Brighton and De Caria Angelis

[2014] FamCA 1162

FAMILY COURT OF AUSTRALIA

BRIGHTON & DE CARIA ANGELIS [2014] FamCA 1162

FAMILY LAW – CHILDREN – Interim – Where there are concerns about the mother’s mental health – Where the Independent Children’s Lawyer and the father contended the child was at a significant risk of emotional harm if he continued to live primarily with the mother pending the trial – Where interim orders are made for the child to be removed from the care of the mother and placed into the care of the father –Where the Court is satisfied that it would not be in the best interests of the child for there to be a continuation of both parents having equal shared parental responsibility

Family Law Act 1975 (Cth)

APPLICANT: Ms Brighton

RESPONDENT: Mr De Caria Angelis

INDEPENDENT CHILDREN’S LAWYER: Ms Fotheringham

FILE NUMBER: BRC 83 of 2010

DATE DELIVERED: 18 December 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 18 December 2014

REPRESENTATION

FOR THE APPLICANT: Self-Represented

FOR THE RESPONDENT: Self-Represented

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

Orders

It is ordered until further order that:

1. The child, B born on .. 2006 (“the child”), shall live with the Father.

2. The Father shall have sole parental responsibility for making decisions about a major long-term issue in relation to the child, albeit:

   a.      with respect to any such decision to be made, the Father shall communicate the issue to be decided upon to the Mother;

   b.    the Mother to have the reasonable opportunity to advise the Father of her views; and

   c.      the Father shall take into account the Mother’s views before making the decision.

3. The Father shall keep the Mother notified in advance of any relevant medical apointments for the child and that she be at liberty to attend such appointments.

4. Commencing on the weekend beginning 27 December 2014 and for each weekend thereafter, the Mother spend supervised time with the child from 9.00 am to 5.00 pm on one day of each weekend with such supervision to be provided by either of the Mother’s brother Mr J Brighton or her parents, Mr K Brighton and Ms L Brighton, with such supervision to be subject to and conditional upon:

   a.     the Independent Children’s Lawyer obtaining and filing and serving an affidavit by each of those persons deposing to their availability and willingness to undertake such supervision and deposing to their understanding, irrespective of their own personal views as to the need for supervision, of the purpose of such supervision on an interim basis;

   b.    if that condition is not fufilled, then the supervision is to occur at a Contact Centre nominated by the Independent Children’s Lawyer to the parties and in that event each party is to comply with all requirements identified by the Independent Children’s Lawyer in terms of intake interviews and the like to have the facility of the Contact Centre available as soon as possible.

5. Subject to the condition for supervision in Order (4) hereof, the Mother shall spend supervised time with the child between 10.00 am and 2.00 pm on Christmas Day 2014.

6. The Mother shall communicate with the child by telephone as agreed between the parties but failing such agreement, every evening between 5.00 pm and 6.00 pm with the Father to facilitiate the child to be available to receive such telephone calls.

7. The Father shall cause Dr D of the Suburb C Central Medical Centre to be the treating general medical practitioner for the child, and in the absence of that doctor another doctor from the Suburb C Central Medical Centre, as needed.

8. The Father is to continue the child’s treatment as necessary with Dr M, paediatrician, of the Suburb N Health Centre.

9. Otherwise, the child not be involved in any interviews with any medical health professionals subject only to the need for any urgent medical condition, save only in respect of the child’s continued attendance for occupational therapy treatment.

It is ordered that:

1. Pursuant to section 121(9)(g) of the Family Law Act 1975 (Cth), the Independent Children’s Lawyer have leave to forthwith provide the Reasons for Judgment of the Honourable Justice Kent delivered today and the report of Mr E, psychologist dated 18 November 2014 and contained in his affidavit filed on 18 December 2014, to the Department of Communities, Child Safety and Disability Services.

2. Dr F, psychiatrist be appointed the single expert to undertake psychiatric assessments of the Mother and the Father and for the purposes of that report:

   a.    the Father attend upon Dr F’s rooms at 11.00 am on 21 January 2015 for the purpose of a 12 midday appointment;

   b.    the Mother attend upon Dr F’s rooms at 11.00 am on 28 January 2015 for the purpose of a 12 midday appointment; and

   c.    that each party fund the provision of Dr F’s report by each being responsible for payment of the amount of $4,620 as required by Dr F for his report.

