Brar and Kambo & Anor

FAMILY COURT OF AUSTRALIA

BRAR & KAMBO AND ANOR

[2020] FamCA 719

FAMILY LAW – PARENTING – Where the child is almost nine – Where the mother is deceased – Where the child lives with the father and spends time with the maternal family – Where the maternal family is unwilling and unable to support the child’s relationship with the father – Where the maternal family withholds the child from the father – Where the child is distressed by changeover – Where the maternal family has not complied with Court orders - Where the child has an attachment to the maternal family – Orders for the child to live with the father – Orders for the father to have sole parental responsibility – Orders for time with the maternal family.

Family Law Act 1975 (Cth) s 60CC

McCall & Clarke (2009) FLC 93-405
Moose & Moose (2008) FLC 93-375

APPLICANT:

Mr Brar

1st RESPONDENT:

Ms Kambo

2nd RESPONDENT:

Mr Shah

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

1685

2017

DATE DELIVERED:

31 August 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

1, 2, 3, 6 & 7 May 2019, 15 October 2019,

17, 18 & 19 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Apelbaum

SOLICITOR FOR THE APPLICANT:

Davityan Lawyers

COUNSEL FOR THE RESPONDENTS:

Mr Cairns (1-7 May 2019)

SOLICITOR FOR THE RESPONDENTS:

Kailash Lawyers & Consultants (1-7 May 2019)

In person (15 October 2019, 17-19 August 2020)

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Lawrence (1-7 May 2019, 15 October 2019)

Mr Blackman (17-19 August 2020)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

IT IS ORDERED

That the father have sole parental responsibility for the child X born … 2011.
That the child live with the father.
That the child spend time with the first and second respondents as agreed or, in the absence of agreement, commencing on 5 September 2020 on the first Saturday of each month, and on Mother’s Day, between 12 pm and 6 pm.
That changeovers for the purpose of Order 3 are to occur outside Coles at Suburb E Shopping Centre unless otherwise agreed.
That the father facilitate the child making telephone or video calls to the respondents if she wishes to do so.
That the first and second respondents are restrained from attending at the school which the child attends except for attending any function at the school to which members of the family and the public are invited.
That the father authorise the child’s school to provide to the respondents copies of the child’s school reports and any other information usually provided to parents such as newsletters, circulars and applications for school photographs.
That the father authorise Ms B to provide to the respondents any information about the child’s well-being that they may request of her.
That the respondents are restrained from taking the child to any medical practitioner without the express consent of the father other than in the case of an emergency when they are permitted to call an ambulance for the child.
That the respondents are restrained from allowing the child access to any social media platform including but not limited to TikTok, Facebook, Snapchat, Instagram and WhatsApp without the express consent of the father.
That the parties have liberty to relist this matter before Justice Rees in the event that the child is not returned to the father at the end of a contact period.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1685 of 2017

