Bowles and Gillen

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOWLES & GILLEN

[2014] FCCA 2556

Catchwords:
FAMILY LAW – Parenting – whether an order should be made changing the residence of a child aged 7 from the mother to the father – where the parents separated when the child was a few weeks old and where the mother relocated from Sydney to country NSW soon after – where the child has since lived with the mother four and a half hours driving distance from the father – where the father has long expressed concerns about the child’s presentation and behaviour – where the family report writer found the child to be disturbed, angry, highly distressed and anxious – whether the child’s condition is the result of exposure to parental conflict and may abate once the proceedings are finished as the mother maintains or whether it is the result of poor parenting by the mother as the father maintains – where on any view the child urgently needs help – whether the mother is capable of ensuring that this occurs – where the mother has a fixed false belief that the father has sexually and physically abused the child during visits – risk of further allegations if the child remains with the mother – where the effect on the child of separation from a loved younger sibling has to be considered but where on balance a change of residence is required.

Legislation:

Family Law Act1975 (Cth), ss.60CC, 61DA, 61DB

Mazorski & Albright (2008) 37 Fam LR 518

Applicant:

MR BOWLES

Respondent:

MS GILLEN

File Number:

PAC 2267 of 2010

Judgment of:

Judge Terry

Hearing dates:

11 & 12 December 2013, 26 & 27 May 2014 and 23 & 24 October 2014

Date of Last Submission:

24 October 2014

Delivered at:

Newcastle

Delivered on:

14 November 2014

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr Duane

Solicitors for the Respondent:

A W Simpson & Co

Solicitor Advocate for the Independent Children's Lawyer:

Mr Munday

Solicitors for the Independent Children's Lawyer:

Moin & Associates

ORDERS

The child [X] born [omitted] 2007 shall live with the father.
The father shall have sole parental responsibility for decisions concerning the child’s education, medical treatment and counselling but shall keep the mother advised of all decisions made in respect of those matters.
The parents shall otherwise have equal shared parental responsibility for the child.
The child shall spend time with the mother:
(i)Commencing on the first weekend in February 2015 on the first weekend of each month during school terms from 10.00am on Saturday until 4.00pm on Sunday;
(ii)For one week in each mid-year school holiday period being the first week in even numbered years and the second week in odd numbered years;
(iii)From 10.00am on 26 December 2014 to 4.00pm on 1 January 2015;
(iv)For the first and second-last full weeks of the Christmas school holidays in 2015/16 and each alternate year thereafter and the second and last full weeks of the Christmas school holidays in 2016/17 and each alternate year thereafter;
(v)At such additional or alternate times as may be agreed between the parties.
For the purposes of order (4)(ii) the child’s time with the mother shall commence at 10.00am on either the first or second Saturday of the holidays as the case may be and end at 4.00pm on the second or third Sunday of the school holidays as the case may be.
For the purposes of order (4)(iv) the child’s time with the father shall commence at 10.00am on the first Saturday or the second-last Saturday of the Christmas school holidays as the case may be and end at 4.00pm on the following Sunday.
Notwithstanding any other order the child shall spend the Father’s Day weekend each year with the father and the Mother’s Day weekend each year with the mother. If the child misses the usual September weekend with the mother as a result of spending the Father’s Day weekend with the father she shall spend the following weekend with the mother and if the Mother’s Day weekend falls on the second weekend in May the child shall not spend time with the mother on the first weekend but shall spend time with the mother on the Mother’s Day weekend.
Changeover for the purpose of Order (4) shall take place at a midway point between Sydney and [Q] as agreed between the parties and failing agreement at the McDonalds Restaurant [omitted].
The child shall have telephone communication with the mother on two occasions each week, unless otherwise agreed between the parties to be between 6.30pm and 7.00pm on Wednesday and Sunday, with the mother to telephone the child and the father to make the child available to receive the call.
The father shall immediately the child commences to reside with him pursuant to order 1:
(a)make an appointment with the [omitted] Children’s Hospital Child and Adolescent Unit for the child to see a suitable doctor and/or specialist, and shall also if necessary have the child attend upon any treating doctor for the purpose of a referral to a specialist;
(b)make enquiries about and attend to seeking treatment and counselling for the child;
(c)advise the mother of all medical appointments, and provide the mother with reports and inform her of outcomes;
(d)provide the Family Reports of Dr G dated 15 October 2014 and 5 July 2013 to any treating doctor, psychologist, counsellor or other relevant health professional.
Each parent shall keep the other advised of their residential address and mobile telephone number and shall advise other of any change to those details within 48 hours of the change occurring.
Each parent shall promptly inform the other should the child while in their care be the subject of an accident or medical emergency requiring attendance at hospital or be diagnosed with a serious illness.
Each parent may obtain from child’s school copies of school reports, newsletters, order forms for school photographs and information normally provided to parents and each parent may attend events at the school normally attended by parents.

AND IT IS NOTED for the avoidance of doubt that if in the future the mother commences residing permanently in Sydney and seeks to vary the orders concerning the child spending time with her during school terms and the parties cannot reach agreement about a variation, the mother may make an application to the court in respect of this issue and it is the expectation of the court that the application will not be dismissed pursuant to the Rule in Rice & Asplund without some inquiry first being made into the merits of the application.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

PAC 2267 of 2010

MR BOWLES

Applicant

And

MS GILLEN

Respondent

REASONS FOR JUDGMENT

Introduction

[X], aged 7, is the only child of Mr Bowles and Ms Gillen. At present she lives with her mother in [Q] and spends time with her father, who lives in Western Sydney, on one weekend each month and for half of the school holidays.
[X] has lived with her mother all her life and she has a sibling [Y], aged 2, in the mother’s household.
The father seeks an order that [X] lives with him. His case in summary is as follows:
i)The mother is not properly attending to [X]’s day to day needs in terms of dental treatment, head lice eradication and provision of adequate food.
ii)[X] is missing an unacceptable amount of school and is struggling academically.
iii)[X] is displaying very disturbed behaviour including using foul language, making threats, having tantrums and lashing out physically. This is impacting on her education and her relationship with her peers and with adults. The Family Report Writer described [X] as a disturbed, angry and highly anxious child who needed immediate assessment at a hospital and intensive counselling support. This is unlikely to occur if [X] remains with the mother because the mother does not acknowledge the extent of [X]’s problems and is unreliable and disorganised when it came to making and keeping appointments with professionals.
iv)The mother has made a number of false allegations of sexual and physical abuse against him. This behaviour by the mother is emotionally abusive of [X] and if it occurs again could undermine or interrupt [X]’s relationship with the father.
v)There is reason to question the mother’s own functioning. When she was in her teens she stabbed her sister in the hand with a knife and was briefly admitted to a mental health unit during which she admitted to poly-substance abuse. The mother resisted engaging in counselling for herself when it was recommended by DOCS in 2008. She might also be continuing to use cannabis.
vi)The mother has had numerous male partners post separation and has a younger child whose father is unknown.
vii)He in contrast has no mental health issues, has never used drugs, has a good job as a police officer, is in a stable long term relationship and has a supportive extended family and can give [X] a good home and ensure that she receives the help she so desperately needs.
viii)While [X] will be distressed at being separated from [Y] he will do his best to ensure that she sees [Y] regularly and this is not a sufficient reason to refuse to change her residence.
The mother seeks an order for sole parental responsibility and orders that [X] live with her and spend the same time with the father as she is at present. Her case in summary is as follows:
i)She is not neglecting [X]’s day to day care; she is doing the best she can and should not be condemned because she is on Centrelink benefits and does not have the father’s income and easy resort to private dental treatment and counselling services.
ii)The father is overstating the extent of the problems with [X]’s education. Her school attendance has improved this year, she is achieving better at school since she had started using glasses and she received a good Semester 1 2014 school report.
iii)[X]’s behaviour is concerning but it is either the result of something she is being exposed to in the father’s home or a reaction to exposure to conflict between the parents and the prolonged court proceedings. Changing her residence will not change her behavioural problems.
iv)She is more than capable of ensuring that [X] receives any counselling assistance she needs; the only reason [X] is not receiving counselling at present is either that counsellor advised the mother that counselling was unnecessary because the mother and father could help [X] themselves or that the counsellor suggested that he/she could not do anything effective until the court proceedings were finished.
v)She has no mental health issues other than depression and anxiety caused by dealing with the father, agrees she wounded but says she did not stab her sister and it was a long time ago and does not use cannabis.
vi)The father was violent to her during their relationship and has sexually and physically abused [X].
vii)[X] would be highly distressed at being separated from her and [Y].
viii)The father and his wife both work; she does not and is therefore better placed to care for [X].
Two aspects of the mother’s case remained puzzling to me throughout the hearing namely that:
i)She maintained during cross-examination that she still believed that the father had sexually abused [X] and had physically abused her as recently as April 2014 when he left a hand shaped bruise around her ankle. The mother proposed however that [X] should spend the same time with the father in the future as she is doing now.
ii)The mother insisted that the kind of disturbed behaviour [X] was displaying (to the extent that the mother acknowledged it) must have its origin in something she had observed in the father’s home yet she proposed that [X] continue to spend the same time with the father in the future as she is doing now.
In October 2014 both the Independent Children’s Lawyer and the Family Report Writer said that they supported an immediate change of residence.

The evidence

The father relied on his amended initiating application filed on

21 November 2013, his affidavits filed on 21 November 2013, 2 June 2014 and 10 October 2014 and the affidavits of his wife Ms H, the paternal grandmother Mrs B and his brother Mr B all filed on 18 November 2013.
The mother relied on her amended response filed on 23 October 2012, her affidavits filed on 25 October 2013 and 13 October 2014 and the affidavits of her uncle Mr T filed on 2 August 2013 and the maternal great-grandmother Ms J, the maternal grandmother Mrs G and a family friend Ms T all filed on 31 October 2013.
Two family reports were prepared by Dr G, one on 5 May 2013 and the other on 15 October 2014.
All of the witnesses were cross-examined.