3. The Independent Children’s Lawyer is given leave to provide Dr F, psychiatrist with any subpoenaed documentation or documentation from the Court file required to assist in the preparation of the psychiatric assessments of the Mother and Father. 

4. As a condition of these parenting orders, the parties shall comply with any reasonable requests of the Independent Children’s Lawyer to attend all necessary appointments or rescheduled appointments for the preparation of the psychiatric assessments.

5. The Independent Children’s Lawyer is to organise the preparation of an updated Family Report, preferably by Mr E, psychologist, for the final trial of these proceedings.

6. Leave is given to the Independent Children’s Lawyer to provide any updated subpoenaed documentation or documentation from the Court file to the Family Report Writer to assist in the preparation of the updated Family Report.

7. As a condition of these parenting orders, the parties shall comply with any reasonable requests of the Independent Children’s Lawyer to attend and ensure the child attends all necessary appointments or rescheduled appointments for the preparation of the updated Family Report.

8. Leave is given to the Independent Children’s Lawyer to issue updated subpoenae directed to the following:

   a.         Department of Communities, Child Safety and Disability Services;

   b.         Queensland Police Service;

   c.         Education Queensland;

   d.         Dr O;

   e.         Dr M; and

   f.          leave to issue a subpoena for the purposes of the trial of these proceedings to Dr D of the Suburb C Central Medical Centre.

9. Pursuant to section 65L of the Family Law Act 1975 (Cth) any Orders made today are to be explained to the child by a Family Consultant of the Family Court of Australia, Brisbane Registry, if available, together with the Independent Children’s Lawyer.

10. The childcare section of the Family Court of Australia, Child Dispute Services Brisbane Registry, is to release the child into the care of Mr P between 1.00 pm and 2.00 pm today.

11. Mr P is to return the child by 2.00 pm today to the childcare section of the Family Court of Australia, Child Dispute Services, Level 3, Commonwealth Law Courts, 119 North Quay, Brisbane.

12. The childcare section of the Family Court of Australia, Child Dispute Services Brisbane Registry, is to release the child into the care of the Father at the conclusion of the interim hearing today.

It is further ordered that:

1. The substantive proceedings and the Father’s Contravention Application filed on 26 May 2014 be listed for trial for three (3) days commencing at 10.00 am on 20 April 2015 at the Family Court of Australia, Brisbane Registry.

2. The Applicant pay the hearing fee by 4.00 pm twenty-eight (28) days prior to the commencement of the final hearing unless a reduction of the fee is obtained beforehand.

3. Leave is granted to each party to re-list the matter on the giving of forty-eight (48) hours notice in writing to each party.

4. Pursuant to section 62B and section 65DA(2) 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 83 of 2010

Ms Brighton

Applicant

And

Mr De Caria Angelis

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These parenting proceedings and contravention proceedings concern the child B born in 2006 who is thus now eight years of age.

2. The parties to the proceedings are the child’s father Mr De Caria Angelis whom I will refer to as the father and his mother Ms Brighton whom I will refer to as the mother and the Independent Children’s Lawyer appointed pursuant to s 68L of the Family Law Act 1975 (Cth) (“the Act”) to independently represent B’s interests in the proceedings (“the ICL”).

3. On 10 October 2011 the parties and the ICL entered into orders by consent to be made on a final basis bringing to a conclusion litigation that had been on foot for a period prior to those orders. Those orders were made in the then Federal Magistrates Court. Relevantly the orders provided for the parents to have equal shared parental responsibility for a number of identified long term issues and, in terms of time, the child was to live mainly with the mother initially but having five nights a fortnight with the father for the balance of the 2011 year; but then progressing to week-about time with each parent commencing from the first week of the school term in 2012.

4. It is also clear from those consent orders as is reflected in material that has been tendered before me today, to which I will refer, that was available prior to the making of those orders there were limitations placed upon the child being involved in further counselling and further other professional appointments. Plainly, that had been an issue in the litigation leading up to the consent orders made on 10 October 2011.

