February and April 2014 B made disclosures to the effect that the father asked him to play with the father's penis, but he did not do so, and that his father wanted to play with B's penis. The father denied these allegations. A safety and wellbeing assessment was undertaken and B made no disclosures. The allegations were not substantiated by the Department.
75The mother deposed in April 2015 B told her the father put something on his anus which she said was slippery. B was interviewed on 18 May 2015. He made no disclosures and reported he felt safe in both parents' homes.
76The Department's approved outcome report noted that the Department suspected B had possibly been coached by the mother in relation to his disclosure, or his continued exposure to the mother's fixation on abuse issues had caused him to act out his mother's anxieties. The Department noted that no evidence had been found substantiating harm of B by the father and the report referred to the mother's history of making seven unfounded allegations of abuse against the father between 2011 and 2015. There was no evidence of emotional disturbance in B and the Department did not substantiate any significant emotional harm at that time.
77On 13 May 2015 the mother filed a Notice of Risk. The Department provided its assessment dated 14 July 2015. The Department assessed that the allegation of sexual harm and emotional harm was not substantiated and closed the case as no further action.
78The Department opened the case involving B when a mandatory report was received on 21 April 2016 by a doctor after B and the mother had presented at his clinic that day. B had indicated to the doctor that his father had touched him on his private parts.
79On 5 May 2016 the mother said B insisted on going to the emergency department. She said he told her if she did not take him, he would go himself. The mother said she followed him as he knew which bus to catch. While there B told the receptionist that his father tickled his penis, bottom and boobs. B was six years old at the time. B was interviewed on 11 May 2016. The interview completion form recorded in the interview summary that B disclosed two incidents of the father tickling him. He also said the mother told him "keep [it] a secret and not to tell anyone". The police decided not to proceed with charges. The Department supported the then current arrangement of week about care. On or about 13 May 2016 B disclosed to the school principal that his father tickled his private parts.
80On 20 May 2016 the police (Child Abuse Squad) interviewed the father. He explained he tickled B in play. In their innocent games B sought out physical contact. He said B did not use the word penis. The Department noted the father had demonstrated his ability to care for and protect B.
81On 29 June 2016 B was interviewed by Ms C, Senior Child Protection Worker. B disclosed that the father touched and tickled his penis. Ms C explained that she redirected the interview as B had been interviewed regarding this alleged disclosure several weeks earlier and the purpose of her interview with him was to assess emotional harm. Ms C noted that it was the first time B had used the word "penis" and when B made the statement it was "matter of fact" and there was no distress or emotion evident in his speech or body language. During the interview B made reference to things his mother told him and Ms C was of the view that some information in B's interview suggested he was coached as his statements were far too articulate for a boy of his age.
82The Department noted that the mother's anxiety around her conflictual relationship with the father and a previous history of trauma in relation to her previous child were having an impact on her parenting of B. This was a reference to her daughter who would now be about age 19, who lives with her father in Europe. The mother had told Ms C on 19 May 2016 that her daughter's father had raped her, but could give her child a better life.
83During the course of its investigation the Department noted it had undertaken a significant amount of assessments in relation to sexual, physical and emotional harm that B may have been exposed to. There had been no substantiation of any physical and/or sexual abuse, but concerns were raised regarding the mother's emotional state of mind, consistent allegations being reported to agencies and the impact this may have on B.
84The outcome of the investigation was that the allegation of sexual harm in relation to B was unsubstantiated. The allegation of emotional harm in relation to B was substantiated as likelihood of harm. The Department assessed that the mother and the father (in their own rights) were able to protect B.
85The mother's behaviour did not meet the Department's definition of emotional harm. The mother's behaviour had not had the requisite impact upon B to meet that definition and in fact the information from B's school was positive. It is for this reason that the emotional harm substantiated was as a likelihood of harm and not actual harm.
86The family safety plan was finalised by the Department on 22 July 2016. The father signed it on 1 August 2016. The mother signed it on 12 August 2016. That signed by the mother excluded the harm and danger statements, which recorded the Department's concerns about the mother's behaviour.