Mr Brar

Applicant

And

Ms Kambo

First Respondent

And

Mr Shah
Second Respondent

REASONS FOR JUDGMENT

Mr Brar (“the father”) is the father of the child X who was born on … 2011 and is now aged nearly nine years.
The child’s mother, Ms F Kambo, died on … 2017. The parents were separated at the time of the mother’s death and the child was living with her mother.
Ms Kambo who is the child’s maternal grandmother and is the first respondent in these proceedings, had come to Australia from her home in Country G to care for the mother and for the child during the mother’s illness and remained after the mother died.
Mr Shah, who is the mother’s brother and the second respondent in these proceedings, came to Australia in February 2016 and has lived in the same house as the maternal grandmother since that time. From time to time, other members of the maternal family have lived with the grandmother and Mr Shah, most recently, the youngest brother.
After the mother’s death, the child continued to live in the mother’s home with the maternal grandmother. They later moved to other accommodation.
The proceedings before the Court were instituted by the father on 16 March 2017, seeking an order that the child live with him and that he have sole parental responsibility for her.
The first respondent sought orders that the child live with her, that the father have supervised time with her and that she be permitted to travel with her to Country G. At all times the positions of the first and second respondents have been the same. Their applications have been prosecuted jointly.
On 27 March 2017, orders were made by consent for the father to spend time with the child, supervised by H Contact Centre, a professional supervision organisation. The subsequent reports of the supervisors were entirely positive about the father’s parenting and the relationship between him and the child.
The respondents allege that the child made a series of complaints to them after the supervised visits about the father’s behaviour. The most serious complaint was that in mid-2017, the father had held the child’s head under water at the beach or in the bath. The respondents were adamant that the child was telling the truth even after it was pointed out to them that, at the time, the visit was being supervised by H Contact Centre.
The Family Consultant asked the child about that incident. She reported:
The child said confidently, “it was not in the bath, on Sunday or Saturday he took me to the beach when he put me in the water, then he sat on me.
There were further complaints that the father had left the child in a car unattended while he inspected a possible rental unit (that complaint was not substantiated by the renting agent); that the father didn’t feed the child properly; that the father didn’t love the child; that she was poorly groomed; that she was frightened of her father; that he didn’t play with her; that he didn’t celebrate her birthday; that the father lived with another woman and her two children.
Numerous complaints were made to child welfare authorities and to the police.
The respondents remained adamant that the child’s complaints about her father were literally truthful.
On 4 September 2017, the second respondent was joined as a party to the proceedings and orders were made by consent which provided for the child to spend unsupervised time with her father.
There followed a series of complaints by the father that the respondents cancelled visits with the child or were significantly late in delivering her.
At the instigation of the respondents, the child was taken to the police station and formally interviewed in relation to her complaints about her father. The video record of the interview with the police was tendered.
On 5 February 2018, orders were made which provided for the father’s time with the child to be made up if a visit were missed.
On 22 June 2018, the father’s parents arrived in Australia from Country G to help the father care for the child. They were granted multiple entry visas for three years.
On 25 June 2018, orders were made by consent that provided for the father and the first and second respondents to have equal shared parental responsibility for the child; for the child to spend time with the father each week from Friday after school until Saturday evening and in the school holidays.
The respondents continued to cancel visits.
On 15 October 2018, further consent orders were made. The father’s time with the child was extended to Friday afternoon until Monday morning in the first of each two week cycle and Wednesday after school until Friday morning in the second week. The child was to spend half of all school holidays with her father.
On the days when the father was to collect the child from school, the maternal grandmother went to the school early so she was there when the child met her father, putting the child as the Family Consultant said in oral evidence, in an impossible position.
In March 2019 the respondents took the child to the J Family Practice. The child’s general practitioner had always been Dr C. At the J Family Practice, the child was seen by Dr K or Dr L. The father was not aware that the child was no longer seeing Dr C.
Between 5 March 2019 and 28 March 2019, the child was taken to see either Dr K or Dr L on ten occasions. On six of those occasions medical certificates were issued. Some of those days were days when the child should have been collected from school by her father.
In addition to the visits to the J Family Practice, the child was taken to D Hospital by the second respondent on 7 March 2019.
Both Dr K and Dr L became involved in reporting to child welfare authorities, contacting the school and generally supporting the respondents in their attempts to withhold the child from her father. The notes of the child’s second visit to Dr K include reference to a discussion between the doctor and the respondents’ then lawyer. On a number of occasions, there does not appear to be any presenting medical issue and the notes record complaints about the father. It is difficult to come to any conclusion other than that the child was being subjected to evidence gathering in relation to the hearing commencing in May 2019.
On 8 March 2019, the respondents stopped the child’s time with her father. They also stopped taking her to see Ms B, the psychologist who had been seeing the child since well before her mother’s death and they stopped taking her to her usual general practitioner.
Changing the child’s treating doctor was a significant step because the child has health problems and has been fitted with a pacemaker. They sought from J Family Practice a referral to a new psychologist. All this was done without reference to the father, who had equal shared parental responsibility for the child. Neither the general practitioner nor the new counsellor was made aware of the child’s long standing and close therapeutic relationship with Ms B.
In April 2019, the child was taken to the J Family Practice on three successive days and issued with a medical certificate for a further day.
In addition, in April 2019, J Family Practice made a referral to a counsellor, Ms M who saw the child on 16 April and 23 April and prepared a report dated 29 April 2019. Again it is difficult to interpret the involvement of Ms M as other than an evidence gathering exercise.
Ms M took instructions from the grandmother and the second respondent. There is no indication in Ms M’s report that an interpreter was used. Because the first respondent does not speak English and the second respondent’s English is limited, there must be some questions about what information she was actually given and by whom. There is no reference in Ms M’s report to the child’s long term therapeutic relationship with Ms B and it is assumed that she was not told about it.
In sessions with Ms M, the child consistently repeated her allegations of mistreatment by her father and told Ms M she did not want to live with him. She also told Ms M that her father had hit her but was unable to say when or give details.
In addition to seeing Ms M on two occasions, the child was taken to see another counsellor, Ms N at P Social Services on two or three occasions.
The records produced by the child’s school portray a child in significant distress in the first term of 2019. The child was absent from school for either a part or the whole of the day on 19 days on the first term of 2019.
On 21 March 2019 there was a serious incident at the child’s school where the police and the Department of Family and Community Services (as it then was) were called. It was a day when the father was to collect the child from school pursuant to the orders. The father contacted the school, explaining that he would collect the child and asking that she not be allowed to leave with her grandmother.
There is a dispute as to what then occurred. I prefer the version recorded by the school to the version given by the maternal grandmother. The school notes are contemporaneous; kept as part of the school’s reporting obligations and objective.
The notes record that the grandmother arrived at the school at noon and was seen sitting in the playground. A teacher asked the grandmother why she was there and was told that the child had a medical appointment at 1 pm. The teacher noted that the child had been absent from school the day before and had been given a medical certificate. The teacher rang the doctor who told her that she should not let the child go with her father. The doctor said that the child had an appointment with him at 2 pm. The teacher suggested that medical appointments should be made after school hours. The grandmother was asked to wait outside the school grounds. Anticipating trouble, the school called the police.
The father arrived to collect the child. The child was not aware that her father was at the school.
The police informed the grandmother that the orders of the court required the child to go with her father. They then spoke to the child who had been kept away in another room with a teacher. The child became distressed. The notes record:
The child’s Grandma came running in calling the child’s name and flung herself on to her. [A staff member] came in and I asked her to get the police. The police came in. They were sitting on the chairs outside my office (Grandma and the child on her lap) and then Grandma’s body and head went backwards and then on to the chairs. I pulled the child out from under Grandma as she was saying ‘ow’ (ouch) as her leg was stuck under Grandma. Grandma was then rolling around on the floor. The police were there and [a staff member]. Grandma was crying out.
I took the child in to my office and she was very upset. She was screaming.
The notes record that the child was able to be comforted after she was told that her grandmother was not going to die. The child and the father spoke in the presence of the police. The child was told by the police that if she did not want to go with her father, then her father had agreed that he would leave. The father left after the child said she did not want to go with him. The notes record:
We took the child to Grandma who was in my office. The child went over to Grandma who was… on her mobile phone. The police officer asked Grandma if she was going to say something to the child. She didn’t. I reiterated what the police officer said, she still did not acknowledge the child.
The notes record that before the child returned to the room, the grandmother told the reporter and the police that the child did not want to go to her father:
… she then proceeded to pull up a video on her phone and tried to show the video to myself and the police officer of the child holding a piece of clothing (possibly her uniform) and trying to cover her private parts whilst being recorded. In the video the child was crying and saying something but I could not understand it as I did not want to see the video and asked Grandma to put it away. The police officer also said he didn’t want to see it and turned away like I did.
The child did not come to school the next day. On the following Monday the child came to school late and the grandmother was asked to leave “as she kept hanging around”. The grandmother said she would return for the child at 2.30pm and was told that she could not take the child before 3 pm. The school made a report to the child welfare authority.
On Monday afternoon the grandmother took the child to Dr K and showed the doctor a video of the child crying and saying she wanted to die. Dr K contacted the school on Tuesday. The school suggested that the child’s distress could be assisted if her grandmother told her each morning who would be collecting her and Dr K said she would pass that suggestion on to the grandmother.
She attended on Tuesday but was absent Wednesday and Friday.
On Thursday, the school recorded that the child was upset and did not know who was picking her up that afternoon. The child said that she was worried about going to her father. She said he “doesn’t take care of me & I am worried he is going to give me a chemical. He wants Grandma and Uncle to go back to Country G & me to die”.
Thereafter the respondents withheld the child from the father, making sure she was not at school when he arrived to collect her pursuant to the orders.
The parenting proceedings were listed for hearing for 5 days commencing on 1 May 2019.
An Independent Children’s Lawyer (“ICL”) appeared for the child.
On 3 May 2019, an order was made restraining the respondents from taking the child to any psychologist, social worker, psychiatrist or therapist without the leave of the court. This was the first time that the father became aware of the involvement of the J Family Practice or Ms M.
On 4 May 2019, after all lay witnesses had been cross-examined, the Family Consultant was cross-examined.

EVIDENCE OF THE FAMILY CONSULTANT

The Family Consultant conducted interviews in April 2018. At that time, the child was aged six years and her mother had died a little over a year ago. The child was spending time with her father unsupervised but not overnight.
Of her interview with the grandmother, the Family Consultant stated:
[The grandmother] said that the child tells her that she does not want to see her father, but that she tells the child that she must go on visits because there is a Court Order. She said that the situation with fathers after parental separation in Country G is completely different to that in Australia. She said that, in Country G, there are not normally any arrangements for children to see their fathers and that she feels uncomfortable having to facilitate the Orders for the child to see [the father]…
When asked directly if she could see any benefit for the child of seeing her father, [the grandmother] said that she could not. She reasoned that the child feels sick after Sunday visits with her father, which causes the maternal family to take the child to see the doctor. She said “if she visits her father, she’s supposed to be happy, but she gets sick”. To further questioning, [the grandmother] said that she can see no benefit to the child of spending overnight time with her father, particularly as she has never stayed overnight with him since her birth. When it was noted that the child’s parents did not separate until the child was four years old, [the grandmother] acknowledged that it would have been more correct to say that the child had never stayed overnight with her father since the parent’s separation. [The grandmother] said that the Court might consider the child spending time with her father once the child “felt more safe”. She said that the child is not safe in her father’s care. [The grandmother] said that the child’s counsellor also wants to speak to the lawyers because the child has reportedly told her many negative things about her father. If the Court allows [the father] to be with the child, [the grandmother] said that she wants a kind of guarantee from the government that the child will be safe.