5. In broad terms those orders in terms of time took effect and thus the child spent week-about time with each parent for the 2012 year and for the 2013 calendar year but as about April 2014 the mother unilaterally determined to suspend the child’s time with the father and that occurred on or about 7 April 2014.

6. On 10 April 2014 the mother filed an Initiating Application and a Form 4 Notice of Abuse and, in short, sought that the earlier consent orders be set aside and new parenting orders made. Soon after her filing of that application the father filed on or about 26 May 2014 an Application for Contravention of Orders alleging breaches by the mother of the orders referred to having commenced on 16 April 2013. The breaches alleged related to the mother making a referral to a service provider, namely I Org, for the purpose of undergoing counselling for alleged sexual abuse without a referral from his medical practitioner; and without discussing or seeking the permission of the father to so do. It was the contravention application that brought these proceedings before the Court on Monday of this week.

7. The father’s affidavit filed on 26 May 2014 in support of his Application for Contravention made it clear that the father was seeking as part of that application a variation of the final orders earlier referred to.

8. Section 70NBA provides the power to vary when contravention proceedings are brought. The father sought, by variation, that the child be placed in his primary care with the mother to only have supervised time “until the Court could be satisfied that the mother completed suitable assessments, therapy and training that the Court deems suitable to assist her with her mental and emotional health in order to prevent the ongoing emotional abuse of the child whilst he was in her care.”

9. On 15 December 2014 it seemed clear to the Court that in the face of the substantial variation to the primary orders sought by father pursuant to his Contravention Application; and the existing Initiating Application by the mother likewise seeking fundamental changes to those orders; that a contravention hearing as such was unlikely to progress the matter very far. That Application for Contravention would have had to be heard against a background of allegations of physical and sexual abuse alleged by the mother against the father. It was on that basis that I raised with the parties at the hearing on Monday the need for there to be a final trial of parenting proceedings with the Contravention Application to be adjourned to such a trial given that it seemed that questions about breaches and whether or not the mother had a reasonable excuse for breaching orders would be fundamentally interwoven with the issues concerning final parenting orders to be made in the substantive proceedings on foot.

10. On 15 December 2014 I also adjourned the matter to today for the purpose of an interim hearing. I have arranged to have the final trial of these proceedings listed to commence on 20 April 2015. In doing that I have given some priority to this case over others given that it seemed to me the need for there to be the earliest possible hearing of final parenting orders.

11. Thus it is that the question now are the interim parenting orders to be made in the child’s best interest which will apply for the next four months before the trial is heard on 20 April 2015. I should also mention that as at Monday of this week 15 December the family report of clinical psychologist Mr E had become available. The ICL tendered a copy of that affidavit and report together with an email exchange between the ICL and Mr E. There are significant issues of concern raised in both documents, the latter being admitted and marked Exhibit 1 in these proceedings. I will make further reference to those documents but suffice to note that having regard to the contents of those documents Ms Fotheringham, the ICL submitted that there ought be a discreet interim hearing rather than proceeding on Monday; with certain arrangements to be put in place (as reflected in Exhibit 1) for the purpose of this hearing.  Thus it was that today was the interim hearing of the interim parenting orders to be made.

12. It is well known and recognised by the Court that there are significant limitations in an interim hearing.  Those limitations have added effect where, as here, both parents are self-represented and do not have the advantage or assistance of legal representation.

13. The fundamental limitation in an interim hearing is that the Court does not have the benefit of cross-examination to resolve disputed issues of fact as between the parties or parents; or to test the veracity of facts recorded in subpoenaed material if that be an issue; or to test the opinions of investigating police officers or child welfare officers where, as here, there is material sourced from those authorities.

14. Without cross-examination there is obviously not the opportunity to test the validity of any expert opinions that are before the Court. Moreover, in an interim hearing, the Court does not have available to it all of the relevant evidence that is likely to be available for the purpose of determining final orders.

15. Within those constraints it is often the case that on an interim hearing there is not much in the way of helpful evidence in terms of evidence independent of the parties in an attempt to resolve disputed issues of fact. However, that does not seem to be a limitation that applies in this particular case.