THE CHILD'S CURRENT CIRCUMSTANCES
87B's school report for Semester 1 of 2017 was a favourable one, and stated:
[B] is an energetic and enthusiastic student with a very sociable nature. He shows an eagerness to participate in class discussions. [B] is eager to ask questions when necessary to improve his understanding. He displays initiative in the classroom and will find constructive work to complete when he finishes his tasks early. [B] shows the ability to empathise with his peers and enjoys group work. He has a positive attitude and sense of responsibility towards his learning. [B] is a very creative student who has achieved very good results. Keep up the great work, [B]!
88The father has made proper arrangements for the care of B around his working commitments. He has employed a nanny who has a child and B enjoys their company as well as the company of other children.
89Similarly the mother makes proper arrangements for B's care and her friend Ms L deposed she takes exceptionally good care of him.
90The father explained that B does not need discipline and that it is enough for him to tell B if he goes beyond the threshold. He described B as well‑educated and receptive to instructions by him.
91The father, again showing perspective, considers that B is a healthy, happy child. He does not make up stories. He is able to think independently to achieve what he wants. He knows lying is bad, but he is able to tell a small lie.
92B is a very happy child who transitions well between his parent's homes. The father said in the last six months, he and the mother have been able to communicate a little better and there has been a slight improvement. He described B as cautious when he comes into his care and needs lots of physical protection for example, to hug; he then seems to settle down. He enjoys his time with the father and with his mother. The father agreed with the proposition that B is thriving in the current arrangement. That has to be to the credit of both parties. The father readily conceded this, but said that the mother really must change her behaviour and recognise that she has done something wrong in coaching the child. She must learn to understand that would be emotional abuse. She will need counselling to address this. On the other hand the mother demonstrated a good understanding of the family safety plan and a willingness to comply with it.
UNACCEPTABLE RISK
93Having carefully considered all of the evidence I have concluded that neither the father nor the mother pose an unacceptable risk of harm to B if orders are made that B spend time with each of them including unsupervised time. My view in that respect is supported by the ICL.
94B made disclosures, but it does not follow that the only explanation is that he had been sexually abused by the father. The mother was anxious, hyper-vigilant and it is more likely than not that she has coached B into making the statements he did or her anxiety contributed to the making of the disclosures. She remains fixed in her views and is convinced that in 2016 B was sexually abused by the father.
95The mother's readiness to infer the worst commenced when B was very young and when he commenced spending time with the father. This is evidenced by the numerous visits to the emergency department of Hospital A, with the mother seeking to obtain confirmation of her beliefs.
96The allegations made in 2014, 2015 and 2016 were thoroughly investigated by the Department. The allegations were not substantiated.
97I accept that the mother was sincere when she said that it is necessary for her to balance the potential risk to B of spending time with the father with the potential risk to B of not having a meaningful relationship with the father. Her priority was to keep him safe.
98My own assessment of the father is that he is a kind and loving parent to B.
99In determining that the mother does not pose a risk of unacceptable harm to B I accept that she is a devoted parent who wants to keep B safe from harm. She holds an unshakable belief that B has been sexually abused and I accept that she will not change her belief. She does however appear to have changed her behaviours.
100Most significantly with respect to the mother I am mindful that there have been no reports of abuse since mid-2016 and no suggestion that these allegations might again be raised. On the contrary B is a happy child; he is thriving in the care of both parties and transitions reasonably well between them. B's close relationship with the father suggests he has not been alienated from him. B has much to gain by maintaining his bond with both of his parents.
101Both parents have mostly complied with the Department's family safety plans which they signed.
102I consider the mother will have to continue to receive therapy to deal with her anxiety, although I was encouraged by the evidence provided from Dr W to the effect that she is managing her anxiety better, and this may well have had an impact on B's current stability.
THE PRIMARY CONSIDERATIONS
the benefit to the child of having a meaningful relationship with both of the child's parents
103B has a meaning relationship with both of his parents and I find it is to his benefit that it continues.