The Family Consultant did not report any positive comments by the grandmother about the father. Her narrative was relentlessly negative.
The second respondent was also interviewed and was similarly negative about the father and his criticisms were similar to those of the grandmother. The Family Consultant reported:
[The second respondent] was asked about whether he communicates with [the father] about the child’s medical appointments, for example the child’s recent appointment with her cardiologist. He said that he has not communicated with [the father] about these things because [the father] has never taken responsibility for the child’s health, despite his knowing that she has regular medical appointments.
[The second respondent] alleged that [the father] is motivated in pursuing Orders for the child to live with him because he is interested in the property settlement. He said “he…appeals in Court that it’s the child’s property, but he wants it. He never pays for anything for the house but he receives rent, the child should get it”.
The Family Consultant spoke to the child. She reported:
The child initially hid behind a column in the waiting room upon seeing her father on the other side of the room. However, when she walked past him with the Family Consultant, [the father] held his arms out wide to the child and she readily gave him a big hug. The child told the Family Consultant that she knew why she was at the Court, saying “it’s very hard to make a decision”, however, she seemed excited and eager to express herself. The child asked why the Court “takes so long” to make a decision.
The child was asked whether she had stayed overnight at her father’s house. She said “the judge thinks the next step is overnight, everyone’s been telling me that, my family, my friends, my Dad keeps telling me.” the child mentioned a number of other people, however the Family Consultant is unclear who she was referring to. She made some other references to sleeping over at her father’s home when she is six and a half years old, referring to this occurring when her room is decorated. The child said matter-of-factly “but by then I’ll be living with him”, saying that her father had told her this is the case. The child admitted that this will make her feel sad because she would miss her maternal grandmother and her uncles. Later in the interview, the Family Consultant asked the child how she felt about living with her father (as it seemed that she expects this to be the case), and the child said “I don’t know. I don’t feel like anything”.
The Family Consultant observed the child with her father. She reported:
When observed after lunch with her father, the child seemed confident and playful. She delighted in the games she and her father played, which seemed familiar. [The father] was directed by the child to play roles in the imaginative games she chose. The child seemed more interested in role playing and interactive games and less interested in playing with toys. There was a sense that [the father] was very aware of being observed, however, this is not unusual for parents during formal observation sessions. The child seemed very happy with her father’s attention focussed on her. She leaned on to him at one point when she looked at his phone and he put his arms around her. [The father] asked the child for a kiss and a “cuddly” (cuddle) several times and the child happily complied. The child’s and [the father’s] interaction was warm, gentle and reciprocal.
The Family Consultant spoke to Ms B and reported:
In conversation with the child’s counsellor, it appears that the child is progressing well in her grief. [Ms B] said that, while the child spoke about her father being angry and abusive to her mother in the early stages of the counselling, she has now developed pleasurable memories of her father from spending time with him. [Ms B] said that, while they continue to look for areas to make complaints about [the father], the maternal family have come to understand that the Court system recognises the child’s right to have a relationship with her father. [Ms B] agrees that the next step for the child is for her to spend overnight time with her father on weekends. She said that the greatest challenge moving forward is for the maternal and paternal families to get on better for the child’s sake.
The Family Consultant stated in her report that the therapeutic relationship between the child and Ms B was important to the child.
Analysing the complaints made by the child to the maternal family, the Family Consultant stated:
The child’s reported comments to her maternal grandmother about her father pushing her head under the water in the bath are concerning. [The father] questions whether [the grandmother] is being truthful when she makes these allegations. [The grandmother] said that the child repeated these claims to a doctor at the hospital and to her counsellor. The Family Consultant is unclear whether this is the case, or whether the telling has been by the maternal family rather than the child herself. It is at odds with the child’s statement to the Family Consultant, to whom the child spoke about her father putting her in the water at the beach. The child herself seemed very suggestible in interview and jumped from one topic to another, she being only six years old and unable to understand the importance of what she was saying. It is difficult to be certain about what, if anything, has occurred but it seems that there is a possibility that the child has mixed up events or at least been suggestible when recounting events, which have led to the making of [the grandmother’s] allegations. The Family Consultant also notes [the grandmother’s] comments about the child’s seeming lack of fear in relation to her father on the day of the Family Report interviews, such that the child was confident when the maternal family reassured the child about the helpfulness of Court personnel. While it is possible that the child tells her maternal grandmother that she is scared to spend time with her father, while also enjoying herself very much when she does see him, it is difficult to know what to make of this conflicting information. It may be that the child has been frightened of her father at times, and that she recalls times when he yelled at, and hurt, her mother. It may also be that the child is on some level aware of the maternal family’s feelings about [the father] and their wish to hold the child close to them. Nevertheless, it was certainly possible to observe the child’s delight in spending time with her father on the day of interviews. The next phase in a graduated parenting arrangement would generally be for the child to spend overnight time with her father.
The Family Consultant stated:
It is very concerning that the child’s maternal grandmother does not appear to see any value to the child of her having a relationship with her father. In these circumstances it can be difficult to maintain parenting arrangements without Court Orders. There is also very little communication between the father and the maternal family. While [the father] appears to appreciate the role of the maternal family in the child’s life given the death of her mother, he also holds strong feelings of bitterness and resentment towards them. In addition to these negative feelings, both families continue to grieve for [the mother]. The uncertainty about the finalisation of [the mother’s] estate and the property settlement are an added aggravation. These factors do not create optimum conditions for a sharing of parental responsibility for the child between the two families.
In relation to the option of the child remaining in the primary care of the maternal family, the Family Consultant stated:
The most considerable risk to this option is to what extent the maternal family is able to assist the child to maintain a relationship with her father as the child’s sole surviving parent. This is extremely critical because the child’s mother is dead and, without [the father’s] presence in her life, the child may experience additional challenges in her grief, and in her future intimate relationships.
The Family Consultant regarded the father’s approach to a graduated transition of the child’s care to him to be child focused. She recommended:
A cautious approach that re-evaluates the child’s progress once she has been regularly spending time with her father overnight is recommended, before long term decisions are made.
Ultimately, the Family Consultant recommended the immediate commencement of overnight time with the father and that the child spend increasing periods in her father’s care.
In cross-examination, the Family Consultant said that she had again spoken to Ms B who had last seen the child in March 2019. Ms B told the Family Consultant that she had no concerns about the father’s parenting and that the child had not expressed any concerns to her about her father. Ms B told the Family Consultant that she considered that the main problem for the child was the animosity from the maternal grandmother towards the father. Ms B said that both she and the child’s school counsellor were very concerned about the pressure on the child from the maternal grandmother. The child has told her school counsellor that her grandmother told her that she will have to go back to Country G if the child lives with her father and she will never see the child again.
The Family Consultant said that the disruption of the child’s positive relationship with Ms B was harmful to the child.
The Family Consultant expressed her concerns about what she saw as the escalation of the complaints made by the maternal family about the father. She said that the child is quite aware of how her maternal family view her father and that it is likely that she is being influenced or encouraged to make complaints about him.
The Family Consultant said that dynamic would make the child’s time with her father very significantly stressful. She said that the incident on 21 March 2019, which would have been extremely stressful for the child, at the school demonstrated that either the grandmother had little insight into the child’s position or that her own needs overtook her insight.