16. Whilst none of the evidence is tested as in the manner to which I have referred by the ability of parties to cross-examine relevant witnesses; there has been put before the Court, properly, a plethora of material gathered over a significant period of time. Exhibit 3 in the proceedings is material that was available in the proceedings prior to the final consent orders made in 2011 to which I have referred. That includes three family reports and the opinions and affidavits of a clinical psychologist.

17. The family report recently available from clinical psychologist Mr E lists the documents that Mr E had available to him for the purpose of his report and his opinions. The ICL tendered before the Court the extracts of relevant subpoenaed documents which were made available to Mr  E for the purpose of his report. That material runs to some approximately 300 pages of material sourced predominantly to the Department of Communities, Child Safety and Disability Services but also including material sourced from the Department of Education, the Q Hospital, the R Surgery, the S Medical Practice and the Queensland Police Service.

18. I have sought to emphasise during the course of the hearing today that there will be a final trial of parenting proceedings commencing on 20 April 2015. The interim orders that are made today will operate only until further orders are made by the Court following a final trial. I have in the course of the hearing made a number of orders, that need not be restated, to progress the matter to that trial.

19. The report compiled by Mr E is a comprehensive report given the breadth of the material to which he made reference in forming his opinions and conclusions. I reiterate that that report has not been tested by cross-examination as would likely occur at a trial. 

20. At the outset of this interim hearing it appeared to be the position that each parent was contending that the other parent posed a significant risk to the child. In the case of the mother it seemed to be clear that her case was that the father posed an unacceptable risk of sexual abuse to the child; and that position was fortified by a relatively recent further notification made by her on or about 11 December 2014 alleging sexual abuse against the father.

21. For her part the ICL (and the father) contended that it was the mother who posed an unacceptable risk to the child. Their contentions were to the effect that the history of the matter discloses a consistent and entrenched pattern of the mother making false allegations of sexual abuse as against the father to limit or interfere with his relationship with the child and his time with the child.

22. It thus was that the proposals of each party as at the outset of the hearing could hardly be said to be more divergent. The mother’s proposal as initially stated was that an interim order ought be made for the child to live with her and to have only supervised time with the father. Conversely, the proposal of each of the ICL and the father was that the child should live primarily with the father and have supervised time only with the mother pending the trial.

23. Thus presented, the quandary for the Court was to determine, on an interim hearing with all of its limitations to the best of the Court’s ability to so do where the preponderance of risk lay. That is, notwithstanding the limitation in making concluded findings of fact it was the case that the ICL and the father were contending a real and substantial risk based on a great deal of evidence to which I will refer to the child being under a significant risk of emotional harm if he continued to live primarily with the mother. Conversely, the mother contended that placement of the child with the father would present a substantial and unacceptable risk of harm to him in particular from sexual abuse.

24. The ICL’s position in seeking interim orders for what is obviously a significant change of circumstances for the child, even though it is only to operate for the four months or so before the trial is held, rests heavily upon the conclusions and opinions expressed by Mr E in his report.

25. In paragraph 9 of his report referring to the mother’s application in the substantive proceedings Mr E noted the mother’s range of concerns against the father and broadly summarised them as follows:

    a)That the father has prevented her from seeking appropriate educational, psychological and behavioural support for the child;

    b)That there have been incidents of aggression and violence perpetrated between the father and his new partner Ms T and against the child by both the father and Ms T;

    c)And “most seriously” as referred to by Mr E, that the father has committed acts of sexual abuse against the child.

1. At paragraph 10 Mr E summarises the father’s primary concern as being that the mother is trying to alienate him from the child and that if this was successful it would cause significant emotional damage to the child. The father also contends that the mother’s behaviours to achieve this goal are similarly damaging to the boy.

2. Mr E attempts to detail the nature and background of the parental relationship. Shortly stated the parties commenced cohabitation in about November 2003 and, as Mr E notes, it is difficult to know precisely when they finally separated. As already noted, the child was born in 2006 and it is clear that the parents had certainly finally separated no later than 9 July 2009. However, it seems there was a separation when the mother was pregnant with the child and the father travelled from U Town to Brisbane to be with the mother upon the child’s birth. It seems that she and the child did return with the father to U Town for a period and hence it is unclear precisely the nature of the relationship from time to time.