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
104I have discussed the matters concerning the alleged abuse of B above, both in relation to the sexual abuse allegations and the allegations of emotional abuse. I have found that neither party poses an unacceptable risk of harm to B. I find there is not a need to protect him from physical or psychological harm in the care of either party.
105I refer below to the mother's beliefs when considering her capacity to provide for B's emotional needs.
ADDITIONAL CONSIDERATIONS
any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
106B is seven years of age. He is happy in the care of both parents. He is otherwise too young to express any meaningful views.
the nature of the relationship of the child with –
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child)
107B has a close and loving relationship with both of his parents. He is accustomed to living with each of them on a week about arrangement and is progressing well.
108B has a close relationship with the paternal grandmother. According to his school report he enjoys the company of friends.
the extent to which each of the child's parents has taken, or failed to take, the opportunity -
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
109Both parties have participated in making decisions about major long-term issues in relation to B, but they have not communicated or managed this aspect of his care well. On 16 January 2013 an order was made by consent, until further order that the parties have equal shared parental responsibility for B. Notwithstanding that there were difficulties between them in relation to medical issues.
110Recently there was a disagreement about B's use of a preventative inhaler for asthma.
111Recently in November 2017 both parties attended a concert performance by B and sat together. Similarly in November 2017 both attended the Immunology Department together.
112Both parties have otherwise spent time and communicated with B and maintained him.
the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from -
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
113This is a significant consideration in the circumstances of this case and has been persuasive in my determination. On the father's proposal B would be in his primary care and spend time with the mother. The father proposed in his orders sought that the time be supervised although he was accepting of the indication that I gave that I did not consider supervision to be necessary.
114On the mother's case B would live with her and spend supervised time with the father indefinitely. This would be a dramatic reduction in B's time with the father and one which I do not consider would be in his best interests.
115I think if the father can be satisfied that the mother will change and perhaps get counselling for her anxiety and her behaviour, he would rather continue the week about arrangement because he recognises the separation of B from his mother will cause considerable distress.
116The positions of both parties represent a dramatic change in B's circumstances. It is not in dispute that B is happy, settled, progressing well at school and there is no suggestion that he is anything other than a well-adjusted child with a close and loving relationship with both of his parents. I conclude that the likely effect on B of a separation from either of his parents would have a detrimental effect upon him.
the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
117There is no practical difficulty and expense of B spending time with either party. Handovers take place at school, or at day care in Suburb A.
the capacity of -
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child),
to provide for the needs of the child, including emotional and intellectual needs
118The mother provides well for B. Her capacity to provide for his emotional needs is compromised by her belief that the father has sexually abused B. She remains concerned but conceded that there had been no recent disclosures and B had not said anything which would cause her to believe that the father had harmed, or was likely to harm him.
119I have found it is more likely than not that she coached B in making disclosures. I have also found that she was anxious and hyper-vigilant. I take into account that there has been some improvement in her anxiety and that she receives assistance from Dr W.
120Dr W saw the mother for mental state review and supportive counselling and he referred her to a psychologist. Dr W wrote:
She still has some concerns about her son's wellbeing when he spends time with the father but she is not overly preoccupied with it. She can reassure herself.
121Dr W wrote the mother is certainly more resilient and less anxious. He did not swear an affidavit and was not available for cross-examination.
122The mother is also receiving counselling. I consider it will be necessary for her to have some therapy to address her concerns and the treating therapist should be provided with a copy of these reasons and the orders below.
123The father is able to provide for B's needs on all levels. He has demonstrated a good understanding of B's emotional needs and also a sensitivity thereto.
the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
124B is almost eight years of age.
if the child is an Aboriginal child or a Torres Strait Islander child -
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right
125This consideration is not relevant.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
126The father has demonstrated an appropriate attitude to B and the responsibilities of parenthood. The mother takes her responsibilities of parenthood seriously and in particular to protect B from harm and ensure his safety. I have referred above to the likelihood that she coached B. She will be aware that any future allegations would be carefully scrutinised by the Court and if found to be fabricated by her, she runs the risk of losing care of B.