An assessment of the witnesses

The father represented himself and came across as a serious man who was not at ease with humour or banter. He often spoke in a stiff and mannered way and he used odd terms on occasions such as “photographic image” rather than photo.
I was initially a little concerned about whether the father was emotionally engaged with his daughter’s issues as opposed to laying out a series of cold facts but came to the view, particularly as a result of some of his answers in cross-examination in October 2014, that he was probably a soft touch when it came to dealing with his daughter.
Possibly as a result of his training as a police officer the father presented his case in a very careful and thorough manner. There were no credit issues with the father.
The father’s wife Ms H was a calm and co-operative witness. I had no reason to doubt her sincerity or credit as a witness.
The paternal grandmother and paternal aunt and uncle gave credible evidence. They were critical of the mother and her family but did not display antipathy toward them. However I need to be cautious about placing weight on their general opinions about the mother and her family which they clearly formed based on limited evidence and a partiality for the father.
I have numerous concerns about the mother’s evidence. I will refer to specific concerns as they arise but some concerns which spring to mind are that:
·During cross-examination in May 2014 the mother gave evidence that the father had caused a hand-shaped bruise to [X]’s ankle in April 2014 which I am satisfied was a complete fabrication.
·The mother admitted lying in her affidavit about the extent of her past drug use.
·The mother was untruthful about why [X]’s counselling with Mr D ended.
It was the maternal grandmother and not the mother who told the court about an incident in 2014 where [X] threatened to cut another child’s throat. Subpoena material from [Q] School confirmed that this had occurred and that the school had called the mother in for a discussion after the incident.
A lot of the “evidence” in the mother’s 23 October 2013 affidavit was not evidence at all, but a combination of fact and speculation which upon careful consideration did not make sense; examples are in paragraphs 7 & 8 of the affidavit.
It troubled me throughout the hearing that the mother’s proposal about [X] spending time with the father in the future was totally inconsistent with the allegations she made about him.
The mother’s 23 October 2013 affidavit contains a litany of complaints about the father including that he had assaulted her, harmed animals, behaved in lewd and offensive manner in public and harassed her constantly after separation causing her to fear for her safety and that he had physically and sexually abused [X], asked [X] to keep secrets and was directly responsible for any disturbed behaviour [X] was displaying.
Notwithstanding this, the last three lines of the affidavit read as follows:
I would prefer that I have sole parental responsibility for the long term issues in [X]’s life. Otherwise I am happy with the orders as they stand. I do not support an order that [X] reside with her father and spend time with me, however.
The mother did not resile from any of her allegations during the hearing and yet she sought the same outcome during final submissions.
The mother was ably represented by experienced counsel. There was not the slightest hint that she had been overborne by her legal team into proposing something that she was not comfortable with. No explanation was ever advanced for the inconsistency between the mother’s evidence and beliefs and her proposals for the father’s time with [X].
Dr G said in her report that during interviews for the second family report the mother presented with a flat affect and gave minimal responses to questions. During cross-examination Dr G said that she felt that she did not really have an accurate idea of the mother and that resonated with my impression of the mother, because the mother’s position as to final orders was not the only thing which did not quite make sense. The information the mother gave about being a student and about the course she was enrolled in for example made sense on each separate occasion she provided it but when she was questioned more deeply about the issue a real doubt crept in about whether she was a student at all.
The maternal grandmother was very clearly in the mother’s camp. She displayed some antipathy to the father and like the mother readily jumped to conclusions based on bits and pieces of gossip and hearsay which had come her way, always preferring the conclusion unfavourable to the father even though other conclusions were open. However she did reveal the incident at the school in April 2014 which the mother failed to mention.
The paternal great-uncle and the paternal great-grandmother were also clearly in the mother’s camp and intent on presenting her circumstances and her families circumstances in the best possible light. The mother’s friend Ms T revealed that she had had only irregular contact with the mother and [X].

Procedural History

This case has been in the court system for some time and it is worth briefly summarising the procedural history.
The father filed an application in the Federal Circuit Court at Parramatta on 16 March 2012. He sought orders that the parties have equal shared parental responsibility for [X] and that she live with the mother and spend defined time with him.
The mother filed a response in which she sought an order for sole parental responsibility and orders that the child live with her and spend time with the father from Saturday morning to Sunday evening one weekend each month in the [Q] area.
The mother also sought a transfer of the proceedings to Newcastle but for the time being the matter remained in Parramatta.
On 16 August 2012 orders were made which provided for the father to spend time with [X] on fixed dates in August September and October 2012 and thereafter on the first weekend of each calendar month and for the first half of each of the shorter school holidays and for two weeks of the Christmas school holidays 2013.
On 23 October 2012 the father filed an amended application in which he sought orders that the child live with him and spend defined time with the mother. He explained his change of position in his trial affidavit as follows:
I initially was seeking orders to spend time and have access with my daughter. But, once I had the opportunity to view the subpoena material that was produced in court in 2012, I was horrified of the information that was contained within. I always had suspicions about [Ms Gillen’s] issues, but I had nothing to validate or confirm this, until now. Now I am seeking [X] live with me and to make sure her basic needs in life are met.[1]
[1] Father’s affidavit filed 21 November 2013 paragraph 392
A Family Report was ordered and it was prepared by Dr G and released to the parties on 5 May 2013. Dr G expressed concerns about [X] and recommended that she be immediately engaged in counselling but she did not make any recommendation about where [X] should live. She recommended the appointment of an Independent Children’s Lawyer and that further subpoenas be issued.

The matter came before Judge Harman on 9 May 2013 after the release of the report. He appointed an Independent Children’s Lawyer and transferred the matter to Newcastle where it was subsequently listed for hearing on 11, 12 & 13 December 2013.
The hearing commenced on 11 December 2013 but one day of the hearing time was lost through no fault of the parties and the shortening of time meant that there was no prospect of the matter concluding in December. However it became apparent that the hearing could not have concluded then anyway. No subpoena had been issued to the counsellor engaged after the release of the Family Report and there was no updating subpoena to the child’s school, and as the evidence unfolded it became apparent that it was essential that this material be obtained before the matter was finalised.
The hearing was adjourned to 26 & 27 May 2014 and in May 2014 cross-examination of the mother and her witnesses was concluded and Dr G was cross-examined. However the mother’s answers in cross-examination and the revelation by the maternal grandmother about the incident at the child’s school in April gave rise to considerable concern as did Dr G’s oral evidence. A decision was made to order an up-dated family report and the hearing was adjourned to 23 and 24 October 2014.
Dr G’s report was released to the Independent Children’s Lawyer on 16 October 2014 and to the parties (on the recommendation of Dr G) on the morning of the hearing. In the report Dr G recommended that [X] live with the father.
The mother and father filed up-dating affidavits and were further cross-examined on 23 and 24 October. Dr G was also further cross-examined and submissions were then taken and the hearing concluded.

Background

The father grew up Western Sydney and he and his extended family still live there.
The mother lived in Western Sydney until she was about 3. Her parents then moved to [W] near [T] where they purchased a home and the mother remained there until she was about 13. She then returned with her parents to Western Sydney but her parents continued to own a home in [W].
The mother and father first met at school in 2002. They met up again in 2005 and formed a relationship and commenced cohabitation at the paternal grandparents’ home in early 2006 when they were both 19.
The mother fell pregnant in mid-2006 and in late 2006 moved back to live with her parents. The father joined her there.
[X] was born on [omitted] 2007.
The parents separated at the end of March 2007, with the mother and [X] remaining at the maternal grandparents’ home and the father moving out (or being required to leave on his evidence).
In mid-June 2007 the maternal grandparents decided to move back to [W] and in late June 2007 when [X] was about three months old the mother relocated to [W] with [X]. [W] is about 4 ½ hours drive from Western Sydney.
There was considerable dispute about whether the mother told the father of her intention to move or told him where she was going.
The father said that she didn’t tell him she intended to leave Western Sydney and that he simply found she was missing. He said that he had no idea the maternal grandparents owned a home in [W] and he had trouble tracking the mother down.
The maternal great-grandmother insisted that the father knew of about the home in [W] and said that the mother had no option but to go with her parents because the father did not offer her a home and she needed support.
The maternal grandmother said that the family had been travelling back and forth to [W] since late 2006 to do up their house and on one occasion the father accompanied them and it was nonsense for him to suggest that he knew nothing about the home in [W].
The maternal grandmother said that immediately after the move she continued to work in Sydney during the week and go up to [W] on weekends and that she offered to drive the father up to [W] so that he could see his daughter and bring him back but that he did not take up the offer.
The father was a generally credible witness and I incline to the view that he did not know at first were the mother had gone but there is no doubt that he found out where she was fairly shortly after the move.
The father did make some efforts to see [X]. He spent an hour with her in October 2007 when the mother visited Sydney and in late 2007 he and his sister Ms B drove to [W] and spent time with [X] at the mother’s home. In April 2008 the mother and father reached an agreement for the father to see [X] once a month at [M] McDonalds and visits took place there in September, October, November and December 2008 and January and February 2009.
The father said and I accept that he tried to get the mother to agree to further time after February 2009 but no agreement could be reached.
In May 2009 the father was accepted into the police force and went to [G] to do his training. He remained in [G] until December 2009 and during this period did not see [X] at all.
After graduating from [G] the father was posted to [omitted] and in March 2010 he tried to arrange mediation with the mother. The mother did not attend the first scheduled appointment but attended the second in July 2010 and a parenting plan was agreed to which provided for the father to visit [X] once in [Q] and then for [X] to spend time with the father overnight in Sydney once per month.
Meanwhile in May 2010 the father’s sister Ms B had filed an application in the Federal Magistrates Court at Parramatta seeking time with [X] on her own behalf. She named both the mother and father as respondents.
Ms B’s application was transferred to Newcastle. In August 2010 it was adjourned to 1 February 2011 for mention noting that the mother and father had agreed that the father would see the child once a month and that the mother had no objection to Ms B participating in the time.
The father and paternal grandfather went to [Q] in August 2010 to spend time with [X] and in October 2010 [X] had her first overnight visit with the father in Sydney.
In regard to the period between [X]’s birth and August 2010 I observe as follows.
First, I strongly doubt that the mother relocated from Sydney simply to distance [X] from the father. It is entirely understandable that the mother then aged 19 and without accommodation of her own in Sydney, would have chosen to move to [W] with her young baby to live with her parents.
Second, while I am satisfied that the fact that the father spent fairly limited time with [X] between her birth and August 2010 was partly due to the mother being less than enthusiastic about him spending time with her and being very slow to reach agreement with him after he finished his training, it was also partly due to the father prioritising his goal of becoming a police officer over strengthening his role in [X]’s life. The father was certainly interested in his daughter and was aggrieved that the mother did not permit his then-partner to bring [X] to his graduation ceremony in December 2009, but the fact that he spent no time with her between May 2009 and December 2009 while he was at the police academy was not the mother's fault.
The father saw [X] monthly between August 2010 and January 2011.
On 1 February 2011 final orders were made in the proceedings commenced by Ms B which provided for [X] to spend time with the father on one weekend in March, May, July, September and November 2011 with changeover to take place on all but the March occasion in [D] and with the father to pay the mother $250.00 after one of the visits to assist with travel costs.
These orders were final orders as between Ms B and the mother and father but envisaged the mother and father attending mediation to discuss arrangements for the period after the end of 2011.
No agreement was reached for further time after the end of 2011. The father sought mediation in February 2012 but could not arrange it and in March 2012 he commenced proceedings in the Federal Circuit Court at Parramatta.
On 16 August 2012 interim orders were made providing for the parents to have equal shared parental responsibility, for [X] to live with the mother and spend time with the father from 1.30pm Friday until 1.30pm Sunday on the first weekend of each calendar month, for half of the three shorter NSW school holidays and for two weeks during the 2012/13 school holidays with changeover to occur at [M] Railway Station.
Broadly speaking that time has happened since the orders were made and the mother agreed to the child spending 5 days with the father in February 2014 so that she could take part in his wedding.

