Belton & Braim (No 2)

[2019] FamCA 840

FAMILY COURT OF AUSTRALIA

BELTON & BRAIM (NO. 2) [2019] FamCA 840

FAMILY LAW – CHILDREN – Best Interests - Where the mother seeks an order that the child live with her and that the father’s time with the child be supervised until the child is 12 years old – Where the father seeks an order that the child live with him and spend substantial and significant time with the mother – Where the mother’s child from a previous relationship made allegations of sexual abuse against the father – Where the evidence as a whole is insufficient to support a finding that the father poses an unacceptable risk of sexual harm to the child – Where the child has expressed a clear desire to have a relationship with her father – Where it is in the child’s best interests to have a meaningful relationship with her father – Where the mother is the child’s primary attachment figure and a change in residence, as proposed by the father, would result in a significant risk of the child suffering emotional and psychological harm – Where the child will remain living with the mother and will spend time with the father commencing with supervised day time only and gradually increasing to alternate weekends and school holiday time.

FAMILY LAW – CHILDREN – Parental Responsibility – Where the father seeks equal shared parental responsibility – Where the mother seeks sole parental responsibility – Where the parents have no capacity to make joint decisions and it would not be in the child’s best interests for them to have equal shared parental responsibility – Where the mother will have sole parental responsibility with an obligation that she consult with the father before making a final decision.

Family Law Act 1975 (Cth)

Baghti & Baghtiand Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Bant & Clayton [2019] FamCAFC 198.
Johnson & Page (2007) FLC 93-344
M & M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92-655

APPLICANT: Mr Belton

RESPONDENT: Ms Braim

INDEPENDENT CHILDREN’S LAWYER: Mr N. Grainger

FILE NUMBER: BRC 3195 of 2017

DATE DELIVERED: 15 November 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 14 – 18 October 2019

REPRESENTATION

FOR THE APPLICANT: Self-represented

FOR THE RESPONDENT: Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms S. Christie

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Order

1. The mother shall have sole parental responsibility for all major long term issues (as that is defined in the Family Law Act 1975 (Cth) (“the Act”)) for the child X born … 2011 (“the child”).

2. In exercise of the mother’s sole parental responsibility:

   (a)       The mother shall inform the father in writing about decisions to be made 21 days prior to making any decisions, save in the case of an emergency and then such notice to be provided as soon as practicable;

   (b)       Seek a response from the father in writing about the decision to be made;

   (c)       The father shall have seven days to respond to the mother’s email correspondence;

   (d)       The mother shall consider the father’s response and keep in mind the best interests of the child as her paramount consideration;

   (e)       The mother shall inform the father in writing as to the decision she has made as soon as reasonably practicable.

3. The child shall live with the mother.

4. The father shall spend time with the child at all times as may be agreed between the mother and father in writing and failing agreement as follows:

   (a)       For a period of three months every second Saturday for two hours supervised at W Group (where the parties are currently registered) to commence on the first available Saturday after this order;

   (b)       For a further period of six months every second Saturday from 9am to 5pm supervised by Ms A Belton or Ms B Belton or another adult agreed to by the parties in writing, upon the supervisor signing an undertaking to supervise in the form attached to this order;

   (c)       For a further period of six months every second Saturday from 9am to 5pm unsupervised;

   (d)       For a further period of six months every second weekend from after school Friday to 5pm Saturday unsupervised;

   (e)       For a further period of six months every second weekend from after school Friday to 10am Sunday unsupervised;

   (f)        For a further period of six months every second weekend from after school Friday to 5pm Sunday unsupervised;

   (g)       Thereafter every second weekend from after school Friday to before school Monday or Tuesday if Monday is a public holiday unsupervised. 

5. From the commencement of school term in 2022, the father shall spend time with the child during school holidays at all times as may be agreed between the mother and father in writing but failing agreement as follows:

   (a)       For the first week of each school holidays in Term 1, Term 2 and Term 3 school holidays in 2022:

   (b)       For the first, third and fifth weeks of the Christmas school holidays in 2022:

   (c)       For the purpose of school holiday time in paragraph 5(a) and (b) each week is taken to commence at 3.00pm each Friday.

   (d)       For the second half of each school holidays in 2023 and in each odd numbered year thereafter and the first half of each school holidays in 2024 and in each even numbered year thereafter.

   (e)       For the purpose of school holiday time in paragraph 5(d) the school holidays are taken to commence after school on the last day of term and conclude on the morning of the first day of the next school term and the calculation of half school holidays shall be based on the number of nights in each school holidays, and if there is an odd number of nights then the child will spend the extra night with the parent who is spending time with the child for the first half of the school holidays in that year.

6. Notwithstanding any other provision in this order and subject to any agreement between the mother and father in writing, the father shall spend time with the child:

   (a)       In 2020 from 12.00pm Christmas Eve until 12.00pm Christmas Day;

   (b)       In 2022 from 12.00pm Christmas Eve until 12.00pm Boxing Day;

   (c)       From 2021 on each Father’s Day weekend from 3.00pm on Friday until 2.00pm on Sunday if the child is not otherwise spending time with him;

   (d)       From 2021 on the Father’s birthday from 3.00pm until 8.00pm if the child is not otherwise spending time with him.

7. The father be at liberty to communicate with the child by telephone each Wednesday between 5.30pm and 6.00pm with the father to initiate the call to the number provided by the mother, namely 0415 439 734, or such other number as the mother provides to the father from time to time.

8. Changeover shall occur at the child’s school whenever time is to commence or conclude at a time when the child is attending school and at all other times, changeover is to occur at McDonald’s Suburb O.

9. The mother and father shall communicate only about matters relating to the child and only by email (save in an emergency), and such email communication shall be limited to one email per week.

10. The mother and father shall keep each other informed of a current email address at all times to be used for communication about the child in accordance with the preceding paragraph.

11. The mother and the father shall be at liberty to attend at the child’s extracurricular, religious and sporting activities in accordance with the policies of the entities organising such activities save that each parent is restrained from approaching the other unless they first have the other parent’s consent in writing to do so.

12. The father is restrained from providing dairy products to the child pending the outcome of the following paragraph.

13. The mother is to cause the child to be assessed for dairy intolerance by a paediatrician or a person recommended by a paediatrician and provide the father with a letter of outcome within six months of this order. If the child is not diagnosed with a dairy intolerance or the mother does not provide the report to the father within six months, the restraint against the father as provided in the preceding paragraph is discharged.

14. The mother is to take all steps necessary to ensure that the child attends confidential therapeutic counselling with a child psychologist to assist the child in managing her parent’s inability to put the child’s interests ahead of their own and to provide tuition in protective behaviours. For this purpose, the mother is to provide a copy of the reasons for judgment of the Honourable Justice Carew dated 15 November 2019 to the treating psychologist. The mother is to ensure that the child attends therapy for such period and frequency as recommended by the treating psychologist.   

IT IS FURTHER ORDERED BY CONSENT

1. The mother shall keep the father informed in writing of the details, including the names and addresses, of the child’s school and health professionals and advise of any change to that information within seven days of such change.

2. This order is sufficient irrevocable authority for the child’s educational and health service providers (other than the child’s psychologist referred to in paragraph 14 herein) to provide to the parties any information, document, or thing in relation to the child that a party is entitled to receive (including but not limited to reports, letters, photographs and the like) and to discuss all matters pertaining to the child’s education, health and wellbeing and to ensure that all school records include both parties as persons to be notified in case of emergency. The costs, if any, of such information shall be borne by the party requesting same.

3. Each party is hereby restrained from discussing these proceedings with the child.

4. During the time the child is with either parent, that parent shall:

   (a)       Respect the privacy of the other parent and not question the child about the personal life of the other parent; and

   (b)       Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.

5. Each parent will inform the other parent as soon as reasonably practicable of any serious medical conditions or serious injury suffered by the child.  This order authorises any treating medical practitioner to release the child’s medical information to the requesting parent.

IT IS FURTHER ORDERED

1. The independent children’s lawyer is discharged.

2. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order 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 this Order.