3. What is relevant for present purposes is that the parental relationship was, it seems, dysfunctional and in any event was not of long standing. More fundamentally, it has been marked by conflict ever since at least the final separation date of July 2009. As Mr E assessed it, the relationship has been “heavily laden with interminable and seemly unresolvable conflict” and further “despite co-parenting for a relatively long period of time, the couple have thus far proven unable to identify effective co-parenting strategies especially to resolve the frequent disputes that arise between them.”

4. There is a plethora of evidence before the Court including expert medical opinion from a paediatric specialist that the child’s behavioural difficulties for a long time now are likely to be the product of the parental conflict. There is in the material before me concerning evidence sourced to schools of the nature of the child’s behaviour and dysfunction in the school setting.

5. At paragraph 27 of his report Mr E focuses upon the history of the mother’s dealings with the Department of Child Safety. I pause to note here that even prior to the final orders that were made in 2011, the mother was making serious allegations against the father including an allegation of alleged sexual abuse. Such allegations seem to have first been made as early as 2009. Relevantly, notwithstanding an allegation of sexual abuse having been made against the father prior to the final orders being made; the mother consented to final orders in the terms I have earlier touched upon. In particular, orders seeing the child spend week-about time with his father.

6. The voluminous evidence concerning the involvement of the Department of Child Safety and Police includes the Department having undertaken at least four and perhaps five investigations and assessments just within the 2013 calendar year. At paragraph 37 of his report Mr E records, as is the fact, that the Department concluded that the mother’s complaints were vexatious and malicious and that the Department undertook an investigation of the mother for potential emotional harm of the child via the making of the numerous notifications she had made to that point. As Mr E notes, the emotional harm contended by the Department was substantiated by its assessment.

7. The Department assessed that the child was a child in need of protection due to the mother’s actions. The Department invoked what is referred to as an intervention with parental agreement. As is recorded by Mr E, the goal of such an intervention was to ensure that the child would not be further emotionally harmed by conflict between the parents, and that the mother would cease undermining the father’s time with the child.

8. However, as Mr E refers to in paragraph 37, and is clear from the subpoenaed documents before the Court that the Department ceased that intervention because the mother was using it to make yet further complaints about the father and at that stage the Department had identified the father as a person and parent capable of protecting the child from harm.

9. Notably at paragraph 37 Mr E records the mother as having rejected absolutely the findings made by the Department and suggests that at all times the concerns she expressed were made protectively and having her son’s welfare in mind. Mr E records the mother as alleging a conspiracy operating against her potentially referable to the father’s current partner’s employment as a child safety officer.

10. Mr E notes at paragraph 38 of his report that previous report writers have raised significant concerns for the mental health of the mother. I have noted that Exhibit 3 includes at least some of those reports. For his part Mr E records that he formed his own concerns about the mother’s mental health.

11. In contrast to what the mother told Mr E, as referred to, which was only on 1 November 2014, a little over a month ago, the mother informs the Court today in her final submissions that she has fundamentally changed her position in relation to the allegations. She submitted that she had reflected on today’s hearing and whilst she had been caught off-guard by it and found it confronting and felt criticised for acting protectively for her son; she had taken on board the evidence that has been referred to in the course of the proceedings.  She thus urged the proposition that she was willing to engage in any necessary therapy that might assist her in recognising her problems and past behaviour. She specifically referred to accepting any recommendation Dr M might make. She contended that she thought she had done the right thing in terms of making the reports and that this was done as being protective and made honestly by her. She said that the position she had come to upon reflection, and by reason of the evidence referred to in today’s hearing, is that she was no longer accusing the father “of anything” to use her term and was “not alleging anything against [Mr De Caria Angelis].” The Court sought clarification of those statements and the mother confirmed that she was not accusing the father of perpetrating sexual abuse as against the child.

12. Mr E reflects in paragraph 45 of his report an opinion to the effect that the mother may have an unhealthy attachment to the child. He notes that previous report writers have written in some detail on that issue. It is clear on a historical record by reference to the earlier reports that from time to time it has certainly been the mother’s position to limit the father’s time and involvement in the child’s life, perhaps even to the extent as reflected in some references, that it would be her preference for the child to live with her and have no time or communication with the father.