The father’s circumstances

The father is 28. He lives in rented accommodation in [H] and is attached to the Licensing Unit in [omitted] which among other things is responsible for policing compliance with liquor licensing laws.
The father said, and I have no reason to doubt, that he had some flexibility in his work. He works 9.5 to 12 hours per day when rostered on but his hours are often 6.00pm to 4.00am. He said that said that the only fixed requirement was that he did 228 hours every 6 weeks.
The father said that if [X] lived with him he would be able to pick her up from school. He also said that he had made inquiries with the police and that if it proved necessary in terms of his parenting responsibilities he might be able to work part time.
The father’s current position does not require him to be on call.
The father maintains a close relationship with his parents, two sisters and one brother and has a network of friends in Western Sydney.
The father commenced a relationship with Ms H, now aged 24, in early 2008. The father and Ms H commenced living together in 2010 and married on [omitted] 2014. Ms H works in retail. She is currently [occupation omitted] and works Tuesday to Saturday from 9.00am to 5.00pm and has Sunday and Monday off.
Ms H met [X] at the end of 2008 and to the best of my knowledge has seen her whenever she has spent time with the father since.
The father said that if [X] lived with him he would enrol her at [H] School which was within walking distance of his home. He said that the school had a before school hours care program which he could utilise if necessary.
It was abundantly clear from the answers the father gave during cross-examination in October 2014 that he had thought about issues such as how he would manage if [X] was ill on a school day or the school called and asked him to collect her and that he had also made inquiries about the availability of support services in the area for both him and [X].
During cross-examination in December 2013 the Independent Children’s Lawyer pressed the father about whether he had considered seeking a transfer to [T] as a means of being near to his daughter and being a more involved part of her life.
There is a police station in [T] but the father was resistant to the idea. He has no connections in [T] or [N] and I can understand why that idea of transferring there would hold no attraction for him. No submissions were made at the end of the case either by the mother’s counsel or the Independent Children’s Lawyer that the court should take into account a possibility that the father could move to [T].

The mother’s circumstances

The mother is 27 and since 2010 she had live in rented accommodation in [Q]. It has a population of about 3000 and is about an hour’s drive from [T] and about four and half hour’s drive from [H].
The maternal grandparents live in [W] about 15 minutes drive away and the maternal great-grandmother, who was formerly living in Western Sydney, now lives in [omitted].
[X] is in Year 2 at [Q] School which is across the road from the mother’s home.
The mother has a younger child [Y] born [omitted] 2012 and now 2 ½. The mother said that she did not know the identity of [Y]’s father.
At the May 2013 family report interviews the mother was in a relationship with Mr J which Dr G understood had commenced in November 2012. Mr J attended the report interviews and told Dr G that he suffered from bi-polar disorder and also had a back injury and suffered chronic pain and was on strong medication. Dr G found him pleasant and also patient with [Y].
In her trial affidavit the mother said that her relationship with Mr J ended in May 2013 and there was no evidence that she was currently in a relationship.
The mother described her occupation as home duties and student. She told Dr G in April 2013 that she was studying [omitted] but in her 23 October 2013 affidavit said she had changed to studying [omitted]. During cross-examination said that she had deferred her [omitted] degree and was now enrolled in a Bachelor of [omitted] at [omitted] University by correspondence and was doing three subjects.
In October 2014 the mother again described herself as a student but when pressed said that she was yet to pass the necessary subjects of an enabling course to allow her to officially enrol in a Bachelor of [omitted]. She claimed that she had done some units for the Bachelor of [omitted] course and had passed some subjects but could not be officially credited for this.
There was no independent evidence about the mother’s status as a student. The mother was not a witness of credit and I cannot rely on her evidence about her student status, and her evidence about this issue was confusing. Whether or not the mother is a student remains one of the puzzles of the case.
The mother does not have a driver’s licence and this has to be counted a drawback given where she lives.
The mother told Dr G in 2013 that she was endeavouring to obtain her licence. She still did not have it when Dr G interviewed her in September 2014 and during evidence in October 2014 she said that she had obtained a Learners Permit in 2009 but had failed two driving tests and her Learners Permit has lapsed. According to the mother it lapsed in June or July 2014 but given the mother’s unreliability as a witness I cannot necessarily be sure of that. When asked, the mother said that she did not have her expired Learners Permit with her at court.
The mother did not say anything which suggested that she was likely to get her licence in the near future. In re-examination her counsel elicited evidence from her about the costs of renewing a Learners Permit and having driving lessons, which it was intended to suggest might inhibit the mother obtaining her licence given that she was on Centrelink benefits. That is all very well, but frankly I cannot accept that if the mother was motivated to obtain a drivers licence and/or there was not some underlying issue standing in the way she would not have a licence by now. This is another issue about the mother which remains puzzling and mysterious.

The allegations of family violence and sexual abuse made against father

The mother and the maternal grandmother made a number of serious allegations about the father designed to paint him as a violent person who had sexually abused his daughter.
To avoid any suggestion that I have focussed on the weaknesses of each allegation individually and failed to consider their strength if taken as a whole I will first record the allegations and the father’s response to each of them and then my findings about the allegations.
The maternal grandmother alleged that she had heard a story that the father had smashed a guitar over his sister’s head when he was younger and the mother claimed that the father had threatened her sister with a knife as well as hitting her with the guitar.
The father denied that he had ever done these things or anything like them.
The mother alleged that during her brief relationship with the father he tried to control her time with family and friends. She alleged that he also called her derogatory names, tried to poison her cat, engaged in lewd behaviour in public while she was present and on one occasion handcuffed her to the bed and left her there for four hours.
The father denied that there was any truth in any of these allegations.
The maternal grandmother alleged that shortly after [X]’s birth the mother and father were sharing a room at her house when she heard a sound like a slap and some whimpering at about 4.00am. She alleged that the father left the house shortly after and that when the mother got up she saw a fist shaped bruise on the side of the mother’s left leg.
The maternal grandmother said that she formed the view that the father had assaulted the mother and took the mother to the police station to report the matter but was told by a young constable that if it happened again to ring him and that no formal report was made.
The mother said that she did not remember what happened that night as she was sedated but that she woke up with a bruise on her leg and that she believed that the father had hit her.
The father denied that he had harmed the mother in any way.
The mother alleged that when the father returned [X] from her first overnight visit in October 2010 he told her that [X] had been sore and itchy “down there” and that it looked as if she had a urinary tract infection. She alleged that after they got home [X] wanted a bath and the mother got into the bath with her.
She alleged that [X] grabbed the soap and started rubbing it between her legs and said “Dadda told me this is how you get rich.” The mother went on to say:
Then she said “Daddy touched my ‘gina.” She pointed to her vagina and said “Like this.” She then indicated a masturbation-like motion. Then she quickly changed the subject and said something like, “Can I shampoo my hair? I want to get out now.[2]
[2] Mother’s affidavit paragraph 53
The mother alleged that after the bath they went to the bedroom and [X] sat on the bed with her back against a pillow and put the heels of her feet together so that her vagina was visible and did the same masturbation movement as she had done in the bath. She alleged that [X] then said “That’s what happened. Can I go and watch a movie now?”
The mother reported the disclosures and JIRT conducted an investigation and [X] was medically examined.
The father said that the next day he was informed by his senior supervisor at work that the mother had complained that he had sexually abused [X]. The father said that he was so shocked and stressed that he had to go home sick.
The father vehemently denied any wrongdoing and suggested that the complaint was malicious. He said that when he dropped [X] off in [D] on 2 October 2010 the mother claimed that he owed her $70.00 petrol money. He said that told her that he did not believe that this was correct and declined to pay it. He alleged that the mother threatened that if he didn’t pay he would be in trouble and that she had ways of getting him into trouble.
The father said that another possibility was that the mother’s partner at the time, Mr H, had done something to [X]. He said that [X] called

Mr H “Dad Dad da” and that this concerned him at the time.
The father said that he was informed that the allegation was not substantiated. This is not quite correct. The Child Protection Unit found that there was no physical sign of abuse and [X] did not make any statements which suggested abuse. However they considered that the allegations could neither be confirmed nor denied. No proceedings were taken against the father and the police did not apply for an ADVO for [X]’s protection.
The mother alleged that about three nights after the first disclosure when [X] was getting changed for bed and was undressed she put her hand in the area of her vagina. The mother said “What are you doing, that’s not ladylike.” She alleged that [X] said “This is what Dadda done. He put his finger in there, and then he licked it and said “Mmm, tasty!” she alleged that [X] put her finger in the area of her vagina when she said that.
The mother alleged that on another occasion the child kissed her and put her tongue in her mouth and said “that’s what dada does to me. He also does this” and that the child took her hand and bit and sucked at the same time and said “He calls them love bite kisses.”
It is unclear to me if these last two allegations formed part of the JIRT investigation but they may well have.