Form of undertaking to be signed by proposed supervisor

(a)       I undertake to the Court that I will supervise all of the time that the child, X born … 2011, spends with the father, Mr Belton, pursuant to the parenting order of the Family Court of Australia of 15 November 2019. The reason for supervision is to allay any residual concerns the mother may have about the child being at risk of sexual abuse from the father, despite the Court finding that there is no unacceptable risk of harm to the child.

(b)       In discharging my supervisory duties, I will ensure that the child does not spend any time with the father without me being within 5 metres distance and in eye sight of her at all times and I will immediately remove the child from the father’s care and make immediate arrangements for her to be returned to her mother’s care if I am unable to maintain such supervision for any reason or if I observe the father to be acting inappropriately towards the child, including by speaking with her or within her hearing about any aspect of these Court proceedings or in a derogatory manner about the child’s mother or any person from the maternal family.

(c)       I will not speak with the child, or the father, or any third person whilst within the hearing of the child about any aspect of these Court proceedings or in a derogatory manner about the child’s mother or any person from the maternal family.

(d)       I will immediately notify the mother in writing if I am no longer willing or able to supervise the child’s time with the father pursuant to the parenting order of the Family Court of Australia of 15 November   2019. Otherwise, I understand that my obligations pursuant to this Undertaking will continue until the Court, by order, releases me from this Undertaking.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Belton & Braim has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3195 of 2017

Mr Belton

Applicant

And

Ms Braim

Respondent

And

Independent Children’s Lawyer 

REASONS FOR JUDGMENT

1. These proceedings concern a little girl called X who was born in 2011. X’s parents are Mr Belton and Ms Braim and they are unable to agree about parenting arrangements for her.

2. X lives with her mother and has spent very little time with her father since her parents separated in late 2014. It is nevertheless apparent from recent observations made by a family consultant that X loves her father and delights in his company. Indeed, the mother maintains that she has always wanted X to have a relationship with the father.

3. For the reasons which follow I find that it is in the child’s best interests, in the circumstances of this case, to continue to live with her mother but spend regular time with her father, although, for a period, the time is to be supervised in order to allay any residual concerns held by the mother.

parenting proposals

1. The father proposes that the child live with him and spend alternate weekends and an overnight in the other week with the mother together with holidays. Additionally he proposes that he and the mother have equal shared parental responsibility,.[1]  The father conceded that he was only seeking an order that the child live with him as a “last resort” and that “in an ideal world” he would seek that the child spend alternate weekends and half school holidays with him.

   [1] The precise terms of the father’s proposal is set out in his amended Initiating Application filed 26 July 2017 save that the parties have agreed on certain ancillary orders set out in exhibit 17 (at paragraphs 11 – 14 and 16).

2. The mother proposes that the child live with her and spend supervised time with the father at a contact centre over a 12 week period and, upon certain conditions, the time increase gradually and be supervised by a mutually agreed supervisor until the child attains the age of 12 and, again upon certain conditions, the child commence to spend alternate weekends with the father. The mother also proposes that she have sole parental responsibility.[2]

   [2] The precise terms of the mother’s proposal is set out in her amended Response to Initiating Application filed 9 October 2019 save that the parties have agreed on certain ancillary orders set out in exhibit 17 (at paragraphs 11 – 14 and 16).

3. At the conclusion of the trial the independent children’s lawyer (“ICL”) recommended that the child continue to live with the mother and spend gradually increasing unsupervised time with the father, over a period of 48 weeks and thereafter, alternate weekends and holiday periods. Additionally, the ICL recommended that the mother have sole parental responsibility for major long term issues.[3]

   [3] The precise terms of the order proposed by the ICL is set out in exhibit 17.

Issues

1. The significant issues for determination in this case were identified with the assistance of the parties and the ICL as follows:

   (1)Whether the father poses an unacceptable risk of harm to the child by reason of the historic allegations made against him by Z;

   (2)Whether the mother has the capacity to provide ongoing care for the child and the circumstances surrounding her daughters, Z and Y, being cared for by others for significant periods;

   (3)Whether the father has the capacity to provide full time care for the child given his limited provision of parenting to date;

   (4)The impact on the child of a change in her primary care arrangements;

   (5)Whether the parties have the capacity to co-parent and make joint decisions;

   (6)Whether the mother will comply with court orders and whether or not she will facilitate time between the child and the father should the child remain in her primary care;

   (7)Whether allegations of family violence made by each party against the other impact upon either parents’ capacity to provide full time care for the child or to spend time with her.

Background

1. The father and mother are both 36 years of age. They lived together as a couple from 2011 until 9 December 2014. X is their only child together. The father has no other children. The mother has two other children, namely, Z who turned 18 after the trial and who lives with her paternal grandmother in Brisbane and Y aged 14 who lives with her father. Z and Y have different fathers. The mother has minimal if any contact with Z and Y.

2. The mother has an extensive history of contact with the Department of Child Safety, Youth and Women (as it is currently known in Queensland) (“the Department”) commencing in 2002 when she came to the attention of the Department over concerns raised about possible neglect of Z.

3. The mother also has an extensive history of mental health issues including auditory and visual hallucinations, depression, anxiety, and self-harm. She has been hospitalised on occasion for treatment.

4. Additionally, the mother has epilepsy which was first diagnosed in 2008. She has suffered and continues to suffer debilitating seizures, although it seems they have been less frequent in recent years.

5. The father has been in a relationship for about a year with Ms D although he and Ms D do not live together and there is no immediate plan to do so. Ms D was not a witness in the father’s case but was present in court throughout the trial. Ms D works in community services. She does not have any children and has not met X.

6. The father currently lives with his mother, who is undergoing treatment related to cancer. The father has qualifications in science but was made redundant from his position in February 2018 and has not worked since then, other than some contract work. He proposes to return to work once these proceedings are finalised. The father currently pays $35.00 per month in child support.

7. The mother has been in a relationship for about four years with Mr C. Although she and Mr C do not live together, he frequently stays overnight at the mother’s home and they plan to live together. Mr C was not a witness in the mother’s case but was present in court throughout the trial. Mr C has three daughters aged 17, 15 and 12. He and his children know X well and Mr C has cared for X on occasions when the mother has been hospitalised after she has suffered a seizure.

8. The mother lives in rental accommodation with the child. A recent change in accommodation resulted in the child changing school. The mother is not employed and receives Centrelink benefits. The mother volunteers at a local community group.

Applicable legal principles

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[4]

   [4]Family Law Act 1975 (Cth), s 65D.

1. A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:

   a)The person or persons with whom a child is to live;

   b)The time a child is to spend with another person or other persons;

   c)The communication a child is to have with another person or persons; and

   d)The allocation of parental responsibility for a child.

2. The objects and principles of Part VII of the Act are set out in s 60B (1) and (2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.

3. In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).

4. The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family etc. (s 60CC).

5. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).

6. Family violence is defined in s 4AB and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.

7. In cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding” and proof to the reasonable satisfaction of the court “should not be produced by inexact proofs, indefinite testimony or indirect inferences”.[5] Where it is not possible to positively reject an allegation as groundless the Court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[6] The components which go to make up a finding of unacceptable risk “need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard” although “a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof”. ^[7]

   [5] M & M (1988) 166 CLR 69 citing Briginshaw v. Briginshaw (1938) 60 CLR 336 at 362 (Dixon J).

   [6] M & M (supra); N and S and the Separate Representative (1996) FLC 92-655.

   [7] See Johnson & Page (2007) FLC 93-344 at [68], [71].

8. The Court is not required to make findings of fact on every factual dispute raised by the parties.[8] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive determination” on each and every factual dispute.[9]

   [8]Baghti & Baghtiand Ors [2015] FamCAFC 71.

   [9]M & M (1988) 166 CLR 69.

9. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.

10. Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any Order made by the Court (s 61C).

11. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

12. Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).

13. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).

14. Although I may not specifically discuss in these reasons each subparagraph of each relevant section I have considered all sections as required when making my determination.[10]

    [10]Banks & Banks (2015) FLC 93-637.