The Family Consultant said that, if the child continues to spend time with the maternal family, there will be further allegations made by the child to them about her father.
The Family Consultant said that the maternal grandmother’s view of the father is entirely negative. She does not believe that he loves the child or that the child loves him.
However, she said that the best outcome for the child was to have a relationship with both families. She considered that disruption of the child’s relationship with her father was her most serious concern, If, she said, it were likely that the maternal grandmother was not capable of supporting her relationship with her father, the Court should consider placing the child in the care of her father.
The Family Consultant said that, if the child lived with her father, the time that she spent with the maternal family would depend on their capacity to support the child going between the two households. She suggested the time should not be weekly unless the maternal family demonstrated that they could support the relationship between the child and her father. Initially, she suggested, time with the maternal family should be fortnightly but the grandmother should not go to the school. She suggested that the maternal family be given a period of six months to demonstrate their ability to understand the importance of the child’s relationship with her father and their ability to support it.
The Family Consultant said that the maternal family believed what the child tells them and that it is impossible to suggest otherwise to them. She expressed her concern that the maternal family had made no attempts in the past year to verify what the child was telling them and that the maternal family had no trust in the father. The grandmother told the Family Consultant that the father did not love the child and was motivated solely by financial gain.
The Family Consultant said that the child’s complaints about her father were likely to be prompted by the maternal family but she was not able to say whether from training or conditioning. She said that it was very, very concerning if the child believed that what she was saying was true but that it would not be uncommon if the child was saying what her grandmother and uncle wanted to hear.
In relation to the child’s complaints to Ms M about her father, the Family Consultant said that:
When a child sees a new counsellor, a new psychologist, and she starts talking about these things that her father has done, these negative things, the telling of it to the psychologist can make it more alive in the child’s mind, just by the telling of it, and the responses that the counsellor would give, which you would presume would be fairly empathic and of some - trying to be of some comfort, but the impact on the child would be it further imprints these alleged events that took place with her father in the child’s mind. So it might have actually caused more damage to the child, because after seeing the counsellor she more firmly believes it then when she set foot in there.
She also expressed her concern about the unwillingness of the maternal family to comply with orders of the Court and suggested that it was imperative for the Court to act quickly to ensure that the child’s relationship with her father was not further damaged or even lost.
On the last day of the hearing, the parties reached agreement about interim arrangements for the child.
They agreed that the child should live with her father and spend time with the respondents. Orders were made on 7 May 2019 in the following terms:
…
“INTERIM ORDERS BY CONSENT:
1.The father shall have sole parental responsibility for the child X, born … 2011 (“the child”).
2A. Commencing on 14 May 2019 the child shall live with the father.
2B. For the purposes of Order 2 hereof, the parties shall attend with the child upon Ms B at a time to be nominated by her on 14 May 2019. The First and Second Respondents shall leave the vicinity immediately upon delivering the child or as directed by Ms B.
2C. Pending orders 2 and 3 hereof, all parties are restrained by injunction from discussing with the child or in the presence or hearing of the child, these orders or the child’s future living arrangements.
2D. The Respondents shall notify the father and Independent Children’s Lawyer within 24 hours of any change to their visa status and shall provide copies thereof.
2EThe father shall not drink alcohol to excess whilst the child is in his care or 12 hours before coming into his care.
2F.        The father shall not smoke cigarettes in the presence of the child.
2G. The child shall spend the following time with the First Respondent and Second Respondent as agreed and failing agreement:
2G.1         During the school term:
2G.1.1Commencing 24 May 2019 each alternate weekend thereafter from after school or 3:00pm Friday to before school or 4:00pm Sunday; and
2G.1.2Commencing 30 May 2019 on the alternate week from after school or 3:00pm Thursday to before school or 9:00am Friday.
2G.2During the Term 2, and 3 school holiday periods, one week with changeovers at 12 noon on the first Friday in school holiday with changeover at 12 noon on Friday the following week.
2G.3The child shall spend Father’s Day with the Father from 3:00pm Saturday until before school on Monday, and the First and Second Respondent’s time shall be suspended in the event that Father’s Day falls on the weekend that the child was otherwise to spend with the First Respondent and Second Respondent.
2G.4By telephone each Tuesday from 5pm to 5:30pm with the First and Second respondents to telephone the father on his mobile telephone and the father to make the child available to speak privately with the First and Second respondents.
3.Subject to order 4 thereof, the First Respondent and Second Respondent are restrained by injunction from attending or approaching the school premises unless to collect or drop the child off at school on the days that the child is in their care.
4.The First Respondent and Second Respondent shall attend school events such as Parent/Teacher nights and school concerts.
5.The Father shall authorise the school attended by the child from time to time to release to the First Respondent and Second Respondent all information sought by them relating to the child’s welfare and progress at school, details of upcoming functions or activities and any other information provided by the school to parents of a child attending the school.
6.The Father shall authorise all treating medical and psychological practitioners of the child to:
6.1provide information and records regarding the child to the First Respondent and Second Respondent upon request; and
6.2liaise with First Respondent and Second Respondent upon request.
7.           The parties shall:
7.1notify the other as soon as possible and in any event within 24 hours of any serious injury or illness suffered by the child whilst in the care of that party;
7.2notify the other party not less than 14 days before changing that party’s residential address; and
7.3notify the other party not less than 7 days before changing telephone number and each party shall keep the other informed of their respective telephone numbers and emergency contact telephone numbers.
8.    All parties are restrained from taking the child to any psychologist, counsellor or social worker other than Ms B or as directed by Ms B.
9.    All parties shall ensure the child has consultations with Ms B every week for the first 4 weeks after these Court Orders or as otherwise directed by Ms B and thereafter as directed by Ms B.
10.    This order is authorisation for all Parties to liaise with Ms B in relation to the child’s counselling.
11.         For the purposes of changeover unless otherwise agreed:
11. 1The First and Second Respondents shall collect the child from school at the commencement of time if it is a day the child is attending school;
11.2The First and Second Respondents shall otherwise collect the child from Suburb E Shopping Centre in front of Coles at the commencement of time if it is a day the child is not attending school; and
11.3The First and Second Respondents shall deliver the child to Suburb E Shopping Centre in front of Coles at the conclusion of time.
12.The parties each be restrained by injunction from making critical or derogatory remarks about the other party or the other party’s family in the presence or within the hearing of the child and the parties shall immediately remove the child from any situation where any other person is making critical or derogatory remarks about the other party or the other party’s family.
13.The father is permitted to attend all school events that parents would ordinarily attend regardless of whether the child is spending time with the Respondents pursuant to these orders.
14.Except in cases of emergency, that all parties are restrained by injunction from taking the child to general practitioner other than Dr C or if Dr C is not available Suburb E Medical Centre or as directed by Dr C.
15.That until further order each party, Mr Brar, Ms Kambo and Mr Shah, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said child the child born … 2011 from the Commonwealth of Australia;
16.And it is requested that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watchlist for the said period, or until the Court orders its removal.
17.Each party is restrained from causing or permitting the infliction of corporal punishment upon the child.
18.If not already completed the father and the First and Second Respondents are required to complete the “Triple P” parenting program and “Parenting After Separation” within six months of the date of these orders to assist them to develop effective parenting techniques for the child and to assist the child to navigate her changed living arrangements.
19.That pursuant to Section 65DA(2) and 62(B),of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.”
(As per the original)