The maternal grandmother alleged that November 2010 [X] said that she had a secret to tell her and then pulled up her nighty and ran her finger up her vagina and put her finger in her mouth. The maternal grandmother said “NO” and [X] said “but Dadadad says its mmmmm tasty.”
The maternal grandmother said that she rang DOCS to tell them about it but did not tell the mother because she did not want to distress her. There was nothing to suggest that this complaint was investigated.
In February 2011 orders were made by consent in the litigation commenced by Ms B providing for [X] to spend overnight time with the father on one weekend each two months.
On 3 September 2011 during one of these visits the father took [X] to hospital with an injury to her vagina area. He rang the mother to tell her that he was taking the child to the hospital. No particular treatment was required.
The father said that [X] was injured after she stood on the edge of the bath getting out of it and slipped. The mother said that [X] told her the same thing namely that she had slipped and hurt herself in the bathroom. She also alleged however that later [X] said that the father had given her chocolates because she was a good girl and “didn’t tell anyone our little secret.”
The maternal grandmother said that when she collected [X] from the father’s partner at the conclusion of this visit Ms H handed her a doctor’s note from outpatients. She said that she observed that [X] had a scratch above her eye and bruising on her legs up high which was yellow in colour.
The maternal grandmother alleged that when she was bathing [X] that night the child said that she had a secret and then said that the father had a bath with her with no pants on. She said that the father had told her not to tell.
The maternal grandmother rang [D] police and reported the injury to the child. There was no evidence that the complaint was investigated.
The maternal grandmother told Dr G in May 2013 that she was strongly of the view that the ‘bath straddling incident’ was associated with the father sexually interfering with [X].[3]
[3] May 2013 Family Report paragraph 57
The mother alleged that she took the child to the doctor a few days after this incident and that when [X] was asked what had happened to her eye she said:
It’s too painful to talk about. Dada said to say I ran into a door.” Then she said “Dada hit me on the bum so hard and I hit the floor. But he told me to say I ran into the door and it was an accident, but I didn’t.
The father vehemently denied that anything had happened other than an accident when [X] was getting herself out of the bath.
In December 2011 the father ceased spending time with [X] because the time provided for in the February 2011 orders had expired and he was not able to reach any agreement with the mother. Time did not resume until after he commenced court proceedings and consent orders were made on 16 August 2012.
Pursuant to these orders [X] spent time with the father for the first half of the September/October school holidays and the time was due to conclude on 28 September 2012.
On 26 September 2012 while [X] was with the father someone contacted JIRT and alleged that over the last twelve months [X] had been disclosing that the father had touched her on the vagina.
JIRT contacted the father on 27 September 2012 and asked him to bring [X] in for an interview. He did so and JIRT officers spoke to her and noted that she only had positive things to say about both the mother and father and said that no one had touched her “Gina”.
The father was interviewed. He vehemently denied the allegation.
JIRT officers found the father to be very honest and forthcoming in relation to allegations that had been made about him in 2010. They concluded that based on the interview with [X] there was no evidence of an offence having been committed. There were insufficient grounds to apply for an ADVO and that there were no concerns for [X]’s safety while with the father.
The mother did not admit to making the complaint and said that she was contacted by someone from the JIRT team on 27 October 2012 to say that the complaint had been made.
The mother alleged that she picked [X] up on 6 January 2013 after her school holiday time with the father. She alleged that when she was washing the child’s hair she noticed bruises and a scratch mark down her back. She said that when she asked [X] what had happened she said “It’s too painful to talk about. They held me down.” The mother said that she took [X] to see her GP the following day and the GP made a report to DOCS.
The mother said that she was willing to accept that [X] was a child with a good imagination or perhaps fanciful” but that the things [X] was coming up with disturbed her.
The father vehemently having harmed [X] during these school holidays.
A fresh allegation emerged during cross-examination of the mother in May 2014.
[X] spent time with the father over the Easter weekend. The mother picked up at about 1.00pm on Monday 21 April 2014 and took her to something the mother called a mock Royal Easter Show and then back to her sister’s home in [D] in the evening.
The mother alleged that upon return to her sister’s she noticed a large bruise wrapped entirely around [X]’s right ankle. She said that it was in the shape of a handprint and that the father had done it. When pressed about how she knew it was the father she said:
It was his hand mark. His fingers are long and they met like that all the way round on the other side.
The mother did not report the matter to DOCS or the police and did not file an affidavit containing information about it before commencement of cross-examination in May 2014 nor did her counsel did not ask leave to elicit this evidence from her in chief before she was cross-examined. The allegation was made for the first time during cross-examination.
An allegation that the father left a handprint bruise around the child’s ankle can only be an allegation of assault.
Immediately after the mother made this allegation I asked her to go and get her phone. She left the witness box and did so. She confirmed that her phone had a camera. I asked her why she did not take a photo of the bruise. She said that her phone had gone flat while she was in Sydney and she could not re-charge it as she had left the charger at home in [Q].
The mother was then asked why she did not get the maternal grandmother to take a photo of the bruise on her phone and her answer in May 2014 was:
She wouldn’t take a photo and she wouldn’t report it.
The mother was asked why if she was so concerned about the bruise she did not report it to the police or DOCS or even tell her solicitor about it so that it could be included in an affidavit. She said:
My mother was there and she told me to not to do it.
The maternal grandmother claimed in cross-examination that she saw the bruise and said to the mother:
It’s down on her ankle, I wouldn’t worry about it. Don’t stress over this one.
The mother claimed that the bruise was bluey-purple in colour when she noticed it but had disappeared by the next day.
I allowed the father to ask the mother some further questions about this allegation on 23 October 2014.
The father produced his telephone records which showed that he telephoned the mother at 6.59pm on her usual mobile number. He questioned how the mother was able to receive the call if her battery was flat. The mother said that she had taken her sim card out and put it in her mother’s phone. She also volunteered that her mother only had an old $29.00 phone without a camera.
The mother was challenged about her evidence concerning her own mobile phone and also about why the bruise was not apparent in a photo the father had taken of [X] prior to her being returned to the mother. She was then again asked why she didn’t report the bruise to anyone at the time and she replied:
It was questionable how she received the bruise.
This answer is bizarre given the mother’s evidence in May 2014 that the bruise was in the shape of a hand, and not just any hand but the father’s hand, which she recognised because of the long fingers.
The father vehemently denied causing a bruise to [X]’s ankle and said that an examination of photos he took during her visit suggested that she did not have a bruise on her ankle when she went back to the mother.
Finally the mother alleged in her October 2014 affidavit that when [X] was with the father during the mid-year school holidays he smacked [X] in the head while she was riding her bike in a park. She said she knew this because [X] complained about it during a phone call while she was with the father.
The father denied this and gave convincing evidence refuting the claim.
I will now assess the allegations.
Putting the maternal grandmother’s evidence about events when the father was a teenager in the best possible light it is the recitation of a piece of scurrilous and unreliable gossip. I do not accept the mother’s evidence, which was without foundation and given by a witness whose credit is doubtful.
As for the mother’s allegations that the father behaved in a controlling manner, this is a pre-7 June 2012 matter and therefore the more restrictive definition of family violence applies and this would not be family violence for the purpose of this definition even if true. However I do not accept that it is true.
That is partly because of the mother’s lack of credit as a witness but also because the mother moved out of the father’s parents’ home where she had been living with the father and into her parent’s home in late 2006, where the father joined her, without any incident between herself and the father. This does not suggest the father controlling her life.
As for the allegation about the bruise on the mother’s leg, the father denied hitting the mother and neither the mother nor the maternal grandmother saw him do so. Even if they are accurately reporting what they saw (and the reference to a “fist shaped bruise” raises the possibility of the evidence having been tailored and leads me to be suspicious that they are not accurately reporting what they saw) there are other explanations for the mother having a bruise on her leg. I am satisfied that antipathy on the part of the maternal family has prevented them even considering this.
As to the allegations of sexual assault in October 2010, the mother told authorities at the time about detailed disclosures allegedly made by [X] aged 3 and gave a detailed description of [X]’s actions. [X] was medically examined at hospital and interviewed.
[X] referred during the JIRT interview to the father having touched her vagina but this could have happened innocently during bathing for example; [X] was only three years old at the time. [X] provided no other detail which would suggest abuse.
The most concerning aspect of the matter is that while the material produced on subpoena certainly confirmed that the mother provided considerable detail of the alleged disclosures in 2010 it was strikingly different to the details in her 25 October 2013 affidavit.[4]
[4] Exhibit
The mother was not a witness of credit. I am satisfied for reasons to be given shortly that she fabricated her evidence about the bruise in May 2014. I do not accept her evidence about what she observed or about what [X] said or did in October 2010.
There is always the possibility that [X] was sexually assaulted by someone other than the father, but the completely different detail given by the mother in 2010 and in her affidavit leads me to consider it more probable that the mother made her evidence up.
The maternal grandmother alleged that [X] made disclosures to her in November 2010 which suggested sexual assault by the father. I do not accept the maternal grandmother’s evidence.
The father’s evidence about how [X] was injured in 2011 getting out of the bath was believable and consistent. It is quite possible that another father would not have taken [X] to the hospital after the injury but in the fraught situation between the parties which had involved numerous allegations and counter allegations including an allegation of sexual assault twelve months earlier I can understand why the father did so.
There is absolutely nothing to suggest that there was any sexual element to this injury and it is highly regrettable that the maternal grandmother was so ready to draw this inference.
As for the report made to JIRT Penrith on 26 September 2012 I am satisfied that there is no truth in the allegation that the father had been touching [X]’s vagina for twelve months. [X] did not say anything to confirm it and JIRT were satisfied that nothing occurred.
I do not accept that the father harmed the child in any way in January 2013.
As for the allegations about the bruise on the ankle the mother’s evidence about this was frankly unbelievable and incredible as it emerged in May 2014.
I am satisfied that the mother’s evidence about the bruise was a fabrication and that when she was she challenged she invented details to try and get herself out of trouble.
This whole incident causes me to feel grave disquiet about whether [X] will be able to enjoy an uninterrupted relationship with the father in the future if she continues to live with the mother.
I prefer the father’s evidence that he did not smack [X] in the head during the mid-year school holidays to the mother’s evidence that [X] told her that this occurred.
As mentioned earlier I do need to be careful to stand back and consider the allegations as a whole to avoid a risk that I have missed the forest for the trees. However on standing back I do not accept that if the allegations are considered as a whole they have strength where each allegation taken separately does not.
A contributing factor to what has happened with some of the allegations could be that [X] has said things to please her mother and also [X] does have a tendency to make bizarre statements. The maternal grandmother reported the child making fantastical allegations such as that the father had drowned her puppy in the pool and eaten her rabbit which tasted like chicken.[5]
[5] Maternal grandmother’s affidavit paragraph
If either of these things or both together (fantastical stories or stories told by [X] with a desire to please) have occurred and the mother has overreacted it is highly regrettable because as Dr G said in her May 2013 report:
[X] may have said things to each parent to “please” them or get their full attention and now finds herself in a situation in which she is too defended to tell anything about her life in the other household. In her family report interview she was extremely defended and anxious.[6]
[6] May 2013 Family Report paragraph
However the evidence also strongly suggests a pattern of the mother and maternal grandmother either leaping to conclusions which are not open on the evidence or fabricating evidence in order to blacken the father’s name and perhaps drive him out of [X]’s life.

[X]’s behaviour

The father and his sister Ms B said that from when [X] began spending time at the father’s home in Sydney she displayed concerning behaviour in the form of outbursts of bad language which included the words “slut” “bitch” “cunt” and “fucking dog” and had tantrums which involved attempts to bite and scratch people.
The paternal grandmother and the paternal uncle described similar behaviour.
The mother did not refer to such behaviour in her 23 October 2013 affidavit but on 18 May 2013 she told the [T] Mental Health Unit that [X] swore like a trooper, could be aggressive angry and violent and had night terrors and when going through this screamed bit and scratched. She also said that [X]:
If upset is impulsive and says “I will grab a knife and kill you if you upset me”[7]
[7] Exhibit R
The maternal grandmother gave the following evidence in her affidavit:
There have been many occasions when [X] has sworn and behaved badly showing signs of anger and lashing out saying things like “You don’t love me” and “I’ll stab you to death.” She even was overheard calling Ms H a dog on the phone. I told [X] it was inappropriate behaviour. She said “Dadadad tells me to call her a dog. He calls her a dog. When I asked her why she says anything about stabbing [X] replied, “Dadadad tells me to stab stab stab.” [8]
[8] Maternal grandmother’s affidavit paragraph
I accept the evidence given by a number of witnesses about the child’s behaviour, and Dr G was of the view that this behaviour was abnormal and concerning. She said as follows in her May 2013 report:
From all accounts [X] exhibits mood swings which include extreme volatility and verbal as well as physical violence. The maternal family attributes this behaviour to the father’s sexual abuse. The father attributes this behaviour to the mother’s poor parenting skills, mental health issues, instability with partners and neglect of the child.
Dr G strongly recommended in her May 2013 report that [X] immediately commenced counselling on a weekly basis and suggested that it would need to continue for two years. She said that it should not be school counsellor but a private or public practitioner who had the skills to deal with complex cases. She expressed concern that the mother and maternal grandmother had not been able to obtain help for [X] to date and said as follows:
[X]’s presentation alone, on the two days she was interviewed, indicates that she urgently needs child therapy. It is of concern that both the mother and the maternal grandmother say that they have been trying to access services unsuccessfully. This can give the court no confidence that the mother has the capacity to attend to [X]’s welfare.
After the report was released the father contacted Child and Adolescent Mental Health Services (CAMHS) and [X] was referred to Mr D, a counsellor in [T].
The mother took [X] to some sessions with Mr D but during cross examination in May 2014 said that Mr D had ended the session’s two weeks earlier saying that he could do nothing for [X] that the parents could not do themselves.
As will be noted later this turned out to be untrue but in any event the mother then obtained a referral for [X] to see Ms A who does counselling in [Q]. The mother told Dr G that she had taken [X] to six sessions with Ms A.
Dr G inspected documents produced by Ms A however and said as follows:
During the interviews for the updated Report, Ms Gillen stated that she had taken [X] to ‘six to eight’ sessions with psychologist, Ms A. The subpoenaed documents indicate that, in fact, [X] was taken on three occasions to Ms A: an intake interview with Ms Gillen on 22 May 2014, and counselling sessions for [X] on 5 June 2014 and 19 June 2014. On 5 June 2014 Ms A noted her ‘plan’ to see [X] as per the Court Orders for supportive therapy and to explore [X]’s anxiety issues further. By the next (and final) session, the plan had changed to an arrangement for Ms Gillen to ring Ms A after the Court proceedings ‘as she wasn’t sure about the arrangements – to make further appointments.’ It was not clear why Ms A’s plan changed so radically after only two sessions with [X].
Interestingly the mother said in October 2014 that Ms A had told her the same thing as Mr D ie that she couldn’t do anything for [X] which the parents couldn’t do themselves.
An additional piece of information which only saw the light of day when Dr G inspected subpoena documents for the preparation of the second family report was that [Q] School had a meeting with the mother and the maternal grandmother in June 2013 during which they expressed concerns about [X]’s behaviour and how it was impacting on her education. Dr G summarised the information in her October 2014 report as follows:
The subpoenaed documents contain Services Meeting Minutes dated 11 June 2013 on a Family and Community Services letterhead. The meeting was conducted at [Q] School and the subject of that meeting was [X]. Present at the meeting were Ms Gillen, Mrs G (the maternal grandmother), the Benevolent Society case manager, the Child and Family Health nurse, the Assistant Principal of [Q] School, [X]’s class teacher, the [Q] School’s student support worker, a caseworker from Community Services and another worker from Community Services. 9 my emphasis). Apologies were received from [name omitted], a psychologist from Life Solutions and the Casework Manager of Community Services. The minutes open with the statement that Community services is concerned about [X]’s behaviour. It continues, ‘CAMHS have recommended a comprehensive mental health assessment of [X]. Both parents need to be part of that assessment.’ ( my emphasis). Despite that this meeting was held fifteen months ago, it would appear that this comprehensive mental health assessment, involving both parents, has not been done. This would appear to be both a systems failure and also a failure of the custodial parent. The minutes further state that a ‘Community Services risk assessment (was) completed and (the) result was high.’ Concerns were raised by the Assistant School principal that [X]’s school attendance was, at that time, 71% (implies almost one in three school days absent). [X]’s teacher said that [X] was unable to focus for long in class. Ms Gillen raised concerns that [X] is being bullied at school and spits in children’s faces after returning from visits with her father.