127Unfortunately both parties view the other with mistrust. The father cannot be certain that the mother will not coach B in making further disclosures. The mother does not trust the father by reason of her belief that he has sexually abused B. It is important that the parties continue to shield B from their views of each other as they appear to be doing at present.
any family violence involving the child or a member of the child's family
128The mother alleged there was family violence between the parties. The father denied this. Upon the evidence I am unable to find the allegations made by the mother to be reliable.
129There is currently no family violence involving B or a member of B's family.
if a family violence order applies, or has applied, to the child or a member of the child's family – any relevant inferences that can be drawn from the order, taking into account the following –
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter
130There is no family violence order in effect.
whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
131I considered very carefully whether I should make interim orders and monitor B's progress and in particular the mother's conduct. I am mindful that for the last 18 months there have been no significant difficulties between the parties and nothing adverse has occurred which has impacted on B. On the contrary B is making good progress and benefiting from his relationship with both of his parents.
132I considered that on balance it was not necessary for me to make interim orders. The mother will have to have therapy, but it is not necessary for the Court to monitor her progress given the uneventful care of B in the last 18 months.
any other fact or circumstance that the court thinks is relevant
133I have referred above to the need for the mother to have counselling. I consider it is also important that the parties continue to comply with the family safety plan prepared by the Department.
CONCLUSIONS
Parental responsibility
134There are many positive aspects to the mother's parenting of B, but her unshakeable belief that the father has sexually abused B detracts from her otherwise good parenting. The father denies harming B. This is a fundamental issue of dispute between the parties. There is no suggestion that it will abate in the future. In these circumstances, it is unlikely that the parties will be able to consult and jointly make decisions about long-term issues concerning the child. The mother's anxiety and hyper-vigilance leads me to conclude that she is likely to be a less competent decision maker than the father, whom I find to be sensible and competent.
135I find the presumption that it is in B's best interests for his parents to have equal shared parental responsibility is rebutted in the circumstances of this case. I will order that the father have sole parental responsibility for B, but that it will be necessary for him to consult the mother prior to making a major long-term decision and then inform her of the ultimate decision made.
B's living arrangements
136It is necessary for me to determine the living arrangements for B which I consider to be in his best interests, informed by my findings with respect to the matters I have considered under s 66C of the Act.
137I have found that neither the father nor the mother pose an unacceptable risk of harm to B if orders are made that B spend time with each of them including unsupervised time.
138This finding is not determinative of the orders which are in B's best interests. It is necessary for me to consider my findings with respect to the primary and additional considerations. I have balanced the various factors. Of considerable importance is the benefit to B of having a meaningful relationship with both of his parents. Also of significance is the likely detrimental effect on B of orders which involve a significant change in his living arrangement such that he spends less time, or supervised time with a parent.
139I place weight on the importance of maintaining B's current stability and happiness.
140The mother must continue to address her anxiety. The parties may wish to use a communication book if they have not already done so. I intend to make orders which provide for B to continue living on a week about arrangement with each of the parties.
141During the course of closing submissions an issue arose as to B's overseas travel. The father seeks to have an opportunity of travelling overseas with B. The mother is opposed to such an order. The father opposes any suggestion that the mother might have permission to take B overseas for a holiday.
142For most children it is beneficial to have the opportunity of overseas travel. I also consider that the father can be trusted to take good care of B while overseas and I therefore propose to permit him to take B overseas. Regrettably I do not enjoy the same confidence in the mother. She may not be satisfied with the outcome of the case. I am not convinced that I can place in her the same trust that she will return B if permitted to travel overseas. I consider the mother to be a flight risk. At this time therefore, I do not intend to permit the mother to take B overseas. If B's circumstances remain uneventful in the future that may change.
THE ORDERS
143After hearing from counsel, the orders I make are as follows:
1All previous parenting orders be discharged.