The matter was stood over for two further days commencing on 15 October 2019.
At the resumption of the hearing, the father sought orders substantially reducing the time the child spent with the respondents to one day each month during school terms; one week in the short school holidays and two weeks in the longer summer holidays.
The respondents, who were no longer represented, did not file any document setting out the orders they sought. With the assistance of an interpreter, it appeared that they sought an adjournment for the purpose of obtaining legal representation.
The adjournment was ultimately granted and (relevantly) the following orders were made:
IT IS ORDERED
1.   That the respondents are restrained by injunction from taking the child the child (“the child”) born … 2011 to any medical practitioner or health provider except Ms B.
2.   That in the case of an emergency the respondents are permitted to call an ambulance or take the child to the emergency department of a hospital in which case they must notify the father immediately and the Independent Children’s Lawyer within 24 hours in writing.
3.   That if the child needs to see any medical practitioner or health provider other than Ms B or in the case of an emergency, while she is in the care of the respondents, the respondents shall return the child to her father immediately.
...
IT IS NOTED
10.That these Orders have been interpreted to each of the respondents by an interpreter today in Court as they were made.
(As per the original)
The matter was unable to proceed on 20 April 2020 because of the COVID-19 pandemic and was administratively adjourned. When the hearing resumed on 17 August 2020, the respondents were still unrepresented.
The father relied on two further affidavits sworn by him on 23 March 2020 and 30 July 2020.
The respondents told the Court that they had not received the affidavit of the father sworn 30 July 2020. For more abundant caution, the Court adjourned so that the affidavit could be read to them by the interpreter. However, counsel for the father tendered copies of emails forwarding the affidavit to the respondents and I am satisfied that the affidavit had been served in a timely way.
The respondent’s relied on an affidavit by the second respondent sworn on 4 August 2020 and an affidavit of the grandmother sworn 31 March 2020.
On the first day of the resumed hearing, counsel for the ICL indicated that he intended to call Ms B, who has been the child’s counsellor since 2017, to give evidence. Counsel for the ICL indicated that it was intended that Ms B would give oral evidence. There was no suggestion that Ms B had ever been asked to prepare a report or swear an affidavit and her files and notes had not been the subject of a subpoena.
I directed that the ICL provide a proof of Ms B’s evidence and was told that the proof would be available during the morning. Ultimately, the proof of evidence was provided on the second morning of the resumed hearing and it was necessary for the commencement of the proceedings to be delayed for an hour while the document was interpreted to the respondents.
When the proof was provided, an application was made by counsel for the ICL that her notes, which had been brought to Court, not be the subject of inspection by any party, other than the ICL. Ms B was concerned that, if the father and the respondents read the notes, the child’s private communications with her would be revealed to the detriment of their therapeutic relationship.
Counsel for the father did not seek to inspect the notes.
The respondents wished to read the notes. The second respondent said that he needed to read the notes so that he could see if Ms B was telling the truth.
The child has been seeing Ms B, who was originally instructed by her mother to assist the child, since 2017, throughout her mother’s illness and after her death. The therapeutic relationship has continued with an interruption in 2019 when the respondents stopped taking the child to Ms B. The Family Consultant gave evidence that the relationship with Ms B is very important to the child’s psychological health. I accept that evidence.
Ms B is uniquely placed to assess whether the production of her notes might cause a breach in her therapeutic relationship with the child. Further, counsel for the ICL told the Court that he had read the notes and that they contained nothing of importance that had not been addressed in the proof of evidence.
I did not accept that it was likely that the notes would demonstrate that Ms B had lied in the proof of evidence.
Accordingly, I did not require the notes to be produced for inspection.
The respective positions of the parties when the hearing resumed in August had changed.
The father sought orders that the child live with him and spend time with the respondents “as agreed between the parties”. He sought a continuation of the order that he have sole parental responsibility.
The respondents sought equal shared parental responsibility and an equal shared time arrangement with the child.
The ICL sought orders which differed from those of the father only in that the ICL proposed limited, monthly time between the child and the respondents in accordance with the recommendations of Ms B.