[X]’s behaviour continued to be concerning in 2014.
The maternal grandmother revealed during cross-examination in May 2014 that [X] had been in trouble at school for threatening to cut another child’s throat. Documents produced in answer to subpoena and tendered at the October 2014 hearing included the following report of this incident by the school:
Has been stalking and intimidating 2 boys in our class
- saying I love you, giving notes
- then saying ‘I will cut your throat’ when the boys don’t want to play with her
The father also gave evidence of continuing problems. He said that when he collected [X] up at [M] on Friday 6 June 2014 for his June weekend she complained of a sore throat. He said that she became distressed on the drive home she became very distressed and shouted offensive words and used her hands to scratch at her neck constantly[9].
[9] Father’s affidavit filed 10 October 2014 paragraph 6.
He said that when they arrived home [X] laid on the bed and shouted out comments such as “my fucking throat is killing me, help me daddy.” He said that when he approached [X] with a cup of water she became wild and attacked him, lashing out and kicking him and scratching his forearms. She said:
Fuck off bitch, don’t come near me, you idiot, don’t fucking hurt me.
The father said that he immediately backed off and stood in the doorway and that [X] then cried out:
Help me daddy. Come back I need you. Help me.
He said that he came back and tried to comfort her but she continued to cry for help followed by lashing out at him and attacking him and ordering him to go away.
The father said that he was eventually able to administer [X]’s Ventolin puffer and he then put her in the car and drove to a late night chemist and bought a number of sore throat medicines. He said that an anti-inflammatory spray and Nurofen eventually brought [X] some comfort and that for the rest of the visit she was affectionate and non-distressed.
The father said that he was extremely concerned about [X]’s vocabulary and her reaction to having a minor sore throat. He said that he told the mother about the incident at changeover and gave her the medications he had bought.
An additional concern raised by the father in his October 2014 affidavit was that [X] had told him that nobody liked her at school and that she wanted to die.[10]
[10] The father’s affidavit filed 10 October 2014.
This resonated with a concerning entry in the records produced by [T] Mental Health Contact Centre that the mother told [T] Mental Health Unit in May 2013 that [X] sometimes threatened self harm and said that she wanted to die.
Dr G reiterated during cross examination in October 2014 that [X]’s lack of emotional regulation was very concerning. She said that the outbursts which involved volatility and swearing and [X] wanting help and then pushing people away and responding with scratching biting and swearing was a disproportionate response.
Dr G pointed out all of the consequences which could flow for [X] if she did not get help including behavioural difficulties in high school, possible juvenile detention and teenage pregnancy.
Dr G also expressed concern in her October 2014 report about some of [X]’s bizarre statements and said that she considered that this also pointed to an urgent need for [X] to be assessed.
An issue which arose during the trial was the derivation of [X]’s problems.
In her May 2013 report Dr G said as follows:
[X] is an extremely burdened child. Her short attention span, angry and aggressive outbursts and obvious anxiety attest to this. I am unable to specify the precise aetiology of her distress but would venture to hypothesise that it is caused by the conflict between the parents and [X]’s felt need to ‘manage” her parents so that each of them continues to be OK and continues to love her.
The mother’s case was that the conflict between the parents was the root cause of [X]’s disturbed behaviour as well as her distress (although she also maintained of course that the father’s sexual abuse was also the cause).
This seems unlikely because [X] has not been exposed to behaviour like this between the parents. The parents do not like each other ([X] believes they hate each other) but [X] has not witnessed any aggressive behaviour or shouting or name calling between them. The only incidents which have involved any aggression where when the father drove to [W] many years ago and the maternal grandmother pulled [X] away when she answered the door and would not let her see the father, and a tug of war at changeover when the maternal grandmother tried to take [X] from Ms H.
Far from being of the view that parental conflict was behind [X]’s behaviour Dr G expressed the view during cross-examination that if [X] had counselling for her anger and distress and hyper vigilance and started to be a more normal little girl her parents would not be so much at loggerheads.
Dr G was clearly of the view that for [X] to be acting in this way she must have been exposed to such behaviour. In her May 2013 report she said as follows:
Her verbal aggression includes extremely foul language often of a sexually denigrating variety. Both maternal and paternal families express shock that a child of her tender years would know such language. It is extraordinary, and beggars belief, that [X] could have such a facility in obscene language and her family would be at a loss to explain how she acquired it. Someone [X] associates with must be using this type of invective.
During cross-examination in 2014 Dr G reiterated that she felt that the child’s foul language and aggressive acting out must be due to some sort of social learning, some sort of modelling from what the child was witnessing or from the media.
The father denied that any swearing or acting out by adults occurred in his home and there was nothing in the evidence to suggest that he was likely to behave in this way or condone such behaviour. The father takes considerable pride in his position as a police officer and presented as a very serious man.
Dr G commented during cross-examination in both May 2014 and October 2014 that given that [X] had been spending two nights a month in the father’s home for the last two years or more and the rest of her time in the mother’s home if she was learning anything detrimental it was likely occurring in the mother’s home rather than the father’s.
The mother insisted that [X] had not learnt her swearing from her. However she was asked how often she swore at home and said “every few days.” She was asked whether she used the words fuck bitch shit and dammit. She replied that she said shit and dammit and later admitted saying bitch. She denied saying fuck.
The mother’s insistence that [X]’s disturbed behaviour must be down to something the father was doing or modelling because it only started when she started spending overnight time with the father in October 2010 is undermined by the record of a meeting between the mother and a DOCs caseworker on 11 November 2008. The meeting did not occur in connection with any complaint made by the father and it was nominally about mother’s housing options but included discussion of a number of topics.
On 11 November 2008 [X] was 21 months old and by agreement was seeing her father for a short period every second month at McDonalds in [M] with the mother present. She was yet to spend any unsupervised or overnight time with him.
The caseworker’s notes include the following:
[X] was well dressed, very, very active, disobeying [Ms Gillen] and tantrum throwing when it was time to pack the toys away. [X] also pulled her mother’s hair and pinched her ear while being strapped into her pram.
Issues discussed
1) Childcare for [X] 2 days a week
[Ms Gillen] stated that she could not put [X] into childcare as she is worried about her biting, hitting and swearing. People would think she was a bad mother and couldn’t cope. Also her ex partner might take [X] from her. I explained to [Ms Gillen] that [X] was going through a normal stage of development and that the Childcare staff were fully trained and could assist with the boundary setting for [X]. [Ms Gillen] said she would think about childcare.[11]
[11] Exhibit J
The record also states as follows:
I discussed with [Ms Gillen] the issue of [X]’s behaviour (biting, hitting, tantrums etc) and the need for setting appropriate boundaries. I suggested a one on one Parenting Program.
[Ms Gillen] admitted that she does have problems coping with [X]’s tantrums etc. She is agreeable to attending a one on one Parenting Program.
The case worker recommended to the mother that she access personal counselling and the mother agreed to do so and a referral was made to Ms M. The mother apparently went to an appointment with Ms M but the records reveal that the mother became upset that Ms M would not allow her to read the referral letter which DOCS sent her and she told DOCS that she found Ms M confronting. The mother did not make further appointments with Ms M and the referral was cancelled.
I agree with Dr G that it seems unlikely that [X] has learned this behaviour in the father’s home and that it is more likely she has learned it from something modelled in the mother’s home or while she has been in the mothers care. However I cannot make a definitive finding about why [X] is behaving as she is because there is always a possibility that some inherited tendencies are also at play.
Whatever the cause of [X]’s behaviour she urgently needs assessment and help and as part of deciding future parenting arrangements for [X] I will have to consider which of her parents is more likely to ensure that she receives that help.