15. I turn now to consider the significant issues in the context of the applicable law.

Whether the father poses an unacceptable risk of harm to the child by reason of the historic allegations made against him by Z

1. On 25 November 2014, Z alleged that the father had inappropriately touched her on two occasions on the outside of her underpants. The first occasion was said to have occurred during a family camping trip on an unspecified date and the father is alleged to have warned Z not to tell anyone (“the tent incident”). The second occasion was said to have occurred a couple of days prior to Z running away from home on 10 November 2014 and allegedly involved the father rubbing his middle finger against the child’s vaginal opening on the outside of her underpants while she was lying on a couch (“the couch incident”). Z also alleged that the father had looked at her in the shower (“the shower incident”).

2. As noted, Z was a minor at the time of the trial. She lives in Brisbane, apparently with her paternal grandmother, and the mother says she is in touch with her from time to time. Although her allegations are central to a significant issue in these proceedings, no application was made for her to give evidence in the proceedings pursuant to s 100B of the Act. I am of course not privy to the reasons for that, although I note that Z has had a very unstable and troubled life to date.

3. Z commenced to live with her maternal grandparents permanently when she was six years old and rarely saw her mother for the next two or three years. She also lived with them for three months in or about 2005. In 2011, Z commenced spending holidays with the mother. The mother instituted proceedings in the Federal Circuit Court against her parents in 2012 and on 2 October 2012, a final parenting order was made by consent which provided for Z to return to the mother’s care at the end of 2013. As it transpired, the move occurred a year earlier, in December 2012, given the strength of Z’s desire to live with the mother.

4. A report from Z’s counsellor dated 10 September 2012 outlined a history of Z struggling with feelings of anger and abandonment. Z had commenced to see the counsellor in November 2010. Z was observed to have feelings of low self-worth and was self-harming. Prior to her re-introduction to her mother, her counsellor noted some significant improvement in Z’s psychological functioning and her self-harming behaviours had ceased. The process of re-introduction with her mother was a very difficult time for Z with a return of many of her earlier feelings and behaviours.

5. In a psychological assessment undertaken in September 2012, Z was assessed with high levels of depression and anxiety and high levels of confusion, frustration, distrust, and fear. A change in her primary living arrangements was not recommended and an escalation of her symptoms was predicted if the change occurred. Unfortunately, by the end of the year, Z had moved to Brisbane to live with her mother. She left behind all of her support network, including her counsellor. It seems likely that the maternal grandparents found Z’s behaviour extremely challenging in circumstances where she was stating with vehemence her desire to live with her mother.

6. Within a couple of months of Z commencing to live with her mother she was unhappy and wanted to return to live with her maternal grandparents. Z and the mother clashed and had frequent arguments. Z spent the Easter 2013 holidays with her maternal grandparents and was in such a “state” according to the maternal grandmother that they arranged for her to see a counsellor. Z did not want to return to the mother but the maternal grandmother felt her hands were tied given the court order. The maternal grandmother nevertheless made a complaint to police about Z’s treatment in the mother’s home. Z was interviewed by police on 9 April 2013. The child complained of being smacked three or four times by the mother for getting a C- in her school test. Z said that upon her becoming upset, the father also smacked her. She said that she had been left at home alone after school until the father arrived home from work at 6.00pm. The mother was interviewed by police and admitted to smacking the child but denied it was excessive. She also admitted to leaving the child alone but by the time of the interview she had made other arrangements for the child to be supervised by an adult. The police took no further action. Relations between the mother and Z continued to worsen with a diary entry by Z on 24 May 2013 describing her mother as “like a beast from hell”.   

7. During the trial, the mother conceded that during the period from April 2013 until November 2014 Z frequently said she wanted to return to live with the maternal grandparents. As predicted in the September 2012 psychological assessment, Z found the transition to her mother’s home overwhelming and her challenging and concerning behaviours returned. Z was also exposed to her mother’s seizures, which I have no doubt would have been very upsetting for Z. The mother was hospitalised on a number of occasions when Z was living with her. Z undertook a young carer’s program because of the mother’s condition and during a number of months her assistance was more significant because the mother was on crutches after injuring herself during a seizure.

8. Prior to 25 November 2014, Z’s major criticisms were directed towards her mother, although the father was on occasion the subject of minor complaint by Z.

9. The mother denies the allegations made against her by Z i.e. that her discipline had been excessive; that Z provided most of the care for X; that Z was smacked for getting a C-; that Z’s chores were excessive; and that she had force fed Z. While the mother conceded that she had admitted to smacking Z on one occasion when interviewed by police, she categorically denied the smack related to Z’s school results.

10. On 10 November 2014, Z ran away. She stayed with a school friend’s mother, Ms N. The maternal grandparents travelled from their home in central Queensland to South East Queensland and took Z to the police station. The relationship between the maternal grandparents and the mother was at an all-time low by this stage and Z was very much caught in the middle of it.

11. Z was again interviewed by police on 13 November 2014. Z complained bitterly about the chores she was forced to undertake at her mother’s home and the punishments she was subjected to e.g. walking around the outside of the house for excessive periods. She described the mother as evil and also accused the father of kicking her once. Z made it very clear she wanted to return to live with the maternal grandparents but said her maternal grandmother and mother had a “seriously bad relationship and I get to see it all”. Z was told by police that she was not able to go to her maternal grandparents because of the court order. The mother suffered another seizure on 13 November 2014 and was hospitalised, so Z returned to Ms N’s home.

12. On 18 November 2014, Z was interviewed by child safety officer (“CSO”) Ms E at the home of Ms N. Z refused to return to her mother. Z made what the CSO described as “vague allegations” against the father suggesting that he was “creepy” and had rubbed her back and squeezed her bottom. It seems that Z may also have told Ms N that the father looked at her in the shower.

13. During an interview between the CSO and the mother on 19 November 2014, the mother said that she did not have any concerns about the father and could not believe the father had the opportunity to touch Z. She said that Z can be very “touchy-feely” and the father had to push her away at times. The mother suggested that Z had been coached into making false allegations by the maternal grandparents.

14. On 21 November 2014, the CSO spoke to Z’s school guidance officer, Ms F. Ms F said that she had spoken to Z before and her concerns were all “very low level” and Ms F did not think they would reach a child safety threshold. Most of her complaints concerned chores at home.

15. Z was again interviewed by police on 25 November 2014, also in the presence of the CSO. At the time of the interview Z was upset and did not know where she would be living. Z’s disenchantment with her mother was made very clear. Z said that her mother had promised her many things if she came to live with her but she had not fulfilled her promises except for taking her to Dreamworld. Z referred to her mother as “crazy”.

16. Z accused the father of throwing a shoe at her once and that he was “really inappropriate … like when he hugs me he like squeezes my bottom and like trails his fingers down my back and like he’s watched me in the shower before”. When asked about when the father watched her in the shower she said she did not know when it was or even if it was that year. She thought he had only done it once when “he was changing X’s nappy and he just like turned around … like looked me up and down”. She said “I was naked in the shower so it was like really creepy and then he just like smiled and shook his head and walked out with X”. Z denied that there was any sort of shower screen. Z was asked if anything else inappropriate had ever happened and the following exchange occurred:

    Z: can you promise X won’t get hurt or anything

    Officer: definitely X won’t get hurt

17. Z then described an incident that allegedly occurred when the family were camping. She said that she was sleeping in a separate tent to the mother, father and X and was awoken by the sound of the zipper to her tent and saw the father just standing there. She said he lifted her pants up and put his hand on her “belly” just below her “belly button”. She said that she tried to kick him and he said “don’t tell anyone about this or I’ll do something to X and you won’t like it and you may not ever see her again”.

18. Z proceeded to describe another incident which she said occurred a “couple of days before I ran away”. She said it was the Saturday and she was sleeping on the lounge because it was hot. She said that she woke up “and his hand was like on my undies” and “I screamed” and “[the father] just looked at me and he just like got up and walked into his room like nothing happened”. Z said her mother was not there because she was visiting her “nan nan”. With further questioning, Z said that the father’s hand was on the outside of her underpants but inside her pyjama pants. She was asked if his hand was doing anything and she said – “like he was moving like that with his middle finger” and demonstrated the movement with her hand between her legs and says “on the little holey thing”. When asked if she meant where the “wee comes out”, Z shook her head and said “that’s a different thing … it’s like the thing that like in your reproductive system where the penis enters”. Z said that she had never told anyone about this before because she was scared for X and that she had already lost a sister and did not want to lose another one.