EVENTS SINCE MAY 2019

The child was reviewed by her cardiologist in late October 2019. In his report dated 23 October 2019, Dr Q concluded:
I feel… that the child is doing very nicely. I would be happy for her to be treated normally from the cardiac point of view. I do not have any objection to her participating in gymnastics and have simply recommended follow up in two years.
The father deposed that he has completed the Triple P Parenting Program and the Parenting After Separation Course and that he has undergone Carbohydrate-deficient transferrin testing at the request of the ICL returning a result in the normal range.
The child’s school attendance has been regular when she was in her father’s care. In the last semester of 2019 she was absent from school for one day. In the first semester of 2020 she had no absences. In the second semester of 2020 she was absent for three days.
The child has been seeing Ms B monthly.
The documents produced by Dr C record that the father has regularly taken the child to Dr C. On 10 October 2019, the grandmother took the child to Dr C, contrary to the orders made on 3 May 2019 and 7 May 2019.
On 8 June 2019, the child was taken to D Hospital by, it would seem, the second respondent. She was reported to be constipated and vomiting. The respondents had first tried to contact Dr K, without success. The child was not returned to her father as the orders required. The hospital records note that the child is currently living with her uncle and grandmother and that they and the father had joint custody. That information was incorrect and misleading as to the respondents having the required authority to seek medical treatment for the child. The notes record:
Father… presented to ED at approximately 1245 just after [discharge] of the child, asking for an update re: daughters [sic] care. Reassured the child is well, nil concerning features in her history or examination and that she has likely suffered a viral gastro bug and was well when discharged in from hospital to the care of her uncle.
On 22 April 2020 the child was taken to Dr K by the grandmother’s youngest son. Dr K gave the child a flu injection. The second respondent, when challenged about this disregard for court orders was indignant. The father was not consulted before the injection was given. The father has sole parental responsibility for the child. No one else can authorise medical treatment for her. The orders specifically restrain the respondents from taking the child to any doctor. The second respondent had no appreciation of the fact that this was a serious breach of orders.
On 26 July 2020, the child was retained by the respondents and not returned to her father. Whilst the versions of the attempted changeover differ between the father and the respondents, what emerges is that the child was taken to the designated changeover place at Suburb E but refused to go with her father. Both the grandmother and the child’s uncle were at the changeover. The father deposed that, throughout his attempts to persuade the child to leave with him, the respondents remained silent and made no attempt to encourage the child to go with her father. That evidence is not disputed. The police were called and spoke to the child. Ultimately, the father left because the child was distressed and the child remained in the care of the respondents.
The father sent a text to the second respondent asking him to collect the child’s medications if she was not to be returned to his care.
On the following day, Monday, the child did not go to school. The records produced by the school note:
The child’s uncle… called this morning from the front gate telling me that he can not get the child in to school as she is scared to go home with her father today. He kept trying to tell me about police and court and not to let her father pick her up…
The father’s solicitors sent an email to the respondents asking that the child be returned to her father.
The second respondent replied:
I respect court orders and respect your recommendation to hand over [the child] to her father. Unfortunately, I am not able to do so as [the child] is quite upset and stressed at this stage. I was also surprised by her action yesterday that why she refused to go with her father as we are all trying to make her bond with him and she was coping with that.
The second respondent offered to arrange a meeting with P Social Services “so that he can talk to her and convince her for handover”.
The ICL sent an email to the respondents advising them that they should return the child to her father
Ms B was asked to facilitate the handover and agreed to do so at 5 pm on Tuesday. The second respondent replied saying “I am bit busy today as I am working full time and have other appointments…”
Ms B agreed to be available at 1 pm on Wednesday. On Wednesday morning when the father rang the school, he was told at 10.30 am that she was not there. At some time after that, the child arrived at school and was collected by the second respondent at noon.
The second respondent sent a message to the father at 12.50 pm saying that he had a flat tyre and was waiting for the NRMA. At 1.21 pm the father sent a message to the second respondent “Does this mean you are not taking the child to Ms B now?” and the second respondent replied “Yes sir”.
At 2.16 pm the father’s solicitors sent an email to the second respondent saying that proceedings would be commenced for a recovery order if the child were not returned immediately.
The second respondent contacted Ms B who advised that she was not available to facilitate a handover until Saturday 1 August 2020.
The child was eventually returned to her father’s care, with the assistance of Ms B, on 1 August.
There is a dispute about the events on that day. Although there was no evidence from the second respondent about what happened, in his cross-examination of Ms B he put a version of the changeover with which she did not agree.
Ms B agreed that the child was very distressed when she arrived at Ms B’s rooms in the care of the second respondent and his younger brother. There was no suggestion from the second respondent that he made any attempt to comfort the child and Ms B observed that he did not do so.
Ms B’s version of the changeover is found in her proof of evidence and is set out below.
Ms B is a very experienced psychologist. She has no vested interest in the outcome of these proceedings except that she is concerned for the child’s welfare. I accept her evidence.
The child asked to see Ms B again and Ms B told the child that she would telephone her on Friday evening after school.
On 1 August 2020, after the child had returned home with her father, the second respondent went to the police and requested a welfare check, not because he had any concerns for the child’s safety but, he said, because she might be upset. The police called the father at 10.30 pm to check on the child.
It is greatly to the father’s credit that on the following Friday, in accordance with the orders, the child went to the respondents in accordance with the orders.
Ms B telephoned the second respondent on Friday at about 5 pm hoping to speak to the child as she had arranged. The second respondent said he was at work. Ms B asked for the grandmother’s number. It was not provided and the respondent’s did not facilitate a call between the child and Ms B.
The child again went to the respondents on the weekend before the resumed hearing.
The grandmother gave evidence that, at some time over that weekend, when she was tidying the child’s room, she found the child’s diary. She said that whenever the child writes in the diary, she closes the door to her room and that the diary is always locked. On this occasion, it was unlocked. The grandmother showed the diary to the second respondent who photocopied it and the photocopies were tendered. It does not appear that the child was consulted about this use of her private diary.
Only seven pages had been written on. They were the first pages of the diary and not the dated pages.
On the first page the child wrote:
the court order is after tomorrow i am so scared help me im stressed and worried if i live with my dad ill die yes die if i live with my grandma ill by a puppy aww.
(As per the original)
On the second page the child wrote:
My crazy dad he had to take A anger management test he hated my mom he did not support her
(As per the original)
On the fourth page the child wrote:
Terrifying
Today I didn’t want to go to school so I called the police I told them im not happy at my dad (all the reasons) but then they said they can’t do Anything go to school i pretended to go but i did not I stayed home now lets see what happens.
Why I hate my dad
1.he drinks but he is not allowed to
2.he takes me to the park for 5-6 hours only park
3.he says if your bored watch tv he says many option to play wrong 1 option tv
my grandma loves me more
(As per the original)
I do not accept that the notes that the child wrote in her diary reflect her relationship with her father.
In relation to the first entry, Ms B said that the child had never expressed such thoughts to her but, to the contrary, spoke positively and lovingly of her father. It seems that the child has been told, or believes, that if she lives with her grandmother she will have a puppy.
The reference in the second entry to anger management is highly unlikely to have emanated from the child. It is more likely that the child has been told about this by the maternal family. Similarly, the reference to her father not supporting her mother is unlikely to have been the child’s recollection and is more likely to have come from the maternal family.
Similarly, the child’s reference in the fourth entry, to her father not being allowed to drink, is likely to have come from the maternal family. The orders made in May 2019 restrain the father from drinking to excess, but not from drinking. Ms B gave evidence that the child had not reported to her any of the concerns expressed in the fourth entry.
She stated:
The child has not reported to me any behaviours of concern regarding [the father]. She did mention that he had a ‘can of beer’. When I asked her if his behaviour had changed towards her in any way when this occurred, she stated that it had not. Following this I referred to the court orders that stated, [the father] was not to ‘drink to excess’ in the presence of the child. I was not at all concerned by the child sharing this with me, particularly as she did not appear to be distressed by it.
The child’s complaints under the heading “Why I hate my dad” are relatively trivial.
The timing of the “finding” of the diary is of concern. There are no entries in the diary for any date that would suggest that the child made regular or even occasional entries.
If it is the case, as the grandmother said, that the child wrote in the diary behind closed doors and always kept it locked, it seems unusual that the first entry was made only a few days before the hearing recommenced and that, coincidentally, the child did not lock the diary.
The most likely explanation of the diary entries is that they are an artefact of the pressure the child feels to demonstrate her loyalty to the maternal family, as both the Family Consultant and Ms B opined.

THE EVIDENCE OF MS B

Ms B adopted her proof of evidence and was cross examined by the respondents and counsel for the father.
Ms B is a psychologist.
She has been the child’s psychologist since 2017 when the mother brought the child to see her after receiving her diagnosis of terminal cancer. Ms B commenced seeing the child with her mother and, after the death of the mother, continued to see the child monthly.
Ms B reported the history given to her by the mother:
[The mother] had told me that [the father] had not had the care of the child after they had separated but that she and [the father] did spend time together with the child together. [The mother] spoke of taking the child to the beach with [the father]. [The mother] explained that prior to their separation, she and [the father] had argued and that this had frightened the child. [The mother] also explained to me at this time, that her mother and her family had never accepted [the father] and did not like or approve of him
After her mother died, the child was brought to see Ms B by her uncles and grandmother.
In relation to the sessions where the maternal family brought the child to see her, Ms B reported:
The maternal family would take some of the child’s time telling me that they were unhappy with the child’s current living situation with [the father]. They made complaints to me about [the father]. They requested, that as I am a mandatory reporter that I should be making reports on what they had told me.
Ms B met the father in 2018 and suggested that the father bring the child to her sessions.
Ms B stated:
Initially the child expressed reluctance to see [the father] following the death of [her mother], but the process as directed by the court lead to the child building a trusting relationship with her father. The child’s transition to live with [the father] appeared to go well. The child was concerned for her Grandmother following the court decision that [the father] would have custody of her, with access to her grandmother and uncles. The child stated to me that her grandmother had told her that if they do not have custody of the child, that they will need to return to Country G and that the child would never see them again. This has continued to be a concern for the child. The child has reported to me on several occasions that her grandmother cries often because [the mother] died and because the child is not allowed to live with her.
Ms B reported:
Following the change of living arrangements the child presented at sessions very happily. She spoke of being happy with her father and the things that they did as well as being happy with her maternal family. The child’s behaviour in my sessions was very settled following moving to live with her father. From time to time I would ask her. ‘How is Dad?’ She would respond fine. I would also ask ‘How are grandmother and your uncles?’ Usually she would say they are fine and mention grandmother crying. Earlier this year when I asked the child ‘How are grandmother and your uncles?’ she responded. ‘I don’t know how they are, but I’m fine’.
During 2019, both the father and the child’s uncles brought her to see Ms B. Ms B reports that she has repeatedly told the maternal family that they must comply with the orders of the Court.
In 2020, only the father has taken the child to see Ms B.
In relation to the events following the retention of the child by the maternal family on 26 July 2020, Ms B reported:
The recent hand over where the child’s uncles brought her to my office, the child presented as crying and in a very distressed state, she showed reluctance to come into my office, which she had never done before with any of the parties. At her previous session she was happy and as usual reported looking forward to her next session, we usually plan for the next session and she would decide if she wanted to paint or draw or use playdough and I would prepare for this. Both the child’s uncles came into my office with her. Both of them appeared distressed and neither of them were able to reassure or comfort the child. They appeared reluctant to leave, even though that was the arrangement. I had to ask them quite firmly to leave. The child’s behaviour settled quickly once they had gone. We did some drawing and she talked with me. The child also spoke with me again regarding, if her grandmother doesn’t get custody of her, then she will have to go back to Country G and the child will never see her again. She also asked me when she would see her grandmother again and if her Grandmother got custody of her, would she be able to still see her Dad. It seems apparent that this understanding was coming from the maternal family. The child has also reported to me that she does not always want to speak with her uncles or grandmother on the phone. She reported recently following the difficulties with her returning to her father, that she did not want to speak to her uncles on the phone. I stated to her that if she found this too distressing at this time, then she did not have to speak with them on the next occasion when phone contact was to occur. At the end of the session the child stated to me that she did not want her Dad to ask her why she did not want to be returned to him. I told her that we could discuss this with [the father] when he arrived. When [the father] arrived, the child appeared happy to see him. The three of us spoke briefly about what had occurred and [the father] agreed not to ask the child why she had not wanted to return to him, we also requested that her paternal grandparents not ask her this also. [The father] agreed that they would not ask her this either. [The father] said the only thing I want to ask you is ‘what do you want for lunch?’ and the child laughed. She went happily with [the father] and her paternal grandparents.