[X]’s best interests

The issue of who can best ensure that [X] receives that help is only one thing I have to consider of course; any orders I make about future parenting arrangements for [X] must be orders determined by treating her best interests as the paramount consideration, and s.60CC(2) and (3) of the Family Law Act 1975 set out the matters to which I must have regard in order to determine her best interests.
The version of S.60CC (2) & (3) which I must apply is the one in force in March 2012 when the proceedings were commenced, not the current version which came into force on 7 June 2012.
S.60CC(2) contains the primary considerations which are:
i)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
ii)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(3) contains the additional considerations which include such things as any views expressed by the child, the likely effect of any change in the child’s circumstances, the capacity of each of the parents to provide for the needs of the child and the child’s aboriginality among other things.
In some cases it is necessary to make findings about the s.60CC(3) matters before the matters in s.60CC(3) can be properly considered and this is such a case.
The first of the additional considerations is any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
During interviews for the May 2013 report Dr G asked [X] what she would wish for if she had three wishes and reported:
[X]’s first wish was to have ten wishes. Her second wish was to live with her Dad. Her third wish was to jump in a puddle with [Y].[12]
[12] May 2013 Family Report paragraph 79
[X] had just turned 6 in April 2013 when the interviews were conducted and there was no evidence that the second wish was something the court could place weight on.
Dr G did not report [X] as expressing any views when interviewed in September 2014.
The next s.60CC (3) matter is the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child.)
The father and members of the paternal family maintained that [X] had a good relationship with the father and evidence from Dr G corroborated this.
In May 2013 Dr G said [X] was observed to be comfortable with both of her parents and both of her step-parents.
[X] was brought to the interviews in September 2014 by her mother and Dr G reported as follows:
.....[X] said spontaneously that she ‘hated’ her father and ‘hated’ Ms H. She asked, ‘Do I have to see him here?’ When answered in the affirmative, [X]’s eyes lit up with apparent pleasure and mischief. ‘Oh-oh,’ she said, and hid behind a chair.[13]
[13] October 2014 Family Report paragraph 28
Dr G took [X] to see her father and reported as follows:
[X] took obvious pleasure in hiding from her father under a table in the playroom and then jumping out at him gleefully. [The father’s] demeanour was upbeat. He asked for a hug and [X] readily complied with his request. Mr Bowles told [X] that he missed her and [X] replied that she missed him too. He presented [X] with a small police promotional sample bag. [X] told her father a story about her having kicked a zombie police officer. Mr Bowles laughed and then gently challenged [X] with, ‘There’s no zombie police officers are there?’[14]
[14] October 2014 Family Report paragraph 30
Dr G went on to say:
When her step-mother, Ms H, entered the room, [X] spontaneously told her that she missed her, as she gave her a hug. Almost immediately her step-mother was on the floor with the blocks, engaged in happy chatter and play. [X] took her father’s face in her hands and suggested that she build a house of blocks for him. After this construction, [X] and her father lay reclining on the blocks. Ms H was seated on the ground. Mrs B senior, the paternal grandmother, was now in the playroom and seated on the lounge. The family fantasised about the future together. There was mention of the possibility of [X] and her father busking using a black guitar with a skull case that [X] desired. [15]
[15] October 2014 Family Report paragraph 32
The father described many pleasurable activities he did with [X] and there was no suggestion that she was ever resistant to going with him at changeovers. The mother said that [X] asked to come home during a telephone call in the mid-year school holidays in 2014 but the mother was not a witness of credit. I am satisfied that [X] has a good relationship with her father.
I am also satisfied that [X] has a good relationship with her step-mother Ms H and with the members of the paternal extended family.
Dr G observed [X] to relate well to the mother during the interviews in May 2013, and she did not note anything of concern about their interaction in 2014.
This evidence suggests that [X] has a good relationship with her mother which was the mother’s case.
[X]’s relationship with [Y] is important.
Dr G was troubled that [X] tormented [Y] during the 2014 observation session and that rather than protecting [Y] the mother told him that he was naughty. However I am satisfied that [X] loves [Y] and has a close relationship with him notwithstanding her behaviour toward him during these sessions. The mother tendered a bundle of photos on 23 October 2014 which showed the children interacting happily and there was evidence of [X] singing her favourite songs to [Y] and reading to him.
The father had no hesitation in agreeing that [X] talked about [Y] and loved [Y] and would be distressed at being separated from him.
No maternal relatives attended the family report interviews in September 2014 and I have no independent evidence about their relationships with [X]. There was no evidence of [X] making any complaint about them to the father.
I must have regard to the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.
I have no concerns about the father’s willingness and ability to facilitate and encourage a close and continuing relationship between [X] and her mother.
This is not a case where a father has been trying relentlessly for years to take over as primary parent. For the first five years of [X]’s life all the father asked for was time with her. I am satisfied that he is seeking residence now solely because of a desire to ensure that his daughter’s behavioural and emotional problems are addressed and that she receives good day to day care and a good education.
The father is highly critical of the mother’s parenting of [X] but to his credit he has never acted in a high handed manner by withholding her after a contact visit and there was no evidence that he denigrated the mother to [X]. He displayed no personal antipathy toward her either in his affidavits or when giving evidence and there was no suggestion that he was motivated by child support considerations in pursuing his application.
In contrast I do have concerns about the mother’s willingness and ability to facilitate and encourage a close and continuing relationship between [X] and the father.
I do not hold the mother’s relocation to [W] when [X] was three months old against her; there was no evidence that this was motivated by a desire to exclude the father from [X]’s life and it was natural for the mother, a young parent with a young baby, to want to be with her family.
The mother was responsive to a degree when the father sought time with [X] between 2008 and 2011 and it was not her fault that the father prioritised his police training over spending time with [X] in 2009. The father was disappointed when the mother would not allow his partner to bring [X] to his graduation but [X] was only 2 ½ and I can understand why the mother might have been reluctant to send her off with a person the mother hardly knew and who had had little to do with [X] up to that point.
However the mother has never been pro-active in ensuring that a relationship has developed and been maintained between the father and [X] and she was slow to reach agreement with him when earlier agreements expired, resulting in long gaps between the father seeing [X]. I also consider it more likely that not that the mother made up information in 2010 with a view to branding the father a sexual abuser. This was hardly designed to ensure that he had an ongoing place in [X]’s life.
I accept the father’s evidence that he contacted the mother in late 2011/early 2012 about [X] starting school and that the mother did not respond or involve him in any decisions about [X]’s schooling. The father said and I accept that the mother did not inform him of the name of the school or the day on which [X] was to start and he missed out on attending her first day at school.
The mother did not include the father’s details on [X]’s enrolment form at [Q] School and when asked about it said that she have his details to the school when she was ordered to do so by the court.
The attitude of the maternal grandmother does not help either. I accept the father’s evidence about an incident which occurred on 12 August 2012. He said that he drove to [Q] with the intention of visiting [X] as he had not seen her for nearly twelve months.. He said that he had contacted the mother multiple times in the weeks before trying to organise a visit but had not received any reply. On arrival he knocked on the door and [X] opened the door and said “Daddy, I’ve missed you.” The maternal grandmother came up however and grabbed [X] and slammed the doors shut. He said he heard [X] screaming out “That’s my Dad! Let me go you fucking bitch. Help me Dad.”
The maternal grandmother like the mother holds the false fixed belief that the father has sexually abused [X].
The mother demonstrated some antipathy toward the father during the hearing. The father has a slight speech impediment and on one occasion when this was apparent because of a word he used in one of his questions and she cruelly and cleverly mocked it when giving her answer.
The mother’s dislike of the father shone through in answers such as the one she gave when she was asked during cross-examination about when she first had an involvement with Brighter Futures. She responded “When [Mr Bowles] first called DOCS on me.”

When it was put to the mother that Mr D had cancelled the referral because the mother did not keep appointments she responded “He might have documented that but he didn’t tell me that”
Mr D’s notes contain an entry stating that he had found the mother disorganised and unreliable in regard to appointments. He described the mother as vague and forgetful of her appointment times and also said “[Ms Gillen] has poor organisational skills and memory problems”.
The mother told Dr G that she had taken [X] to six sessions with Ms A but Dr G inspected documents produced by Ms A and said as follows:
During the interviews for the updated Report, Ms Gillen stated that she had taken [X] to ‘six to eight’ sessions with psychologist, Ms A. The subpoenaed documents indicate that, in fact, [X] was taken on three occasions to Ms A: an intake interview with Ms Gillen on 22 May 2014, and counselling sessions for [X] on 5 June 2014 and 19 June 2014. On 5 June 2014 Ms A noted her ‘plan’ to see [X] as per the Court Orders for supportive therapy and to explore [X]’s anxiety issues further. By the next (and final) session, the plan had changed to an arrangement for Ms Gillen to ring Ms A after the Court proceedings ‘as she wasn’t sure about the arrangements – to make further appointments.’ It was not clear why Ms A’s plan changed so radically after only two sessions with [X].[17]
[17] October 2014 Family Report paragraph 40
Interestingly the mother said that Ms A had told her the same thing as Mr D ie that she couldn’t do anything for [X] which the parents couldn’t do themselves.
The following conclusions are open on the evidence:
i)Whatever the reason for [X]’s disturbed behaviour she urgently needs assessment and counselling. Her behaviour is impacting on her relationships at school and is going to get her into ever increasing amounts of trouble at school and in the community;
ii)The mother has not been successful to date in ensuring that [X] has attended counselling regularly and remained engaged with a counsellor. Given her minimising of [X]’s problems and the comments by Mr D about her being disorganised and forgetful it is highly likely that if counselling is left in the mother’s hands after the court proceedings end it will not occur.
iii)The mother does not accept that [X] has mental health issues and appears disconnected from the child’s distress. Her response to any concerns raised about [X]’s behaviour is to blame the father and the litigation. As Dr G pointed out attempts to blame the father ring hollow given that [X] has lived with the mother all her life and for the past three years has spent only two nights a month with the father and half of the school holidays.
iv)Another issue is a practical one. The mother lives in a small country town and some services are only available in larger towns such as [omitted] and [T]. The mother does not have a car or a drivers licence and there was no evidence of frequent public transport between [Q] or the larger towns. This increases the concern about whether [X] will receive the help she needs if she remains with the mother.
v)The 2008 DOCS records which suggest that the mother was distrustful of Ms M when referred to counselling herself and did not follow through with the counsellor do not inspire confidence in the mother committing to and rigorously following through with counselling for [X].

Parenting capacity generally

The father complained that [X] had come to him recently with severe head lice infestations and scabs on her head. He produced photographs of lice on the child’s back and shoulders and in her hair.
The mother agreed that [X] had head lice at the times in question but maintained that she treated head lice promptly when they appeared and that [X] had picked them up at the father’s place.
It seems most unlikely that [X] contracted head-lice while with the father given that he has no other school age children but head lice are an unfortunate fact of life whosever home they turn up in and the evidence is not sufficient to allow me to conclude that the mother has neglected [X] by failing to treat her head lice.
Of more concern is the issue of [X]’s teeth.
The father said that in August 2012 [X] complained of tooth ache. He discovered that she had a number of decayed teeth and in the September 2012 school holidays he took her to the dentist. He was given a report which showed dental caries in 9 teeth and tooth discoloration and second caries in a 10^th.
The father sent a copy of the report to the mother and also reported the matter to DOCS.
The mother said that she had taken [X] to a dentist in [T] in January 2012 and had been told that all was well. She said that she received a call from DOCS in October 2012 and as a result took [X] to the dentist and was told that she had bottle cavities and she was given one filling.
The father said and I accept that he continued to be concerned and offered to pay for treatment but the mother did not take up the offer. The father said that he could not arrange for the treatment himself because of the limited time [X] spent with him.
In March 2013 [X] had to be admitted to hospital in [T] so that surgery could be carried out because she needed dental treatment and would not tolerate the idea of a needle. The father travelled to [T] to visit [X] in hospital.
The father said that [X] continued to tell him that her teeth were hurting and that while two teeth had been removed she still had cavities.
The evidence establishes that [X] has experienced serious dental decay which eventually had to be treated at hospital. Tooth decay in itself does not imply parental neglect and I need to make some allowances given that the mother is dependent on the public health system, but is it concerning that the mother let the decay get to the point where [X] needed treatment at hospital.
There is reference in the [Q] school notes on 8 April 2014 to [X] coming to school with no food or inappropriate food or even rotten food.
The mother denied that any of these things had occurred but she was not a reliable witness and I cannot believe that the school would simply have got this wrong. I cannot determine from the note however whether this was a long standing problem or a short term problem in other words it is impossible to determine from the bare note how serious the problem is.
I am concerned about the possibility that the mother may periodically have problems with finances. She has had involvement with DOCS and through them the Brighter Futures program since 2007. She blamed the father for her involvement with DOCS and it is true that he had made a number of notifications to them, but the DOCs records show that the mother also sought assistance from DOCs in respect of housing and financial difficulties, matters not connected with any complaint by the father.
I cannot be entirely certain of the extent of DOCs involvement with the mother. Records indicate that her mother’s case was closed with DOCS on 15 June 2009 because she failed to keep in contact with Brighter Futures, but she must have re-engaged with Brighter Futures because they were present at a meeting convened by the school in June 2013.
Brighter Furthers remained engaged with the mother until the end of 2013. They told the school in 2014 that they had lost contact with her and the mother told me in October 2014 that Brighter Futures had determined that she no longer needed assistance. I cannot be certain where the truth lies about this in the absence of documents.