19. When asked why she had run away, Z said things had been building up – “the force feeding, the punishments, everything. All the jobs. Everything”. The final thing that occurred before she ran away was a fight with the mother over chores and being told to walk around the house five times. Towards the end of the interview when it was clear the police officer was winding it up, Z said there was “one other thing”. She then recounted an incident when she was made to wash everything in the dishwasher and by the time she had finished her pasta was cold but “they like force fed me. Like [the father] held my mouth. Mum shoved the fork[11] into my mouth and I like threw up in [the father]’s hand and he made me eat it. My puke. And then I just like kept throwing up till I stopped and I got grounded for something I don’t even really know what I did wrong really”. Z said she had been force fed before but that this particular incident occurred a couple of months ago.

    [11] On listening to the recording the reference to the mother is made although it does not appear in the transcript.

20. Z continued and said that when she was eight or nine the mother told her that the man she thought was her father (Y’s father, Mr Q) was not her father and that her real father was a rapist and a drug dealer. Z refuted those allegations against her father. Z then recounted an incident where she and Y were playing and Mr Q yelled at the maternal grandmother and then became really angry with Z and said that she would never be his daughter. Z was quite distressed throughout much of the interview.  

21. The father denies all allegations made against him by Z and refutes with great specificity each particular of the alleged incidents.

22. During cross-examination, the mother, rather unconvincingly, sought to corroborate some of the allegations made against the father by Z. She said Z had told her she did not like the way the father looked at her and that it was creepy. She also said she had a vague recollection of the father grabbing Z’s cheeks to force feed her. The mother conceded that she had never said either of these things to anyone before.

23. On 25 November 2014, the mother signed a safety plan with the Department pending ongoing investigation of Z’s allegations against the father. The plan was said to be necessary because of the “risk of harm due to sexual abuse allegations”. The mother was required under the safety plan to supervise X and be with her at all times while at home. The mother agreed to Z continuing to live with Ms N in the interim.

24. On 1 December 2014, the mother informed the Department that she had considered the possibility that Z was being honest about having been sexually abused but could be lying about the perpetrator. She said that Z had made sexual abuse allegations about the maternal grandfather before and that she also considered her brother as a possible perpetrator because he had been sexually abused as a child. The mother said that Z had said to her “if I just do what nanny says, things will be ok”. During the trial, the mother said she could not recall telling the Department the matters attributed to her but accepted that she must have. The mother denied any knowledge of Z making a complaint of sexual abuse against the maternal grandfather and specifically denied Z ever making such a complaint to her. The mother maintained that her brother had been sexually abused as a child by a family acquaintance.

1. During the trial, the maternal grandmother denied that Z had ever made allegations of sexual abuse against the maternal grandfather. She also denied that her son had been sexually abused, contradicting the mother’s evidence. In 2009, there was a notification received by the Department alleging that the maternal grandfather made Z “pee” on the grass and that the child tried to pull her skirt down so the grandfather could not see. The maternal grandmother, during cross-examination, denied that such an event occurred. Another notification claimed that Z was observed to be putting her hands inside her pants and grabbing and fondling boys on the buttocks. It appears that the notifications were treated as ‘concern only’ reports.

2. The records for R State High School include a note of a conversation between the school and the maternal grandmother on 31 July 2017, which included a statement attributed to the maternal grandmother that Z “has lied about her interactions between her and her grandfather” and that she would no longer be welcome back in their home. When asked about this during the trial, the maternal grandmother said that Z had been “telling a few stories to the school that she was made to do this and made to do that”. Her answer did not specifically address any allegation made against the maternal grandfather. The maternal grandmother denied that Z was ever abused in their home. The maternal grandmother said that, at this time, Z had been abandoned by her biological father and “dumped” back on them. She put Z’s acting out behaviour at that time down to her being abandoned again.

3. The mother and father separated on 9 December 2014 when the mother moved out with X telling the father that the separation was temporary. The father moved to Suburb P in Brisbane, a move that had been planned for the whole family prior to Z running away. The mother initially stayed with a friend and later obtained a series of rental accommodation.

4. Z did not return to live with her mother. It appears that Z initially lived with her biological father, Mr G. According to police records, Mr G has an extensive criminal history involving driving offences, breach of a domestic violence order, numerous stealing offences, frauds and property offences, unlawful use of vehicles, drug offences etc. Mr G also had two other children in foster care aged five and three.

5. Understandably, given that history, the mother was vehemently opposed to Z living with Mr G, whom she accused of raping her and of being a drug dealer.

6. It also seems that Z fell out with her maternal grandmother in late 2014 because of her opposition to Z living with Mr G. At one point the relationship was so poor that the maternal grandmother cancelled Z’s telephone plan, which the maternal grandmother had been paying for up to that point. 

7. Despite Mr G’s history and the fact that Z had never met him prior to her running away, Z commenced to live with Mr G with the approval of the Department. The CSO with responsibility for Mr G’s other children provided information to the CSO that Mr G’s recent drug tests had been clear and that he was having unsupervised time with his other children. Z lived with Mr G for a time in Brisbane and then in Town AA, North Queensland before returning to live with the maternal grandparents in about 2016. It seems Z again left her maternal grandparents’ home in 2017. She is now living in Brisbane, apparently with Mr G’s mother i.e. her paternal grandmother, Ms H.

8. On 7 January 2015, the father was advised by the Department in writing that the “outcome of the investigation was ‘substantiated’ for emotional harm caused by sexual abuse”. It was also assessed that Z had suffered further emotional harm due to “maternal family conflict and inappropriate statements to Z”. The letter also noted that a further investigation may be warranted if the father and mother commenced to live together again with X.

9. The father was not interviewed by police or the Department in relation to Z’s allegations, with the father maintaining that the Department did not arrange an interview once he said he wanted to have his solicitor present. This is disputed by the CSO who maintains that the father refused to be interviewed. No charges were brought against the father and the result of the police investigation is recorded as – “matter unfounded, highly doubtful offence occurred”. A successful conviction was considered unlikely given that the only witness was Z, and the mother told police the offence could not have occurred because there was no opportunity for it to have occurred as alleged.

10. It must be observed that whether or not criminal proceedings were instituted is not determinative of the assessment of risk to X.

11. Given the father’s denial of the allegations it is perhaps understandable that he is outraged by the ‘substantiated’ outcome of the investigation by the Department. The father was not provided with particulars of the allegations against him for some years. The ‘substantiated’ outcome seems to rest almost entirely on the fact that the allegations were made by Z and the opinion of the CSO that it is “not common” for children to lie about such matters. The fact that Z may have been mistaken about details such as when the alleged incident occurred was dismissed by the CSO because of her view that children are “poor witnesses” who are “not good at remembering things in detail or in sequence”. She considered it significant that Z was able to provide detail about things such as what she was wearing. The CSO maintained in cross-examination that she believed Z had experienced emotional harm from her experience of being inappropriately touched by the father.  The CSO holds a degree in psychology from BB University which she attained in 2004 but has not undertaken any further study or formal training since that time. She has been employed with the Department for 13 years.

12. During the two years following the allegations, the father embarked upon a campaign aimed at overturning the ‘substantiated’ outcome made by the Department. The Department acknowledged that their processes could have been better but, despite the father pursuing every available means of appeal, complaint and investigation, the Department has not changed the outcome of their investigation. Notwithstanding the Department’s position, The CSO said during her evidence, that if an order were made by this Court for the father to spend unsupervised time with X, the Department would be unlikely to take any action in circumstances where so much time has now passed, the father has no criminal history and has not been prosecuted for any offence arising out of the allegations.