Ms B reported:
When the child has asked me about the court she seems to have been aware that the hearings were coming up, as these questions have arisen around the times, leading up to the current hearing and the previous hearing in May 2019. She has wanted to know about who decides where she will live. She has asked me if she can decide. I explained to her as clearly and age appropriately as I could, about how the court process works.
I explained to the child in May last year that the court had decided that her Dad is capable of looking after her and see has agreed with this. The child expressed concern for her grandmother at this time, as she knew that her grandmother would be distressed by this. I have explained that her that Grandmother has been given some time with her by the court, because of the relationship that she has had with her since she was very little. The child seems to continue to think that the court could give her Grandmother custody of her, even though I have explained to her that this has already been decided. I also explained the next thing to be decided by the court is how much time she will spend with her grandmother.
Ms B reported:
Of concern the child asked me recently if her grandmother ‘gets custody of her will she still be able to see her father’ which indicates that she may have heard some discussion regarding this. Also the escalation in the child [sic] distress regarding her grandmother’s wellbeing during the time approaching the court hearings in 2019 and 2020 would indicate that she was aware of the approaching hearings or that she had become aware of this as her grandmother’s distress had increased.
The child has stated to me on several occasions that she would just like the adults to like each other.
Ms B reported her observations of the child’s attachments:
The child has a bond with her maternal grandmother, particularly as the child’s mother has died and this is her closest contact to her mother. The child reports to enjoy time with her grandmother but does express concern that her grandmother continues to cry about [the mother] dying and not being able to have the child live with her. The child reports that she ‘mostly likes’ her uncles, particularly her uncle she calls Mr Shah [the second respondent], but I do not believe that her relationships with her uncles are of primary importance, as the child’s main discussion and concerns are for her Grandmother
In relation to the child’s relationships with the paternal family, Ms B reported:
I have observed the child with her father and paternal grandparents. On all occasions the child has appeared happy and comfortable in their presence. I have observed the child and her father … having conversations regarding what they are going to do during the day following my session with her. On these occasions the child appears happy and responds in a positive way to her father. I have observed what would appear to be genuine warmth between the child and her father. Given that following the separation of the child’s parents, as [the mother] had not left the child in the care of her father, the child had only spent time with him in the presence of [the mother] and since the child had memories of her parents arguing and had been frightened by this, her relationship with her father needed to be rebuilt, following [the mother’s] death so that the child could gain trust in her father’s ability to take care of her. This happened under the guidance of the court and I have observed this to have to been successful.
Ms B stated:
From my observations and from the discussions that I have had with the child, it is my opinion that the child has a good relationship with her father and paternal grandparents. I do not have any concerns regarding [the father’s] ability to take care of the child. I believe that the child has strong bond and a good relationship with her paternal family.
Ms B had no concerns about the child in the care of the paternal family.
She recorded her concerns about the maternal family:
I do have concerns when the child is in the care of [the grandmother] and her maternal uncles. For the following reasons:-
·their lack of ability to comply with the court orders.
·their lack of ability to return the child to her father when she is distressed and their delay in doing this when structures were put in place to support them in returning her
·their lack of ability to comfort the child when she is distressed
·their apparent sharing of information either deliberately or inadvertently with the child regarding the family court matters
·their reporting to me regarding unsubstantiated complaints of [the father] and questioning me as to why, being a mandatory reporter, I had not made a report on the information they had given me
·their apparent lack of ability to accept that [the father] is capable of looking after the child
·their apparent lack of ability to agree that the child is safe in [the father’s] care and apparent lack of desire to develop a collaborative working relationship with [the father] regarding the child’s care.
Ms B concluded with her recommendation that the child’s time with the maternal family be supervised with an interpreter present. She stated:
This would ensure that the child has contact with her Grandmother in a safe environment, where she would not be put at risk of not being returned to her father in a timely, calm and organised manner and matters that are distressing to the child would not be raised with her. The frequency of this could be monthly or as decided by the court. I do not recommend set regular phone contact with the maternal family. This could eventually be decided through agreement by both parties.
In cross-examination, Ms B was asked to consider her recommendation if it were accepted that supervised contact with an interpreter present was not a practical solution. She said that she would recommend time with the respondents once each month for a day or half a day but not overnight but that the time needs to be arranged so that there is no question whether the child will be returned.
Alternate proposals such as change overs only to and from school would reduce the stress for the child but would not deal with her apparent belief that she needs to show loyalty to her maternal family by denying her affection for her father.
Ms B said that the child had never said to her that she did not want to see her father or go with him or expressed any reluctance to be with him. She said the child expresses genuine happiness when talking to her about her father.
In relation to the child’s recent complaints about her father, Ms B said that the child had been told by the maternal family that if she does not live with them, they will return to Country G and that has distressed her. Ms B said that the child has a bond, particularly, with her grandmother and that she does not like seeing her grandmother upset.
Asked whether the child has ever said anything to suggest that she feels under some obligation from her maternal family to tell them that she doesn’t want to go with her father, Ms B said that the child had not spoken of that, but that she needs to show loyalty to her grandmother and that saying she doesn’t want to go to her father is her way of showing her loyalty.
Ms B said that for the child to continue to be placed in the position where she has to deny her affection for her father will be detrimental for her relationship with her father and detrimental for her psychological well-being. Ms B said that it is psychologically damaging for the child to be constantly told that her lived experience, of a loving relationship with her father, is not valid.
Ms B had been shown both the diary entries and the videos of the child in distress.
In relation to the videos, Ms B said that her concern was that they showed a child in great distress and that no attempt was being made to comfort her.
Ms B said that, similarly, when the child’s uncles brought her to Ms B’s rooms on 1 August 2020, and she was in quite a lot of distress and crying intensely, they made no attempt to comfort her.
Ms B’s opinion that there should be no overnight time with the maternal family was based, in part, on her concern that on those occasions to which reference has been made, when the child was very distressed, no one was comforting her.
In relation to the diary entries Ms B said that none of the complaints made by the child in the diaries had been made by the child to her but that the entries were indicative of the child’s being very distressed. She said she was unable to say what the child intended by writing the diary entries. However, she said, it was unusual for a child to call the police because she didn’t want to go to school.
Ms B said, “The child is aware of the conflict. She’s just a little girl in the middle”.