The mother’s mental health

The father flagged a concern about the mother’s mental health and alleged that when she was in her teens she spent time in a mental health unit after stabbing her sister with a kitchen knife.
The mother denied that she had any concerning mental health issues. She said that she suffered from depression which was due to the father’s harassment of her and that she suffered from anxiety and was working with her doctor and counsellor to overcome it.
The mother said that she suffered from anorexia in her teens but denied having any other mental health issues and denied that she had a history of self-harm or suicidal tendencies. In her affidavit filed on 25 October 2013 she said:
I have not ever stabbed my sister with a kitchen knife.[18]
[18] Mother’s affidavit filed 31 October 2013 paragraph 144
Taken at its very best this might be an accurate statement if the mother had for example inadvertently wounded her sister forgetting she had a knife in her hand but it was clearly an attempt to cover up the fact that a very concerning incident had occurred.
Records produced on subpoena confirmed that the mother was admitted to a mental health unit in 2005 after an incident with her sister. The hospital note reads as follows:
Patient has decreased appetite, loss of weight in the past 2 months; feels tired and have lack of sleep. Seen by social worker and stated that she attacked her sister with knives this morning. Patient’s sister needed surgery as a result of the stabbing.
Patient also states that she has been taking drugs for many years, taking her mother’s Duramine tablets regularly, drinks lots of spirits, has bouts of using Ecstasy, Speed, Marijuana. Stated that underlying reason she uses drugs was she never fully recovered from an accident 2 years ago when she was hit by a car whilst she rode her bicycle. Patient felt injustice as the driver was let off. Patient has had suicidal ideations in the past.
Reviewed by Mental Health. Impression of Adjustment disorder, major depression disorder. Patient transferred to [hospital omitted].[19]
[19] Exhibit F
During cross-examination the mother admitted that she had a knife in her hand during an argument with her sister but claimed that her sister was cut and not stabbed. She remained adamant that she had not stabbed her sister and said:
I have never stabbed my sister with a kitchen knife. I wounded my sister with a kitchen knife.
It is abundantly clear that the mother was not straightforward and honest about what happened with her sister.
The mother had a short engagement with a counsellor in 2008 but to the best of my knowledge has had no ongoing involvement with counselling or with a psychologist or psychiatrist after her hospital admission in 2005.
Dr G read the subpoena material from DOCS and reported as follows about an entry in March 2008:
DOCS records that Ms Gillen’s counsellor had said that Ms Gillen had grown up in a violent home where her father was a cannabis user and dealer, that the trauma of this still affects her, she appears depressed and that long term (“possibly five years duration”) counselling is indicated.
DOCS attempted to get the mother to engage with a counsellor called Ms M, but the mother only had one visit with Ms M and then declined to see her.
I cannot draw any conclusions either from the 2005 hospital records or the 2008 DOCs notes about the state of the mother’s mental health at present, but the mother’s lack of honesty about what happened with her sister, her lack of credit as a witness generally and her resistance to attending counselling in 2008 lead me to feel uneasy about the mother’s mental health.

Drug use

The father claimed that soon after he commenced a relationship with the mother he observed her smoking cannabis. He alleged that she smoked cannabis with the paternal grandfather and that he observed some cannabis plants growing at her father’s home. He alleged that the mother told him that the plants belonged to her and her father and were for her personal use. He also alleged that she took her mother’s pills.
The father said that he was strongly opposed to drug use and left the house when the mother smoked cannabis and also tried to persuade her to give it up.
The mother said that she had only ever used cannabis three times and that she was given it by the father on each occasion.
I prefer the father’s evidence as he was by far the more reliable witness and the 2005 hospital records suggest that the father’s evidence about the mother’s cannabis use in 2006 is likely to have substance and that she very likely has used other drugs in the past. The issue I need to consider however is whether there is any evidence that the mother is using drugs at present.
I cannot place weight on the comment in the DOCs records that the mother has a reputation of being a heavy cannabis user. DOCS do not reveal their sources and I cannot rule out the possibility of a malicious or unfounded notification.
Judge Harman made an order on 9 May 2013 that each party undergo urinalysis within 7 days. The father complied (with negative results). The mother did not do a test until 4 June 2013 and her result was also negative for the presence of illicit drugs.
Further tests were done by the mother in August and November 2013 and they were also negative for illicit drugs.
It would have been preferable if more tests had been requested but it is not open to me on the state evidence to find that the mother is currently using cannabis. There are no positive drug test results and no evidence of anyone seeing the mother using illicit drugs or observing anything about the mother which would suggest that she is using illicit drugs.
The father alleged that the mother was a problem drinker when he knew her in Sydney and that on one occasion he found her passed out in a public place seriously affected he believed by alcohol and took her home and then called an ambulance and she was taken to hospital. Hospital records confirm that this event occurred.
The father’s brother Mr B said that in his opinion the mother was a big drinker in 2006.
The totality of the evidence about alcohol consumption does not allow me to conclude that the mother was, except perhaps occasionally and when she was much younger, a problematic user of alcohol. There was no evidence that she used alcohol problematically at present, indeed no evidence that she drank at all.

The mother’s partners

The father raised a concern that the mother had had numerous partners during [X]’s life including Mr A (surname unknown) in 2008, Mr H in 2010, Mr L and then Mr J in 2012. He submitted that this not only indicated instability but raised a concern due to the fact that [X] had called Mr H ‘Daddy’ and it was possible that if [X] was sexually abused in 2010 it was by Mr H.
The father also alleged that [X] had been instructed by the mother to call her various partners “Dad.”
No cross-examination was directed to this issue by the Independent Children’s Lawyer and none that I can recall by the father and Dr G was not asked about it. I cannot conclude that the father’s account of the mother’s partners is necessarily wholly accurate in these circumstances nor draw any conclusion about its impact on [X]

The abuse allegations

The mother made an allegation in 2010 that the father had sexually abused [X] which resulted in [X] being medically examined and interviewed.
In some circumstances this might be excusable but I am deeply concerned about the possibility that this complaint was fabricated, given amongst other things the considerable difference between the graphic detail in the complaint as made in 2010 and the graphic detail in the mother’s 2013 affidavit.
[X] was interviewed again in 2012 by someone from JIRT when an allegation of sexual abuse was made but I cannot be certain who made the complaint.
The mother made a graphic complaint about a hand-shaped bruise on the child’s ankle in May 2014 which she seemed to want to draw back from in October 2014 and which I am satisfied was fabricated.
The mother fabricating complaints is abusive of [X] because it either exposes her or potentially exposes her to medical examinations and questioning by authorities. It also has the potential to undermine her relationship with her father or interrupt it while investigations are undertaken.

Conclusion about the mother’s parenting capacity

I have considerable concern about the mother’s parenting capacity overall.
Putting the mother’s case in the best possible light the allegations about head lice, substance abuse, alcohol consumption and partners must be put aside, and I cannot make findings that the mother currently has mental health problems.
I also cannot be certain that there is a problem month in and month out with the provision of food and nor can I be satisfied that the fact that [X] has serious tooth decay is a sign of neglect.
However there is enough to raise red flags as Dr G put it.
The issues about the mother’s mental health in the past and the issues raised by the father about tooth decay and by the school about food are a disquieting part of a picture when taken together with the disturbed behaviour [X] has been exhibiting for some considerable time, the concerns expressed by the school about her academic performance and the mother’s failure to follow through with counselling for her even though the school and Dr G separately raised in 2013 that it was essential that this occur.
I have no confidence that the mother has the capacity to properly provide for [X]’s needs.
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
I have referred earlier in this judgment to the issue of [X]’s behaviour and there are not other issues which are relevant here.
I must consider if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right
The mother identifies as aboriginal and [X] is an aboriginal child. The father is not aboriginal.
The maternal grandmother gave evidence that she was connected to tribes from the [omitted] areas and about how the mother was brought up to respect all cultures, not just aboriginal but also [omitted] which are also part of her heritage.
As Dr G pointed out there was no evidence of the mother or her family being involved in any particular activities in connection with their aboriginality but they are proud of their heritage and want [X] to be proud of it.
The maternal grandmother alleged that she had heard the father make some negative comments about aboriginals when he and the mother were in a relationship in Sydney.
The father denied knowing that the mother was aboriginal prior to 2011 when it was referred to in the current court proceedings and denied making any of the remarks attributed to him.
The maternal grandmother’s recollections could be inaccurate and coloured by the antipathy which now exists between the families. The father was generally a witness of credit and I prefer his evidence that he did not make any such remarks.
The father said that he accepted [X]’s aboriginality. He said that he had made inquiries at [H] School and it offered among its other services an aboriginal student support program. He also said that he had done a ‘policing aboriginal communities’ course during his training which had given him information about understanding indigenous cultures.
Dr G agreed when asked about it by the mother’s counsel that aboriginal children can best enjoy and learn to value their aboriginal heritage in the company of other aboriginal people. However the mother did not identify any ceremonies or knowledge that [X] could only take part in or obtain if she continued to live primarily with the mother as opposed to spending time with her regularly. I accept that being with other aboriginal people may ensure that a child genuinely identifies with and values their heritage but the father accepts [X]’s aboriginality and the orders he proposed will ensure that she continues to spend time with her maternal family.
I must consider the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

The father failed to pursue time with the child strongly and consistently between 2007 and 2010. He prioritised his police training in 2009 over spending time with [X] and it was his sister and not himself who first filed a court application seeking parenting orders. In that respect the father showed a somewhat poor attitude to the child and the responsibilities of parenthood. He has certainly been an interested parent since 2010 however.
The father has always complied with his child support obligations.
In failing to take [X] to counselling consistently as recommended by Dr G the mother showed a poor attitude to the child and the responsibilities of parenthood but I have dealt with that issue earlier.
I must consider any family violence involving the child or a member of the child’s family.
For reasons detailed earlier I do not accept that the father was violent to the mother or that he has sexually abused or deliberately harmed [X].
I cannot make findings about the mother’s culpability for the knife incident between her and her sister in 2005. The mother and her family have adopted the position that whatever happened was an accident. It is troubling that the mother had a knife in her hand during an argument with her sister and troubling that she was less than truthful about the incident but I cannot take it further than that.
The father alleged that in 2006 he saw the mother having a physical fight with the maternal grandmother which involved the maternal grandmother slapping the mother and pushing her to the ground and the mother pulling her mother’s hair. He said that they were pulled apart by family members and that he was shocked and left the home.
The mother denied the incident occurred but I have no reason to suppose that the father has fabricated this evidence. However it is not possible to make any findings about what the surrounding circumstances where and therefore what the significance of the incident is. Parents of teenagers occasionally are goaded beyond their limits and act out of character. There was no evidence that anything similar had occurred in the last eight years.
I must consider any family violence order that applies to the child or a member of the child’s family if the order is a final order the making of the order was contested by a person.
There are no family violence orders in place nor have there ever been.
I must consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
I incline to the view that an order that the child lives with the father is that order because the father will certainly take steps to obtain help for his daughter, but this is a difficult case and there is a possibility of further proceedings no matter what order the court makes.
I must any other fact or circumstance that the court thinks is relevant.
The mother and father do not have free and easy communication.
The mother’s case was effectively that all the difficulties in the parties’ communication were down to the father. She alleged that he had harassed her with constant complaints to DOCS and the Police and was rude to her. She alleged that after a court mention in May 2012 the father sent her an email saying “Low down dog” and that he also sent a text message saying “Won’t be long now bitch? It’s when you least expect it.”
The father denied sending abusive emails and text messages. The mother was not a witness of credit and I do not accept her evidence about the things allegedly said to her by the father.
I do not accept that the parties have problems with communication because of any overbearing or abusive behaviour of the father.
It is now necessary to return to the primary considerations.
The first primary consideration is the benefit to the child of having a meaningful relationship with both of her parents.
I am satisfied that [X] will have a meaningful relationship with both her parents if she lives with the father. Absent any issues which might arise because the father is concerned about her safety in the mother’s care he can be trusted to comply with court orders about [X] spending time with the mother and he does not denigrate the mother to [X].
The mother’s opportunity to provide [X] with nurture and guidance will be restricted if she only sees her once a month and during school holidays but the relationship between mother and daughter can still be “significant, valuable and important to the child.”[20]
[20] Mazorski & Albright (2008)37FamLR518
I do not consider that [X] is likely to be subjected to or exposed to abuse neglect or family violence in the care of the father. I do not accept that there is any substance in the mother’s allegations about him.
I have considerable concern about whether [X] will be able to have a meaningful relationship with the father if she continues to live with the mother.
The mother has complied with court orders since they were made in 2012 but she was not pro-active in encouraging a relationship prior to court proceedings commencing in 2012, she left the father off the child’s school enrolment form, she clearly dislikes and resents the father and in 2010 and 2014 made serious unfounded allegations against him. This does not speak of someone who values the other parent and the other parent’s relationship with the child and who will support the continuation of that relationship.
There is a risk of [X] being neglected in the mother’s care in that pressing dental medical or psychological needs will not be attended to because the mother lacks the will or the means or both to ensure that this occurs.
I mention here that the father alleged that in 2013 [X] told him that the mother’s partner Mr J had touched her on the bottom indicating her buttocks area and that he reported this to DOCS. He said that he also rang Mr J to speak to him about the matter and Mr J denied the incident and suggested [X] might be making it up. I cannot find that [X] was abused by Mr J and in any event Mr J is no longer in the mother’s life.