Parental responsibility
2The Applicant, [MR BARBERO] have sole parental responsibility for the child, [B] born [in] 2010.
3Before the Applicant makes a decision as it relates to a long-term issue concerning the child he shall:
(a) notify the Respondent, [MS HAU] by email of the decision he intends to make and the reasons for the decision;
(b) seek the Respondent's comments on the decision he intends to make;
(c) take into account any comments the Respondent makes about the decision he intends to make, provided such comment is received, by email, from the Respondent within five days of notice being given by him; and
(d) notify the Respondent by email of the decision he has made.
The child's living arrangements
4The child shall live with the parties on a week about basis with handover taking place on Wednesday each week after school or at 3.00 pm.
5The child shall otherwise live or spend time with the parties as may be agreed between them in writing.
Handover
6Unless otherwise agreed in writing handover shall take place at [School A] or [day care in Suburb A].
Injunctions
7The Respondent be restrained and an injunction is hereby granted restraining her from:
(a) taking the child to any medical practitioner or medical provider without the prior consent of the Applicant, except in the case of emergency;
(b) administering any medical treatment to the child unless advised to do so by the Applicant, except in the case of emergency; and
(c) removing the child from the State of Western Australia or the Commonwealth of Australia.
8Both parties be restrained and an injunction is hereby granted restraining each of them from:
(a) denigrating the other parent to or in the presence of the child, or allowing a third person to do so; and
(b) discussing these proceedings with or in the presence of the child, or allowing a third person to do so.
Medical and education issues
9In the event that the child suffers from a major health issue then the party who has the care of the child at that time shall immediately communicate with the other parent in relation to the health issue.
10Each party shall be at liberty to attend significant medical, therapeutic or other specialist appointments in relation to the child.
11Each party shall be at liberty to attend school, sporting or extracurricular activities for the child and shall provide reasonable notice to the other of any special events pertaining to the child to enable both parties to attend those events.
Travel
12The Australian Federal Police be requested to remove the child's name from the Family Law Watch List operating at all international ports in Australia and the Applicant do supply the Australian Federal Police with a sealed copy of this order.
13The Applicant be at liberty to apply for an Australian Passport for the child and the Respondent's consent to such application be dispensed with.
14The Applicant shall retain the child's Australian Passport and any other passport in the child's name.
15The Applicant be at liberty to remove the child from the Commonwealth of Australia for the purpose of a holiday with the Applicant for a period not exceeding 28 days, with the Applicant to advise the Respondent in writing of the following, 28 days prior to travel:
(a) an itinerary of travel plan including flights, addresses and contact telephone numbers during the travel; and
(b) confirmation that the child shall have telephone communication with the Respondent not less than once a week.
16The Respondent shall have liberty to spend makeup time with the child as may be agreed between the parties on the basis that the Respondent's time with the child during the travel be suspended.
Provision of information
17Each party shall keep the other informed of their current mobile telephone numbers, email addresses and residential address and promptly inform the other of any change thereto.
Programs and therapy
18The Respondent continue to attend upon [Ms N], Psychologist and [Dr W] in accordance with the recommendations of those practitioners.
19The ICL have permission to provide a copy of the reasons for decision and these orders to the aforementioned practitioners.
Electronic communication
20The child have electronic communication with the parent with whom he is not living in accordance with his wishes.
Procedural orders
21The Independent Children's Lawyer be discharged.
22All extant applications be and are hereby dismissed.
23All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.
24In relation to material tendered as an exhibit into evidence in these proceedings:
(a) all parties must collect the exhibits tendered by them ("their exhibits"), from the chambers of Justice Duncanson, at least 28 days, and no later than 42 days, from today's date;
(b) all parties must contact the chambers of Justice Duncanson to arrange the collection of their exhibits; and
(c) in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the Court without notice to the parties.
25In the event of an appeal being lodged prior to the expiration period of 42 days, orders 23 and 24 above do not apply.
I certify that the preceding [143] paragraphs are a true copy of the reasons for judgment delivered by this Honourable Court
Associate
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