13. I want to stress that the primary focus of this Court is not to determine the veracity of the allegations made by Z. Rather, the Court’s primary focus is what parenting order may be in the best interests of X. In my view, this is not a case where a positive finding of sexual abuse could safely be made given the unsatisfactory state of the evidence i.e. Z was not a witness available for cross-examination and her allegations may have escalated given her desperation to leave her mother. Nevertheless, I am unable to dismiss the allegations as groundless given Z’s unequivocal statements. Accordingly, it falls to the Court to assess and evaluate the magnitude of the risk to X by reference to all available evidence.

14. Turning then to consider the particular allegations against the father in more detail. If the couch incident did occur it could not have occurred, as Z alleged, on the Saturday before she ran away. It is common ground between the mother and father that there was no opportunity for the incident to have occurred that weekend because Z was not home. This is also corroborated by Ms N in an interview with the CSO on 11 December 2014, who said that Z stayed overnight at her home that weekend.

15. The mother now contends that Z may have the weekends mixed up and says that she was visiting her grandmother the weekend before the one Z refers to.  In an attempt to corroborate her contention that she was away the weekend before, the mother relies upon what she says are ‘posts’ she made on Facebook where she refers to having visited her grandmother that weekend (see exhibit 16). It is impossible to determine the authenticity of the Facebook entries, which were not disclosed until trial, and it does not appear that the mother mentioned this visit to her grandmother to anyone at the time of the investigation or subsequent thereto (until this trial).

16. The father contends that he made a conscious decision to never be alone with Z because during the parenting proceedings between the mother and the maternal grandparents, the maternal grandmother called him a “paedophile”. The father first made this specific claim during his oral evidence, although he does say in his affidavit that the maternal grandparents had claimed he was capable of sexual abuse. The allegation that she called him a paedophile is denied by the maternal grandmother and the mother does not have any recollection of it. Significantly, the family report prepared for those proceedings makes no reference to any issue of this nature being raised by the maternal grandparents. It also seems unlikely that the maternal grandparents would have consented to an order that Z live with the mother and father if they had concerns of this nature.

17. The mother made a further attempt to create the impression that the father had the opportunity to sexually abuse Z by initially suggesting during her oral evidence that Z was alone with the father every Tuesday and Thursday while she was attending meetings. Later in her evidence, the mother had to concede that her claim was greatly exaggerated because there were substantial periods when she did not attend the meetings. The father conceded that there were occasions when he was alone with both children (but not Z alone) and says this occurred only in public places or on the way to public places e.g. when driving to Dreamworld. The father’s claim to have never ever been alone with Z in the two years she lived with him seems somewhat unlikely but the allegations against him relate to three specific incidents, namely, the couch incident (discussed above), the tent incident, and the shower incident.

18. In relation to the tent incident, Z was unable to identify when or where the alleged incident occurred. The father says that there was no camping trip proximate to the time the allegations were made. He says that when they did go camping, Z never slept in a separate tent but on one camping trip she had what he said was a play tent that was about one to one and a half metres in length and certainly too small for him to enter. He said the play tent was destroyed very shortly after it was purchased when it was left out in the rain. The father contends that he never slept in a tent but rather in a hammock. When the mother was interviewed by the Department on 9 December 2014, she said that there had been a number of camping trips and that Z usually had her own tent while she and the father and X slept in one tent. She said that she recalled only one camping trip when the father slept in a hammock. She was not aware of any incident as described by Z and could not recall the father getting up in the night and going to Z’s tent. Both parents state that Z went camping with the maternal grandparents. The maternal grandmother denied that anyone slept in tents when they camped but rather in camper trailers.

19. The shower incident is the vaguest of the allegations. Although denied by the father, it seems tolerably possible that if he needed to change X’s dirty nappy he may have entered the bathroom while Z was in the shower. The father and mother both agree that there were two bathrooms. One in the main section of the house which Z used and one in the ensuite which was used by the parents. The father denied that there was a change table in Z’s bathroom stating that, because of the mother’s epilepsy, X was only changed on the floor. Z says that the alleged incident, which involved a ‘look’, happened only once.

20. In my view, it is significant to consider the background and context in which the allegations were made against the father, which included:

    a)During 2008 to 2012 Z felt abandoned by her mother and had seen little of her for a number of years prior to 2011;

    b)In about 2010, Z had become aware either intentionally from her mother or maternal grandmother or unintentionally after hearing a telephone message from her mother left for the maternal grandmother, that the person she thought was her father was not her father and that she had been the product of an alleged rape of her mother by her biological father;

    c)Z had been desperate to live with her mother in 2012;

    d)After moving to her mother’s home Z felt let down by her mother, whom she felt had not fulfilled her many promises of what life with her would be like;

    e)Z became desperately unhappy living with her mother from about March 2013;

    f)Z’s allegations became more serious as time went on and only after she was repeatedly told she could not leave her mother;

    g)The  allegation of sexual abuse was not made until 25 November 2014 despite ample opportunity to disclose to people the child apparently trusted, e.g. Ms N, the CSO, the maternal grandmother (prior to the falling out), the school guidance officer and no allegation was made to police officers during two previous interviews;

    h)Z had not shown any reticence in disclosing her complaints about living with the mother e.g. she made a number of complaints to the maternal grandmother as early as March 2013, she complained to the guidance officer at school on a number of occasions, she complained to Ms N, she complained to police and the CSO; and

    i)Z had been told that she could not return to live with her maternal grandparents because of the court order.

21. Other factors which I consider relevant to the assessment of risk include:

    a)Each of the mother, father and maternal grandmother deny allegations made by Z against them;

    b)Z presented as desperate to return to her maternal grandparents and was full of praise for them during interviews;

    c)The maternal grandmother says that Z told ‘stories’ about being at risk in their home when she was unhappy about the rules she was required to abide by; and

    d)Z was a deeply troubled child who had significant psychological issues;

    e)Z was quite distressed when disclosing the allegations against the father but given the circumstances in which she found herself, her distress would have been understandable for reasons other than the nature of the disclosures made.

22. While the experience of the CSO may well be that it is not common for children to lie about sexual abuse, it certainly cannot be ruled out. The fact that Z may have been incorrect about the date on which the couch incident occurred cannot, in my view, be dismissed as easily as suggested by the CSO. Z was 13 at the time of the interview, old enough I would have thought to reliably state whether something had occurred two days prior to her running away on 10 November 2014, as she did. The fact that both parents said it could not have occurred on that weekend is significant because the mother would certainly not be saying that now unless it were true. It is also corroborated by Ms N.

23. I want to make it clear that by identifying Z’s background, the context, and the various factors above I am not intending to reject outright the allegations Z has made. Rather, the matters identified go to the weight of the evidence and, in turn, the magnitude of the risk to X if she spends unsupervised time with her father.

24. It is beyond question that sexual abuse of a child is the most heinous of crimes and likely to cause lifelong emotional and psychological damage. That is why it is so important to assess and evaluate the evidence as a whole and not simply individual pieces of the evidence.

25. The Full Court recently reviewed the role of the Court in assessing risk in Bant & Clayton[12] and said:

    [12] [2019] FamCAFC 198.

    38.  In M v M (1988) 166 CLR 69 at 78 (“M v M”) the plurality of the High Court considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child and said:

    Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. … courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, 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. To achieve a proper balance, the test is best expressed by saying 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.

    39.  It is to be remembered that the concept of “unacceptable risk” referred to in M v M was within the framework of resolving “the wider issue” namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at 76; B and B (1993) FLC 92-357).

    40.  The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment.  As the High Court said in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at 218:

    151.       …Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. …

    41.  As long ago as 1995, in N and S and the Separate Representative (1996) FLC 92-655 at 82,713 – 82,714, Fogarty J said of this determination:

    Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.

26. The Full Court went on to stress the importance of the whole of the evidence in assessing risk and said:

    51. The conclusion of the existence and magnitude of a risk was based on all of the facts and circumstances to which his Honour referred.  It would not be proper to approach that task by analysing each fact or circumstance to see whether that particular fact would support the conclusion to which his Honour came, in the words of counsel for the father, to “atomise” that evidence (see Shepherd v The Queen (1990) 170 CLR 573; R v Baden-Clay (2016) 258 CLR 308). Rather, it was a conclusion formed by a consideration of all those aspects taking into account the necessary elements of prediction and assumptions about the future to which the court spoke in CDJ v VAJ.