13. Mr E assesses in paragraph 49 of his report that the mother is most likely motivated by an unhealthy attachment for her son and that her behaviour is driven primarily by a desire to gather evidence for her accusations against the father. Mr E refers in paragraph 52 to the feature that the mother’s behaviour in terms of making adverse allegations against the father commenced prior to 2011 by reference to the final orders I have earlier referred to and as he puts it “has continued seemingly unabated since that time.”

14. Notably for present purposes, the history includes that which Mr E refers to at paragraph 54 of his report. Mr E makes the specific reference to the feature that prior to the orders of 2011 the mother had made allegations about sexual impropriety on behalf of the father to both the Department of Child Safety and to the Police but when later interviewed by family report writers was willing to say that she no longer believed that the father had harmed the child. However as Mr E notes this was not to stop her from going on to make yet further allegations against the father. As he puts it, including the most recent allegations which “have caused her to contravene the consent order”. It is to be noted that yet again on 11 December 2014 a further notification has been made by the mother which post-dates Mr E’s recent report.

15. As Mr E records, and it is confirmed by all of the subpoenaed material I have had regard to in material sourced to the Department and to the Police; the historical accusations made have never been proven to have any basis in reality. Mr E opines that it is likely the mother knew the allegations were false at the time she made them but that is an issue that can only be tested at a trial.

16. What is relevant is that there have been repeated and numerous investigations of allegations, made over a long period, by the Department of Child Safety and Police. The subpoenaed material reflects full investigation of each of them and it reflects that on each occasion there was found to be no evidence to support the mother’s complaints. In summary, as Mr E notes, no allegation investigated by the Police or Child Safety has ever been substantiated save only in respect of the contention of emotional abuse so far as the mother is concerned, by the making of the notifications.

17. Of particular relevance to this aspect as it seems to me is that the Department records include at page 251 of volume 2 of Exhibit 2 reference to events in May 2013. It is there recorded that on 20 May 2013 the mother contacted the officer of the Department to advise that having spoken to the child about disclosures he had made, the child had admitted that he made the allegations up as he did not want to go to his father’s home. Notwithstanding that, only four days later, namely on 24 May 2013, there was a further notification to the Department and the notifier advised the Department that the mother had contacted their service on that day, and confirmed that the mother had been contacting the service since the previous year, and that the mother had provided the most recent concerns to them as outlined in the record of concerns for the intake. That means on the face of the records that notwithstanding what she had told the Department on 20 May 2013 the mother had gone to I Org (she identified that being the relevant service which notified) only four days later on 24 May 2013 and caused I Org to make a separate notification to the Department of the same allegations.

18. The mother contended in submissions before me that in fact she told the person she spoke to at I Org, a person she identified as Ms H, that she had in fact informed I Org to the effect that the child had retracted his allegations, in the sense of confirming that he had made them up, only four days earlier. Again, that is a trial issue, but it is difficult to understand why it would be that I Org would make a notification of the same concerns on 24 May 2013 if they were possessed of information to the effect that the child had admitted only four days earlier, that the relevant allegations were a fabrication.

19. Mr E records in paragraph 68 of his report that by November 2010 the Police had formed the view that there was no basis to any of the reports about the father; and that too was a position subsequently shared by the Department of Child Safety who have never substantiated any of the complaints against him. What is fundamentally relevant about this history for present purposes is that the subpoenaed records from the Department clearly indicate that when the point was reached that the Department was concerned about the mother perpetrating emotional abuse upon the child by the making of false or fabricated allegations against the father, she was counselled by more than one officer as to the potential damage to the child of the making of allegations and the process that was involved in investigating and assessing them. It seems to me that is fundamentally relevant to the mother’s submission to me today, to the effect that she has now reviewed and reflected upon the evidence today, and has a different approach.

20. As Mr E puts it in paragraph 74 of his report:

    “the allegation that [Mr De Caria Angelis] has been involved in sexual impropriety towards the child is an extremely serious one. This is not the first time that the allegation has been made and explored, rather there have been many such allegations made. They have each been investigated and in turn there has never been any evidence to substantiate an allegation against [Mr De Caria Angelis]. In fact the circumstances are such that the Police and Child Safety have formed the view that not only is [Mr De Caria Angelis] blameless in this matter, but that the complainant [Ms Brighton] is maliciously making false complaints, that complaints from her should subsequently be disregarded (unless there is significant evidence) and that it is her behaviour that is causing harm to the child.”