CONSIDERATION

The child’s mother has died. Her relationship with her father is of primary importance but her relationship with her grandmother, particularly, is also of great importance to her. Both the Family Consultant and Ms B have stressed the close and important relationship between the child and her grandmother.
Whilst the provisions of s60CC(2) of the Family Law Act 1975 (Cth) do not apply to the determination as between the father and the respondents because the respondents are not parents, it is nevertheless important to bear in mind that the principle applies equally here. That is, the Court must balance the primary consideration of the child’s having a meaningful relationship with both her father and the respondents (particularly her grandmother) against the need to protect her from psychological harm, the latter consideration taking precedence.
It is also necessary to bear in mind that the term “meaningful relationship” means a relationship that is meaningful, not optimal as the Full Court stated in Moose & Moose (2008) FLC 93-375. In McCall & Clarke (2009) FLC 93-405 the Full Court stated that a meaningful relationship is a relationship that is significant, important and of consequence.
The task is to fashion an arrangement which will allow the child to have enough time with her maternal family, and particularly with her grandmother, that she can maintain the meaningful relationship that she has, while at the same time removing from her the stress of having to reassure the maternal family of her loyalty by rejecting her father.
Neither the Family Consultant nor Ms B gave evidence of having canvassed the child’s views about her living arrangements. The child was only six years old when she was interviewed by the Family Consultant and her views at that time were not material. Ms B has seen the child recently. She said that, in 2018, the child has said she wished she could see her grandmother only at the park but she did not give any evidence of any other discussion with the child about where she would live.
Ms B reported that the child has said to her that “she would just like the adults to like each other”. Sadly, that is an unlikely outcome.
However, it was Ms B’s evidence that the child was settled and happy in her father’s care.
I accept the evidence of Ms B that the child has a loving and happy relationship with her father and this is the relationship that has primary importance for the child’s future psychological well-being.
I also accept that the child has a loving and close bond with her grandmother. I accept the evidence of Ms B that the child’s relationship with her uncles, including the second respondent, is not a primary relationship for her.
The father’s attempts to participate in the child’s life, after the death of her mother, were actively frustrated by the maternal family who excluded him from both spending time with her and from being involved with her medical care.
The central issues in this decision are twofold. Firstly, the ability of each of the father and the maternal family to support the child’s relationship with the other and, secondly, the likely effect of a change in the child’s present living arrangements.
I have no confidence that the attitude of the maternal family towards the father is any different from that which was expressed to the Family Consultant. They do not believe that he genuinely loves the child or that he is capable of caring for her. They do not believe that the child loves her father.
In cross-examination on 18 August 2020, the grandmother said that she believes the child was telling the truth when she made complaints about her father. She continues to believe that the father does not love the child “enough”. In cross- examination she said, “If he is giving her enough love why is she writing in her diary?”
The grandmother, in cross-examination, said of the child, “I want to raise her and I want to see my daughter in her”. She said that the child calls her “mother” and that she does not discourage her from doing so because she does not want to upset the child.
The second respondent, in answer to a proposition from counsel for the father that the child is his niece, said “I take her as my daughter”. In cross-examining Ms B, the second respondent said “[the child] calls me dadda”.
The father asserts that when he went to D Hospital on 7 June 2020, after the child had been taken there by the second respondent, contrary to court orders, the second respondent said to him, in the child’s presence, that he was the child’s father and the father corrected him, saying that the second respondent was the child’s uncle.
Despite the protestations of the grandmother and the second respondent that they want to have a co-operative relationship with the father and raise the child together with him, there is no evidence that they have ever done anything to build such a relationship.
Nothing in the evidence of the respondents suggests that they are either willing or capable of supporting the child’s relationship with her father.
The child continues to feel it necessary to show her loyalty to her grandmother and maternal family by disavowing her affection for and bond with her father to an extent that is psychologically damaging for her.
The difficulties that have arisen around changeovers are the physical manifestation of the child’s stress. The child cannot continue to be subjected to episodes such as occurred at school in March 2019 or at the failed handover on 26 June 2020 and the events of 1 August 2020. Not only was each of those occasions extremely distressing for the child but on each occasion she missed days of school because the respondents were unable or unwilling to persuade her to attend.
One striking similarity between those three episodes is that there was no attempt by anyone in the maternal family to comfort the child on either occasion.
The respondents, for the purpose of the resumed hearing, prepared a series of video recordings, eight in all. The short recordings each showed the child, in the care of the maternal family, in extreme distress with no sign of any member of the family offering her any comfort.
In her report, Ms B said:
I am currently concerned regarding the child’s emotional wellbeing, when in the care of her maternal family. I am concerned about their apparent lack of ability to comfort the child when she is distressed as observed, when her uncles recently brought her to my office for hand over to her father. I am concerned about some videos shown to me today by the ICL, provided by her maternal uncle. These videos continue to raise my concerns regarding the grandmother’s and uncles’ ability to support and comfort the child when she becomes distressed. I am concerned also as to what had caused the child to become so upset when in their care as shown in the videos.
If the maternal family is incapable of managing the transition of the child back to her father’s care in a manner which does not result in the child’s becoming distressed, then the handovers will have to be limited.
The orders which were made in May 2019 were made, in part, to allow the maternal family the opportunity to demonstrate that they could be supportive of the child’s relationship with her father and that they would abide by orders.
They have failed to demonstrate that they could do either of those things.
I accept the evidence of Ms B that the only way to remove the child from this conflict of loyalty is to substantially reduce the time she spends with the respondents.
At this time, because of the COVID-19 restrictions, supervised handovers are not available and there is no indication when they will again be available.
In the present circumstances, there is no option but to limit the number of changeovers.
I accept the evidence of Ms B that time with the maternal family once each month for half a day will be sufficient for the child to maintain her relationship with them but sufficiently limited that she will not become overwhelmed and stressed managing the expectations of that relationship.

PARENTAL RESPONSIBILITY

The father has had sole parental responsibility for the child since May 2019. This has not prevented the respondents from authorising medical treatment for the child.
The respondents seek an order for equal shared parental responsibility.
I do not propose to make such an order.
The respondents are not parents.
Between 25 June 2018 and May 2019, there were orders in place for shared parental responsibility. Despite those orders, the respondents took the child to new general practitioners, to hospital and to see two new counsellors without any consultation with the father.
There is no evidence which would suggest that there is any possibility that the father and the respondents can act co-operatively to make decisions for the child.
The father has demonstrated that he is able to make responsible decisions in relation to the child’s schooling, medical and health matters and her day to day care.
The father will have sole parental responsibility.

SOCIAL MEDIA

In the care of the respondents, the child has had an active presence on TikTok, Snapchat, Facebook and WhatsApp. This has occurred without the knowledge of the father and apparently without any understanding on the part of the maternal family of the ease of access by members of the public to the TikTok account. The child has uploaded 185 videos on TikTok.
Whether or not the child is permitted to have a social media presence is a matter for her father and the respondents will be restrained from allowing the child access to any social media without his express consent.

COSTS OF THE ICL

As he is required to do, counsel for the ICL made an application for an order that the parties each pay half of the ICL’s costs.
The father is an allied health professional. The first respondent does not work. The second respondent is a shift worker.
I am satisfied that neither the father nor the respondents are financially able to pay the costs of the ICL.
No order will be made.

I certify that the preceding two hundred and seventeen (217) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 31 August 2020.

Associate:

Date: 31/08/2020

[2020] FamCA 719

31 August 2020

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Remedies

Procedural Fairness