27. Mindful then of the need to consider all relevant evidence in the assessment and evaluation of the magnitude of risk, I also take into account the sheer delight that X has exhibited whenever she has spent time with her father and her wish to have a relationship with him. The relevance of this evidence is that in weighing up the risk of harm to the child from possible sexual abuse, I also need to take into account the benefit to the child of having a relationship with the father and any risk to the child of being deprived of a parent whom she loves. If the child does not have a relationship with her father she may well feel abandoned or rejected as indicated by her question to the father in June 2019 – “why did you stop seeing me”? The father was entirely appropriate in his response to the child when asked this question and also in all of his observed interactions with the child, whom he clearly adores. The damage experienced by a child who feels abandoned is starkly demonstrated in this case by Z’s years of struggle.

1. I also take into account that the mother initially, at least, encouraged and permitted the father to spend time X, on occasion unsupervised.

2. Ms J, the family report writer, identified two other matters worthy of consideration, namely, that:

   [T]he father is aware of Z’s allegations and [the mother’s] vigilance in relation to [X’s] safety, … this must be considered a protective factor. Further, X has also been made aware of the importance of protective behaviours and has [the mother] and other supports, such as her school teacher, to talk to should she have any concerns.

3. For the reasons discussed above I conclude that, on balance, the risk of sexual abuse is low and therefore not unacceptable.

Whether the mother has the capacity to provide ongoing care for the child and the circumstances surrounding Z and Y being cared for by others for significant periods

1. There is certainly ample evidence that, historically, the mother struggled with mental illness, including depression and anxiety, and that she complained of auditory and visual hallucinations and suicidal ideation. The mother’s medical records indicate that the last occasion the mother experienced hallucinations was in 2007, prior to her being diagnosed with epilepsy. The last occasion the mother admitted to suicidal ideation was 2010.

2. In my view, it is relevant when considering the mother’s history to note that she became a mother at a very young age, namely, 17 and was experiencing significant health problems, which understandably caused her distress. She did not know what was wrong and perhaps unsurprisingly, she was also suffering from depression. It was during this time, i.e. 2007 to 2008, that the mother relinquished care of Z (then six years old) and Y (then three years old) to the care of others in circumstances where she could not provide adequate care for them. Of course, the relinquishment of her children was not solely related to her health issues. The mother had been in a number of relationships and had moved house numerous times. Her life was erratic and unstable and after surrendering her children she made very little effort to maintain a connection with them.

3. Since 2008, the mother has been hospitalised on numerous occasions as a result of suffering epileptic seizures. The episodes of these seizures, while less frequent in recent years, continue to occur. As a consequence, the mother is not able to drive. When Z lived with the mother, she relied on Z to provide assistance when she suffered seizures, a no doubt daunting task for a young girl. The mother currently relies on X and, curiously, seems to think that the child relishes the responsibility. The mother does seem to lack some insight into the effect that such a responsibility would have upon a child. Certainly, Ms J was left with the clear impression that X was troubled by this responsibility.

4. In June 2012, a family report was prepared for the proceedings between the mother and the maternal grandparents. The report writer was a very experienced social worker with extensive experience in both child safety and family consultancy. There was no concern raised in that report about the mother’s mental health.

5. The mother sought appropriate support in 2012 from family support services in relation to issues she was experiencing in her relationship with the father, and in her relationships with her parents and Z, and her new baby, X. The mother undertook counselling through a mental health care plan. There is no evidence in the records from the various support services raising any concern about the mother’s parenting capacity by reason of any mental illness.

6. There have been two family reports prepared in the current proceedings by two different family report writers. In October 2017, Ms K prepared a report. Ms K is a family consultant employed by the Court and has qualifications in psychology and social work. She also has extensive experience in child safety and has worked in a community mental health service. Ms K did not raise any concern about the mother’s mental health.

7. The most recent family report was prepared by Ms J after interviews on 6 June 2019. Ms J is a psychologist employed by Legal Aid Queensland.  

8. The mother told Ms J that she was suffering from anxiety over the litigation and also due to her epilepsy and was seeing a psychologist under a mental health care plan. The mother also mentioned possible post-traumatic stress disorder but there is no evidence that the mother suffers from such a disorder. Unfortunately, the mother, who represented herself in these proceedings, did not produce any evidence from her treating psychologist, but I note that Ms J did not identify any mental health issues that would affect the mother’s parenting capacity.

9. The most significant factor affecting the mother’s parenting capacity appears to be her epilepsy. Ms J opined:

   126. While it is not ideal for X to be aware of her mother’s seizures, and worried about them, and to sometimes be cared for by others, currently this is a rare event, and [the mother] appears to be quite adequately caring for X and providing her with a structured routine.

   127. Therefore, in my opinion, the risk that [the mother] may be unable to adequately care for X due to her medical and psychological issues is low.

10. The mother has the support of her partner, Mr C, and he has stepped in to care for X when required. The independent evidence from X’s school, the family reports, and the recent family consultant report support a finding that X is currently well cared for by her mother.

Whether the father has the capacity to provide full time care for the child given his limited provision of parenting to date

1. The father’s parenting is largely untested. He has no other children. He worked full time when the parties lived together and he has spent very little time with X since December 2014. These are significant factors to consider when determining this issue. 

2. The father is also caring for his apparently very ill mother.

3. I also have grave concerns about the father’s ability to focus on the child’s needs rather than his own. The history of this case demonstrates, rather disappointingly but perhaps understandably, that the father has focused on issues that affect him rather than the child. During most of the period from mid-2015 to 2017 the father was more intent on clearing his name, as he saw it, than seeing his child.  I reject the father’s contention that his failure to spend time with X during this time was due entirely to the mother’s failure to facilitate time. Rather, the father made a choice. Indeed, the father conceded that he followed advice to prioritise the issue with the Department over spending time with the child. The father’s sister, Ms B Belton, provides some corroboration to the mother’s version that her repeated attempts to facilitate time between the child and father were ignored by the father. Ms B Belton said that the mother frequently asked her to get the father to contact her about the child spending time with him.

4. In 2017, the parties reached an agreement for the father to spend time with X including overnight at the paternal grandmother’s home. When the agreed dates came to an end, the mother tried to arrange ongoing day time contact because she felt the overnight time had occurred too quickly for the child and caused her to become upset. She made a very clear proposal for the continuation of time but the father did not take up that offer, preferring to insist on overnight time. The consequence of this stalemate was that the child did not see the father at all for a significant period.

5. For a considerable period the father had the opportunity to communicate with the child if he called the phone the mother asked him to rather than call her phone. He refused to do so. The father also had the opportunity to spend supervised time with the child at a neighbourhood centre arranged by the mother. The father’s reasons for refusing the offer seem incongruous with a father desperate to see his child.

6. At the commencement of the trial, the father pressed an application that the mother be dealt with for contempt of previous orders about filing material and registering with a contact centre. While on one level I completely understand the father’s frustration, his insistence on pursuing the mother in order to make her accountable seemed self-focused rather than child-focused given that the parenting trial was about to start. His application was dismissed on technical grounds.

7. The combination of the factors identified above cause me to have considerable doubt about the father’s capacity to provide full time care for the child.  

The impact on the child of a change in her primary care arrangements

1. The child has spent all of her life with her mother. They have been observed by all three experts who have provided reports in these proceedings to have a close and loving relationship. In June 2019 the child was noted to demonstrate “genuine anxiety at being separated from [her mother] throughout the day of interviews”.  In Ms J’s view, “X would struggle to manage more than a half a day away from her mother … and time spent with her father would need to start at a few hours, and increase incrementally”. She also opined that X “may struggle to be away from her mother overnight”.

2. The father demonstrated little insight into the likely impact on the child of a change in her living arrangements. Not only has the child spent very little time with the father over the last five years, the father proposes that the child live with him and his very ill mother, who is undergoing treatment for breast cancer. The father is his mother’s carer at present. The combination of the father’s lack of insight, his mother’s ill health, and the child’s existing anxiety at being away from her mother cause me to find that the risk of emotional and psychological harm to the child in removing her from her mother would be significant.  