Parental Responsibility

At present the parties have equal shared parental responsibility for [X] pursuant to an interim order, but s.61DB of the Family Law Act provides that when making a final parenting order I must disregard the allocation of parental responsibility in the interim order.
Pursuant to s.61DA I am obliged to apply a presumption that it is in the child’s best interests that her parents have equal shared parental responsibility for her, absent a finding that one of the parents or a person living with one of the parents has engaged in abuse of the child or family violence.
Neither parent has engaged in family violence or abused the child as abuse was defined in the Family Law Act 1975 prior to 7 June 2012. However I can decline to apply the presumption if I consider that it would not be in the best interests of the child’s best interests for it to apply.
The starting point for consideration of this issue is that no matter which parent [X] lives with after I make orders decisions will need to be made almost immediately about her being assessed at [omitted] Hospital and having further counselling or treatment.
The parents do not have a good relationship and the mother is resentful and distrustful of the father. The father proposed an order for equal shared parental responsibility but I would be most reluctant to create a situation where conflict arose as a result of the parties trying to reach agreement about her assessment and treatment or where one parent failed to consult the other and contravention proceedings followed.
There is another layer of difficulty however, because this is a case where different considerations apply to this issue depending on which parent [X] lives with.
If [X] continues to live with the mother then I consider that I should make an order for equal shared parental responsibility and require the mother to consult with the father despite the risk that she will not do so and that contravention proceedings may follow. This is because I am not satisfied that the mother can be depended upon to make good decisions for [X] and follow through with treatment and the father needs to be involved to increase the prospect of that occurring.
On the other hand if I make an order that [X] lives with the father I would be inclined to make an order that the father have sole parental responsibility at least about medical and educational matters, simply to ensure that decisions about educational and medical matters are made promptly and without any delay or conflict. I am satisfied that the father will be proactive and will make good decisions for [X].
There is no reason however why the parents should not otherwise have equal shared parental responsibility, especially as the father supports this.

The Family Consultant’s evidence

In her October 2014 Family Report Dr G expressed the view that without timely intervention [X]’s social, educational and emotional outcomes would be seriously compromised. She recommended that there be a change of residence forthwith and further said as follows:
In such circumstances it is often recommended that the transition take place at the end of the current school term, to enable the child to do the emotional work associated with termination from peers and teachers at her old school and transition to the new school at the beginning of the school term. This is a possibility in this matter and should be considered by the Court. However, in this event, the Court must have confidence that Ms Gillen has the capacity to transition [X] sensitively, and not distress the child further. Indications are that this capacity must be seriously questioned. An alternative would be for Mr Bowles to take [X] to [Q] School before the end of the year to say her farewells.[21]
[21] October 2014 Family Report paragraph 46
Dr G noted that a change of residence would mean a separation of siblings but did not consider that the sibling relationship should be prioritised over the need to ensure that [X] received help.
Dr G recommended that [X] be assessed at [omitted] Children’s Hospital and that if a change of residence happened immediately she not spend time with her mother until the Christmas school holidays and then spend a one week block with her after Christmas. She recommended that from the commencement of the 2015 school year [X] spend time with her mother one weekend a month from Saturday morning to Sunday afternoon with changeover at a mid-way point and for one week in the three shorter school holidays and two separate weeks at Christmas.
Dr G was not shaken in respect of any of her recommendations during cross-examination in October 2014 and re-iterated that a change in [X]’s care needed to occur at once. She said that there were enough red flags to make her extremely concerned about the mother’s parenting capacity and [X] appeared to have a serious psychological disturbance and be quite vulnerable.
Dr G has prepared two reports and has had the opportunity to interview [X] on two occasions sixteen months apart and note the fact that her behavioural disturbances had not improved despite the recommendations in the first report. Dr G prepared two thorough well thought out reports and was not shown to have made any factual errors. She is an experienced family consultant and her recommendations deserve to be given considerable weight.

Conclusion

For reasons outlined earlier this is a matter where I consider that I cannot make a decision about the allocation of parental responsibility until I decide whether it is in [X]’s best interests to live with her mother or her father.
That would be a problem in some cases because s.65DAA of the Family Law Act sets out the consequences which flow from making an order for equal shared parental responsibility and therefore envisages that the allocation of parental responsibility be decided first.
However it is not a problem in this case, because the parents live 4 ½ hours driving distance apart and it is not reasonably practicable for [X] to live in an equal time arrangement or to spend substantial and significant time with each of her parents. This is a case which requires the court to make a choice about which parent [X] should primarily live with, with the corollary that she will then only be able to spend fairly limited time with the other parent.
The mother’s counsel pressed the court to leave [X] where she was. He cautioned against the court being led into making a value judgment that the father could give [X] a better life because he was employed and had an extended family who also all worked while the mother was on Centrelink benefits. It was implicitly his case that this would be to overvalue material considerations and undervalue the love and time the mother could offer [X] and undervalue the importance of her attachment to her sibling [Y].
The mother’s counsel submitted that the court should be careful not to judge the mother’s parenting capacity harshly given the mother’s social disadvantage; the mother was doing her best.
However the evidence in support of a change of residence is overwhelming.
[X] is displaying disturbed behaviour which is impacting on her education and socialisation. Dr G and the school separately recommended in 2013 that she be assessed and engaged in counselling. The mother has been ineffective in ensuring that this occurs regularly and [X]’s problems remain as serious as ever. The incident at the school in April 2014 and the father’s evidence about her behaviour in 2014 amply demonstrates that.
I can be confident that the father will obtain the necessary help for [X]. He understands the extent of the problem, is tenacious in pursuing his desired outcomes and lives close to a hospital and to counsellors who can help [X].
The issues raised about tooth decay and rotting food may be capable of being explained away individually but taken together they cause me to feel a level of disquiet about the mother’s parenting capacity. The fact that the mother has had some mental health issues in the past and that Dr G found her flat and unresponsive, that it was difficult to get a real picture of her and that there was no clear evidence about the current state of her mental health also causes me a level of disquiet. If a choice has to be made about whether to leave a child with disturbing behaviour with a parent with these disquieting issues or a parent with no such disquieting issues the choice is obvious.
Another relevant matter is that the mother dislikes and distrusts the father and has made false allegations of sexual and physical abuse against him. There is a considerable risk that if [X] remains with the mother her relationship with the father may either be undermined or be interrupted while allegations are investigated.
The father has never had the full time care of [X] or indeed any child, but [X] has spent regular time at his home including school holiday time over the last two years and he has had first-hand experience of her difficult behaviours so to some extent knows what he is getting into. He and his wife have given thought to issues such as how [X] can be dropped off at and picked up from school.
[X] has a good relationship with the father. Dr G said that it was by no means certain that she would be unduly distressed at a change of residence (absent missing [Y]) but I am satisfied that the father will do his utmost with the help of his family to help her adjust. I am also satisfied that he values her relationship with [Y] and will ensure that it continues.
Finally I am satisfied that the father accepts [X]’s aboriginality and the fact that her mother is aboriginal and the father is not is not sufficient reason to leave her with the mother when all the other best interest considerations suggest that she should live with the father.
I intend to order that [X] lives with the father and that he has sole parental responsibility for decisions concerning her health and education. Apart from this the parents will have equal shared parental responsibility.
Dr G recommended that the change of residence take place forthwith rather than waiting until the end of the year. It would mean that [X] would not be able to see out the end of the school year with her classmates but Dr G felt that this could be catered for by the father making a special visit to [Q] with [X] for that purpose.
This is sound common sense and I intend to follow this recommendation. [X] needs help now, not in six weeks’ time. She may find it a little challenging starting at new school so close to the end of the school term but she may also find herself the centre of attention as the new child at school and thrive in the change,
The other benefit of the change happening immediately is that it avoids the risk of the mother coming up with further allegations in the intervening period, the investigation of which could (but of course not necessarily would) delay the change of residence and delay [X] starting to receive the help she so badly needs.
I intend to make orders about [X]’s time with mother consistent with the recommendations by Dr G. They are slightly more restrictive in the immediate future than those proposed by the Independent Children’s Lawyer but in my view they give [X] a better opportunity to settle into the father’s care.
The mother’s counsel asked the court, if it made orders that [X] live with the father, to order that in the event that the mother moved to a place within 50 kilometres of the father’s residence [X] spend substantial and significant time with her.
The benefit of this to [X] would be that she would be able to see [Y] frequently and have frequent time with her mother with whom she has always lived. Making orders about it now would remove one possible cause of further litigation, and that no doubt for this reason that the Independent Children’s Lawyer supported this proposal by the mother’s counsel.
Dr G was asked about this and her response was that she considered it unlikely that the mother would actually move to Sydney. The mother has lived in [N] for seven years and the mother has lived in the same rental accommodation in [Q] for five years.
The mother has still not obtained a drivers licence or commenced university studies despite years of effort and it is easy to understand

Dr G’s scepticism, and I am reluctant to make orders about the [X]’s time with the mother in Sydney when the mother may not move for a year or two or even further into the future.
A greater concern is that the genesis of [X]’s problems is unclear at present. Once this becomes clear it will inform a decision about the amount of time which is appropriate for her to spend with her mother if and when the mother moves to Sydney.
I am loathe to condemn the parties to further litigation but I do not consider that it would be in [X]’s best interests for me to make orders that she spend substantial and significant time with the mother upon the mother moving to Sydney.
For all of the above reasons the orders of the court shall be as set out at the beginning of this judgment.

I certify that the preceding four hundred and fifty (450) paragraphs are a true copy of the reasons for judgment of Judge Terry

Associate:

Date: 14 November 2014

[2014] FCCA 2556

14 November 2014

Key Legal Topics

Areas of Law

Family Law