21. At paragraph 92 of his report Mr E assesses the child to be a child with many special and complex needs requiring significant levels of support. In the home environment he is recorded to have demonstrated a range of difficult behaviours including attempts to touch his mother sexually, recurring incidents of inserting fingers or objects into his anus and occasional exposure of his penis. He has had episodes of encopresis, along with a general history of bowel and “tummy difficulties”. the child’s drawings are often disturbing, revealing scenes for example of unhappiness and suicide.

22. There is to be noted in the subpoenaed material and the evidence generally, significant evidence giving cause for concern about the child in terms of his behavioural difficulties and his acting out behaviours and potentially attention-seeking behaviours. He has reached a level and stage of cognitive development that he will increasingly be aware of the conflict between the parental relationship. The last thing he needs is being involved in further allegations against his father or any escalation of his behaviours produced as a result of the parental conflict.

23. Mr E importantly reached this opinion at paragraph 125 of his report:

    Both [Mr De Caria Angelis] and [Ms Brighton] express a positive attitude towards parenting [the child]. I am convinced that both love him in their way. Unfortunately [Ms Brighton] in particular has had difficulties demonstrating her love in an appropriate way. She has proven to be jealous and possessive and has set out to alienate the boy from his Father so that she might have sole possession of him. In doing so, disregarding not only [Mr De Caria Angelis’] right to be a parent but also [the child’s] right to have a relationship with his Father.

24. Thereafter Mr E expresses some concerns about the mother’s mental health in terms of her levels of anxiety, her attachment style with her son and her levels of insight and her capacity to maliciously make false allegations with little thought for the consequences of that behaviour. Mr E assesses the potential for an unhealthy attachment style between the mother and the child motivating her as seeking to alienate him from his father “so that she can have sole possession of him and his love.” Mr E opines that that is the motivation for false allegations being made against the father but importantly resulting in unnecessary investigations confusing to the child.

25. As Mr E points out in paragraph 129 of his report the fact that the mother has been identified as a malicious complainant by the Police and the Department of Child Safety in one sense restricts her conduct in that regard but unfortunately as he puts it “does not necessarily stop her from interrogating the child, recording his comments either on phones or in notebooks or by other means, or by raising these allegations with other random health professionals.”

26. As noted, not long after that report yet another allegation was forthcoming on 11 December 2014.

27. In one sense the mother’s final submission to the effect that she has now realised, as it were, the error of her ways and seeks to have a different approach in future is a positive development; but it is made against a long history of similar types of assertions by the mother to be made only for them to be followed by yet further serious allegations against the father.

28. Mr E assesses at paragraph 132 that there ought be grave doubts about the mother’s capacity to self-regulate her conduct. Of particular concern Mr E opines that the mother’s behaviour could “potentially escalate in the future.” He then notes that the Court has previously attempted restraints upon her conduct, a reference to the order historically made, yet it is clear on the material, even that submitted by the mother, that as Mr E puts it such orders were “spectacularly ineffective” from preventing the mother from doing so.

29. It was submitted by the ICL that Mr E’s reference to escalation in the future might include the mother leaving the jurisdiction or potentially going into hiding; to another extreme of potential harm to the child or self-harm. No doubt the mother would contest those conclusions but the reality of things for the moment is that on an interim hearing it is risk that needs to be guarded against and the potential if the risk were realised.

30. On her changed position the mother submitted that orders on an interim basis ought be made for the child to live with her primarily and have alternate weekend time with the father from Friday afternoon until Sunday afternoon. Thus it is that on the mother’s case as ultimately advanced, the mother does not contend or no longer contends that the child would be at any material risk in the care of his father. On her contention, it would be in the child’s best interests to maintain a relationship with the father, having alternate weekend time on an unsupervised basis. Thus on the mother’s altered position it was no longer a choice for the Court to choose between two different risks, as had appeared to be the case at the outset of the hearing as earlier referred to.