Whether the parties have the capacity to co-parent and make joint decisions

1. The father presses his application for equal shared parental responsibility. It is not apparent to me how these parents could communicate about major long term parenting decisions, let alone come to a joint decision.

2. I accept the mother’s evidence that communication with the father causes her anxiety. It is little wonder, in my view, that the mother has this reaction given the father’s belligerent harassment of her as recently as 23 September 2019. Over a period of five hours commencing at 3.15pm, the combined phone calls, emails and text messages from the father to the mother totalled 35 and only ceased when a phone call was intercepted by a police officer who told the father to stop.

3. On review of a number of the emails, I note the mother’s consistently polite requests for the father to call the child on a number other than the child’s own number due to there being no reception. The father’s responses persist in taking issue with everything said by the mother, effectively calling her a liar and threatening to pursue her for costs. Notwithstanding the following email to the father:

   X has been waiting for 25 minutes and is not wanting to continue waiting for you (sic) call. She is wishing to play with her cousins. She is incredible disappointed that you chose not to call.

   Although she did voice that you probably won’t

   he still did not call the child on the phone number provided. He was absolutely correct to concede during the trial that his behaviour was petty but more than that, it is yet another example of him failing to put the child’s interests above his own.

4. Another issue of contention between the parents is that the mother has requested the father not give dairy products to the child. The father rejects outright the need to restrict the child’s diet. He says he does not trust the mother. The mother has failed to produce any medical evidence to support her contention that the child should not have dairy and resisted an order that she obtain a medical assessment, contending that such an assessment would be painful for the child. Such is the level of enmity between the parties that it seems inevitable that an order will need to be made for the mother to obtain a medical report to support her request.  

5. Yet another reason why I do not consider that the parents have the capacity to make joint decisions is that the mother says she now believes that the father sexually abused Z. She says that she has formed this view after having viewed the video of Z’s interview with police on 25 November 2014 (the mother had not watched it before the trial despite being ordered to do so in the lead up to the trial) and CSO’s opinion that Z was telling the truth.

6. The parents could not even agree on what web-based communication application to use.

7. Unfortunately for the child, the parents currently have no capacity to make joint decisions and it would not be in the child’s best interests for them to have equal shared parental responsibility. Accordingly, an order for sole parental responsibility will be made.

Whether the mother will comply with court orders and whether or not she will facilitate time between the child and the father should the child remain in her primary care

1. The father has legitimate reason to doubt that the mother will comply with future court orders. The mother has failed on numerous occasions to comply with court orders as the orders themselves demonstrate:

   a)On 20 July 2017, the mother was ordered to file and serve a Response to the father’s Amended Initiating Application by no later than 25 August 2017. The mother failed to comply with this order;

   b)On 29 March 2018, the mother was again ordered to file and serve a Response to the father’s Amended Initiating Application. The mother failed to do so. The mother was also ordered to serve a copy of the material she had filed on 28 March 2018. The mother failed to do so;

   c)On 9 July 2018, a further order was made that the mother file and serve a Response to the father’s Amended Initiating Application within 28 days. The mother failed to do so;

   d)On 19 July 2018, the mother was ordered to register within 14 days with the first available agreed contact centre and complete the required intake interview and attend to all other requirements of the contact centre to facilitate supervised time between the child and the father. The mother failed to register with the agreed contact centre;

   e)On 21 August 2018, the mother was ordered to contact W Group and register for intake within 7 days. The mother failed to do so. The mother was ordered to file a complete and executed copy of her affidavit filed 28 March 2018 within 14 days. The mother failed to do so. The order noted that the mother had not contacted any contact centre but asserts she is unable to travel to Suburb S or Suburb T;

   f)On 10 May 2019, the mother failed to appear for the hearing of the father’s contempt application and a warrant issued for her arrest to lie in the registry pending her filing an affidavit within 7 days explaining her failure to appear. The mother did not file the affidavit by the required date; 

   g)On 12 June 2019, the mother was granted an adjournment of the hearing of the contempt application. The warrant was discharged and the mother was granted an extension to file her affidavit until 26 June 2019. The mother did not file the affidavit by the required date; and

   h)On 26 August 2019, the mother was represented by counsel and was again ordered to register with W Group forthwith. The mother finally did so on 5 September 2019.

2. On 31 July 2019, the mother, who was at that time legally represented, filed an affidavit sworn by her on 22 July 2019 to explain her failure to appear on 10 May 2019. Relevantly, the mother deposes to the following:

   3.I was diagnosed in or about 2005 (sic) at the V Hospital with epilepsy…

   4.After a seizure, I would suffer a postictal state which is best described in stages:

   (a) Post seizure, I would initially feel confused, I have difficulty speaking, and I am unable to communicate or remember basic information such as the date, year or my address. This stage can last for several minutes but can also last for hours.

   (b) I would quickly develop a throbbing headache when noise and light are intensified.  During this time, I use a sleeping mask to cover my eyes and offer some relief from the intense brightness of the lights.  I have been made aware that it is similar to a migraine.  I become exhausted and want to sleep … This stage usually lasts two to six hours but it can also last two to four days

   (c) Once I have slept generally for six to ten hours, I would have regained the ability to remember basic information such as the date and my address.  However, I cannot engage in complex thinking, have limited cognitive functions, limited comprehension, and have difficulty in finding the correct use of words, speech and vocabulary ...  During this stage, I can perform tasks that are routine such as cooking, cleaning, basic communication, and caring for X. 

   6. On Saturday, 23 March 2019… I recall feeling hot, dizzy, feeling like my stomach was rising to my throat, an unusual taste in my mouth and feeling as if I was detached from my surroundings.  These symptoms are my typical prodome phase indicating that a seizure is occurring.

   7. … I was a patient in the hospital for six (6) days and I was discharged on Friday, 29 March 2019.

   11.On Monday, 8 April 2019, I requested an adjournment from the court register via email and from the applicant via SMS sent on 8 April 2019…

   12. During the night of Monday 8 April 2019, I suffered a partial seizure at home.…

   13. On Tuesday 9 April 2019, I prepared X for school and caught a cab to see my regular general practitioner, Dr M, and I was advised that I am unable to attend court due to my postictal state.  I was provided with a doctor certificate.

   17. On Friday, 10 May 2019, I did not attend court as I did not know I had a court appearance.  I do not recall reading or seeing an email or any other communication informing me of this date.

   18. I was not present in court on the date previous to this, in April, as I have explained above.

3. On 9 April 2019, the hearing of the father’s contempt application was listed for hearing on 10 May 2019.  The mother did not attend the hearing on 9 April 2019. The medical certificate attached to the mother’s affidavit states that the mother “is suffering from a medical condition (post-ictal status) and will be unfit for court from 09/04/2019 to 09/04/2019 inclusive”.

4. The mother also attached to her affidavit a discharge summary from Queensland Health corroborating her admission to hospital on 23 March 2019 and discharge on 29 March 2019. The reason for admission is the principal diagnosis of ‘tonic clonic seizures’. The records also corroborate the mother’s appointment with a specialist on 8 April 2019.

5. The mother’s affidavit also claims that she has done her best to comply with court orders and offers the following explanations for her failure to comply:

   a)The mother says that she did file a complete copy of her earlier material but acknowledges that there were blank pages in between each typed page and that the paragraphs were not numbered consecutively;

   b)The mother denies she failed to contact W Group. On the contrary, she says she contacted them on numerous occasions but was told that the father had not registered and that he needed to register first. She also says that on 12 June 2019, she was told that the father had failed to provide a copy of the most recent court order and the file had therefore been closed;

   c)The mother refers to the notation on the order made 21 August 2018 to the effect that the mother cannot travel to Suburb S or Suburb T and also states that she was unable to travel to Suburb U. (I assume that all three places were W Group offices.) The mother does not drive and is reliant on public transport. She says it would have taken her and X three hours on public transport to get to the contact centre and would also involve two kilometres of walking;

   d)The mother says she tried to arrange contact at the Suburb O Community Centre but the father refused to attend there. (The father agrees that this offer was made and that he refused because it did not comply with the order and he felt the centre would not be independent because the mother was a volunteer at the centre); and

   e)The mother agrees that she has not always complied with court orders but says that she has endeavoured to do so but has not always been able to do so because of her epilepsy, her lack of representation and her memory failings.

1. The records from W Group do not support the mother’s contention that the father had not registered. The records indicate that the father registered with W Group on 19 July 2018.  

2. The mother finally filed her Response to the father’s Amended Initiating Application on 9 October 2019. 

3. There is no doubt the mother has failed on occasions to do what was required of her by court order, but I am less satisfied that the mother has made no reasonable attempt to comply with orders. The mother has experienced a number of debilitating seizures over the last 12 months which have resulted in hospitalisation on occasion. It is common ground that her seizures affect her memory. She has not had the consistent assistance of lawyers. The mother said during cross-examination that she finds communication with the father anxiety provoking and I accept that to be the case. She also said that she had adopted a technique of avoidance which she acknowledges has not proved to be at all successful in reducing the conflict. She maintains that if an order is made for time to occur, she will comply. I accept her assurance. She also said that she would agree to the paternal grandmother or paternal aunt being the supervisor after a period of supervision at a contact centre.

4. I am not satisfied that the mother’s failure to register with a contact centre in a timely manner is indicative of her attitude to the child spending time with the father. I say this because it is common ground that the child delights in seeing her father and has been protected by her mother from knowing why she has not spent time with her father e.g. Z’s allegations. Additionally, Ms J opined that the child’s “openness and enthusiasm around seeing her father must be attributed to a large extent to [the mother’s] encouragement of the relationship to X”. And that “[t]his lends weight to [the mother’s] assertions that she would like X to have a relationship with [the father], but is uncertain of her safety while in his care”. I agree with Ms J’s opinions.

5. I consider the mother’s avoidance type behaviour, as she described it, to be understandable in the context of her knowledge that the Department had substantiated Z having suffered emotional harm because of sexual abuse and her feelings of anxiety in having to communicate with the father. In my view the mother is conflicted about what is best for X. The mother’s internal conflict is not assisted by the father’s behaviour in rejecting her attempts to ensure the child continued to have a relationship with him.   For example, the mother obtained a phone for the child and asked the father to call the child directly rather than calling her. The mother also arranged for the Suburb O Neighbourhood Centre to supervise the father’s time with the child when the waiting list at W Group meant that there would be a significant delay in time commencing.

6. The father has demonstrated a rigid attachment to court orders which has been self-defeating and at odds with his stated wish to have a relationship with the child.

Whether allegations of family violence made by each party against the other impact upon either parents’ capacity to provide full time care for the child or to spend time with her

1. Each party made allegations of historical family violence against the other. The mother describes being subjected to financial hardship by the father during the relationship. She also claims that he frequently complained about the state of the house and called her names such as “lazy” and “useless”. 

2. The father alleged that the mother hit him on one occasion and he produced a photograph of a bruise which he alleged was the result of this assault.

3. The mother was an instructor in martial arts throughout the relationship and was from time to time absent from the home in pursuit of this interest. The father considered that the mother should obtain paid employment and this was a source of some dispute between them.

4. Although they have been separated for nearly five years, the mother remains anxious when having to communicate with the father. As already noted, the father’s recent behaviour towards the mother was petty and self-defeating and demonstrates a certain obsessiveness. His recent conduct resulted in a temporary protection order for the protection of the mother, which the father said he intends to contest. The father also resisted the mother’s submission that each party should be restrained from approaching the other at the child’s school or at sporting events and the like. The father maintained that no such order should be made and that it was a matter that would be dealt with in the domestic violence proceedings. In my view, given my finding that the mother experiences anxiety when dealing with the father and the father’s recent harassment of the mother by email etc I consider the mother’s request to be appropriate and I will restrain each of them from approaching the other at such events. 

5. Despite the alleged history of family violence, I consider that the risk to the child of exposure to family violence is low and I do not consider that either parents’ capacity as a parent will be adversely impacted.  The circumstances giving rise to the alleged family violence are unlikely to be repeated given that the parties are no longer in a relationship. The parties will have limited need to communicate in the future and I propose to place restrictions upon them in the mode and frequency of that communication to minimise any potential for conflict. Each party would be well advised to obtain some counselling to assist them in their communication in the future.

what parenting order is proper

1. Having determined the significant issues raised by the parties, I now turn to consider what parenting order will be proper in the particular circumstances of this case.

2. I am not satisfied that a change in primary care would be in the child’s best interests for the reasons discussed above, so the child will remain in the primary care of the mother.

3. As the father does not pose an unacceptable risk of sexual harm to the child, I propose to order that the father spend time with her. However, I am conscious of the fact that the mother remains conflicted about the child’s safety given Z’s disclosures and the belief of the CSO in those disclosures. I am hopeful that the mother will take the time to read and reflect upon all of the evidence and my reasons for finding that there is no unacceptable risk. I expect that it will take some time for the mother to accept the outcome but the prospects of her doing so will be enhanced if the time the child spends with the father is initially supervised at a contact centre and then supervised by an adult she trusts, such as the paternal grandmother or paternal aunt. The mother agreed that either of them would be appropriate supervisors. Given the paternal grandmother’s illness and the pending birth of the paternal aunt’s child in January 2020, I will include a provision for the parents to reach agreement about alternate supervisors if needed.

4. It would be unwise in my view to move too quickly to unsupervised time or to overnight time. If the mother is anxious, the child may become aware of that and it will impact on the child’s ability to develop her relationship and enjoy her time with the father. In addition, the child was observed by Ms J to demonstrate some anxiety about being away from her mother.

5. Although the child is very young she did express a clear desire to spend time with her father at both family report interviews in 2017 and 2019 and again during the supervised visits in 2019. The child told Ms J in June 2019 that her three wishes included “to see my Dad” and to do this “every Sunday”. Ms J “did not identify any concerns for her development, and no reasons why the court should not take her views and wishes into account”.

6. In the two supervised visits between the child and father in September and October 2019 undertaken with the assistance of Child Dispute Services within the Court, the child was again noted to be overjoyed to spend time with her father and sad at the prospect of not being able to continue to see him. After the October visit, the child said to the family consultant, Ms L that she “wished she could spend time with the father outside so they could do activities together”. She told Ms L that she did not want to be inside anymore. I have taken the child’s views into account when fashioning what I consider to be an appropriate order.

7. I have no confidence that the parents have the capacity to make joint decisions so I propose to make an order for the mother to have sole parental responsibility for major long term issues but to consult with the father in writing. I propose to limit the communication to no more than one email per week and only in relation to issues directly relating to the child.

8. The parents agreed to the making of certain ancillary orders. Unfortunately, given the disagreement between the parents about the child’s tolerance to dairy, I will put in place a timetable for the mother to obtain a report from a medical practitioner. If the report does not diagnose an intolerance to dairy products, or if the mother does not obtain the report in the time specified, the father will be under no obligation to restrict the child’s diet.

Conclusion

1. I have found that the child should remain in the primary care of the mother where she has lived since the parties’ separation in December 2014. She has spent very little time with her father since then but nevertheless remains very enthusiastic about maintaining her relationship with him. The child has a close and loving relationship with her mother and the independent evidence indicates that the child is being well cared for by the mother despite her history of mental illness and epilepsy.

2. I am satisfied that the mother will comply with the order I propose to make for the child to spend time with the father but will require some time to accept the outcome. Hence the initial period the child spends with the father will be supervised in order to allay any residual concerns the mother has for the child’s safety.  

3. I have found that the mother remains anxious about communicating with the father and he has recently demonstrated some rather petty and harassing behaviour which has been self-defeating. Accordingly, I propose to place some limits on the means and frequency of communication in the future.

4. I am satisfied that the order I propose to make is in the best interests of the child in the circumstances of this case.

I certify that the preceding one-hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 15 November 2019.

Associate: 

Date:  15 November 2019