31. As it transpires, the only relevant risk that needs to be assessed by the Court is that advanced by the ICL and the father as to the potential for yet further allegations to be made by the mother or indeed for risks of the kind referred to by Mr E being realised. That is, an escalation by the mother in some form of her behaviour in circumstances where it is now again demonstrated that the allegations of sexual abuse, at least for now, come to an end in terms of progressing any case she advances concerning parenting arrangements. It was on that basis, in terms of having regard to the potential escalation of risk, and the potential for repeated disclosures to be made that Mr E made the recommendations that he did in his report which included the recommendation that the child live primarily with the father.

32. Plainly enough that would be a significant change for the child. He has always experienced either the primary care of his mother or at least an equal shared care arrangement on a week-about basis. That said, it has been the child’s experience to have significant care from his father, again as a result of the orders made in October 2011 which involved the father having equal or shared care of the child throughout 2012 and 2013 until early 2014.

33. I emphasise that on an interim hearing, within all of its constraints, the allegation of any risk for a child must be weighed in the sense of there being an inability to determine the risk in a final way but to have regard to such risk in terms of allowing for that risk ultimately being established as real at a final trial. It is on that basis that when allegations of risk are advanced on an interim basis the Court, acting in the best interests of the child, takes a conservative approach to guard against the risk until the allegations can be properly tested at a final trial.

34. In this case that means, it seems to me, that the risk to be guarded against is the risk referred to concerning emotional abuse of the child by the mother or the potential escalation of her behaviour.

35. Section 60CC of the Act sets out the considerations that the Court must have regard to in determining what is in a child’s best interests, including on an interim basis. As reflected in subsection (2) the primary considerations that apply are (a) the benefit to the child of having a meaningful relationship with both of the child’s parents and (b) the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

1. Subsection (2A) requires that the Court give greater weight to the need to protect the child from harm as referred to as compared to the consideration of the benefit of the child’s meaningful relationship with both parents.

2. Subsection (3) of section 60CC sets out the additional considerations that a Court must have regard to.

3. B at eight years of age is unlikely to have the level of maturity to express a view to which the Court should attach significant weight and Mr E in any event has assessed a number of dynamics as to why it might be that some reservations attach to any expression of views by the child. However, it is to be noted that in Mr E’s report, at least at one point, the child expressed a view to the effect that it was his desire to return to week about time with both parents. I also note that Mr E had the opportunity to observe the child’s interactions with both parents. These lead to the conclusion that the child does not seem to have the reservations the mother would suggest in terms of spending time with the father if he were left to make his own decision about that, uninfluenced by her.

4. It seems that the only limitation on the parental participation in making decisions about long-term issues with respect to the child resides in the parental conflict itself. That is to say there is ample evidence that the mother is a capable parent in terms of providing for all of the child’s physical and other needs, as it seems is the father. Their limitations arise in circumstances where they must participate jointly in those endeavours. Likewise it is that which affects the extent to which they fulfil or fail to fulfil their parental obligations.

5. Whilst I am satisfied that there would be a change for the child in terms of his circumstances in moving into his father’s care pending the trial of these proceedings in April next year, it seems to me the preponderance of considerations, to the limited extent these can be determined on an interim basis, point in that direction, given fundamentally the potential risk to which I have referred.

6. I emphasise to the parties that the Court might reach fundamentally different conclusions as to these considerations as a result of the trial. Significantly, there are only some four months to elapse between now and a trial. The mother submitted that she was willing to engage in any therapy to assist herself to address the concerns raised, including those by inference raised by Mr E. She will have the next four months to do so.

7. I am satisfied that the presumption in s 61DA(1) does not apply in this case in circumstances where there is clear evidence of potential abuse of the child.

8. In any event I am satisfied it would not be in the child’s best interests for there to be a continuation of both parents having equal shared parental responsibility for him; nor would it be in his best interests even on an interim basis for there to be either equal time or substantial and significant time.

9. I am satisfied that at least until a trial, when I reiterate quite different conclusions might be reached, the need to protect the child against the relevant risks referred to is met by the orders as sought by the ICL and as supported by the father.

10. For these reasons I make the orders set out at the commencement of these reasons.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 18 December 2014.

Associate:

Date:  18 December 2014