BRONWELL & BRONWELL
[2018] FamCA 1041
•7 December 2018
FAMILY COURT OF AUSTRALIA
| BRONWELL & BRONWELL | [2018] FamCA 1041 |
| FAMILY LAW – CHILDREN – Where there is one child aged 12 years – Where the child is currently living with the father and spending supervised time with the mother – Where the mother seeks that the child live with her and that she spend five nights per fortnight with the father – Where the father seeks that the child live with him and that she spend gradually increasing time with the mother, initially supervised – Where the mother has inappropriately retained the child twice in the past – Where there is high parental conflict – Where the father alleges that the child has been sexually abused in the mother’s care due to his observation of a number of the child’s behaviours – Where the court expert described the father as pathologising some of the child’s behaviours – Where an order is made for the mother to spend gradually increasing time with the child, without supervision. FAMILY LAW – PARENTAL RESPONSIBILITY – Where the mother seeks that the parents have equal shared parental responsibility for the child and the father seeks that he have sole parental responsibility in respect of health and education – Where the presumption of equal shared parental responsibility applies – Where there is high parental conflict – Where the presumption of equal shared parental responsibility is rebutted – Where it is in the child’s best interest for her father to have sole parental responsibility. |
| Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65D, 65DAA, 65DAC, 67Z |
| Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96 Johnson & Page (2007) FLC 93-344; [2007] FamCA 1235 Leighton & Carey [2010] FamCAFC 94 M v M (1988) 166 CLR 69; [1988] HCA 68 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 |
| APPLICANT: | Mr Bronwell |
| RESPONDENT: | Ms Bronwell |
| INDEPENDENT CHILDREN’S LAWYER: | KD Holmes Solicitors |
| FILE NUMBER: | SYC | 6278 | of | 2015 |
| DATE DELIVERED: | 7 December 2018 |
PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATE: | 12, 13, 14 November 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Longworth |
| SOLICITOR FOR THE APPLICANT: | Gordon & Barry Lawyers Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Dr McConaghy |
| SOLICITOR FOR THE RESPONDENT: | Metta Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Guterres |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | KD Holmes Solicitors |
Orders
All previous parenting Orders are discharged other than Orders 6, 9 and 10 made on 14 November 2018.
Subject to Order 3, the father shall have sole parental responsibility for X (“the child”) born … 2006.
In the exercise of his parental responsibility the father shall:
(a)advise the mother in advance of any decision he proposes to make in the exercise of parental responsibility;
(b)take into account any views expressed by the mother about the proposed decision; and
(c)inform the mother of the decision he makes in the exercise of his parental responsibility.
The child shall live with the father.
The child shall spend time with the mother as agreed between the parties in writing and, failing agreement, as follows:
(a)for a period of six months from the date of the Orders:
(i)from the conclusion of school each Wednesday until the commencement of school Thursday save that during school holidays that time will be from 12.00 pm each Wednesday until 12.00 pm Thursday; and
(ii)from 10.00 am until 5.00 pm each alternate Saturday during school term and during school holidays.
(b)thereafter, until the commencement of the 2020 school year:
(i)during school term, from the conclusion of school each alternate Wednesday until commencement of school on Friday;
(ii)during school holidays, from 12.00 pm each alternate Wednesday until 12.00 pm on Friday; and
(iii) from 10.00 am until 5.00 pm each alternate Saturday during school term and during the school holidays.
(c)from the commencement of the school year in 2020:
(i)during school terms:
·in week one, from the conclusion of school on Wednesday until the commencement of school on Thursday; and
·in week two, from the conclusion of school on Friday until the commencement of school on Monday.
(ii)during each of the term one and term two school holidays, from 12.00 pm on the first Monday of the holidays until 12.00 pm on the following Friday.
(d)from the commencement of term three in 2020 and thereafter:
·during school term, each alternate week from after school Thursday to before school Monday;
·during each of the short school holidays, from 12.00 pm on the first Monday of the holidays until 12.00 pm on the following Friday; and
·during the December/January holidays, in each alternate week from 12.00 pm on Monday until 12.00 pm the following Friday.
Notwithstanding any other Order the child shall:
(a)remain in the care of the father on Father’s Day;
(b)remain in the care of the mother on Mother’s Day;
(c)remain in the care of the mother on Halloween;
(d)spend two hours, from a time agreed between the parents, with the mother on the child’s birthday; and
(d)spend four hours with the mother on Christmas Day from a time agreed between the parents.
In the event that the child is retained by the mother contrary to these Orders or the mother ceases to engage with the family therapy ordered on 14 November 2018, the father is at liberty to apply on 48 hours’ notice for a recovery order and / or to suspend or vary the Orders for the mother’s time, as the case may be.
the child’s counsellor shall continue to be Ms B at C Group (or in the event that Ms B is not available, such person as may be recommended by Ms B and in default of such a recommendation, as selected by the father).
Each party shall follow all reasonable recommendations of Ms B including ensuring the child’s attendance at appointments as directed by Ms B and shall follow up on any referrals made by Ms B.
The Independent Children’s Lawyer is at liberty to provide a copy of these Orders, a copy of the Court’s decision and a copy of the report of Dr D to Ms B.
The child’s paediatrician shall continue to be Dr E (or in the event that Dr E is not available such person as may be recommended by Dr E and in default of such a recommendation, as selected by the father).
Each party shall follow all reasonable recommendations of the child’s paediatrician in relation to medical treatment for the child, including ensuring the child’s attendance at all appointments as directed by the paediatrician and following up on any referrals to allied health professionals made by that paediatrician.
The parties shall authorise any doctor, dentist, therapist or allied health professional upon whom the child attends, to discuss her treatment with the other party and to provide to the other party copies of any test results, letters, or referrals made at the request of the other party and at the other party’s expense.
The parties shall keep the other party informed as to any prescribed medication the child is taking, including any changes to that medication that may occur from time to time.
In the event of a medical emergency involving the child, the parent who has the care of the child shall ensure that:
(a)the other parent shall be notified as soon as practicable;
(b)the other parent shall be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable; and
(c)the other parent is authorised to access information as to any treatment provided, the production of these Orders being sufficient authority to facilitate this Order.
The mother is restrained from presenting the child to any therapist, counsellor, mental health practitioner or paediatrician other than in accordance with these Orders or with the written consent of the father.
Each party shall authorise F School to provide to each party copies of all school reports, newsletters, invitations and all other documents relevant to the progress of the child at the school.
Each party is restrained from denigrating the other parent in the child’s presence or hearing and shall ensure that no other person does so.
Each party shall keep the other informed of his or her residential address, contact telephone numbers (of each party and the child) and email address, and shall advise the other of any change not later than 24 hours after such change.
Except for the case of an emergency, communications between the parties shall be in writing, including email or text message, and the communication shall be limited to matters pertaining to the child.
Within three months after the date of these Orders the father shall pay one half of the Independent Children’s Lawyer’s costs, in the sum of $6,666.50.
Pursuant to s 62B and s 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
Leave is granted to the parties to apply within 28 days, on giving at least seven days’ notice to the Court and each other in relation to the wording of 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 Bronwell & Bronwell 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: SYC6278 of 2015
| Mr Bronwell |
Applicant
And
| Ms Bronwell |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings about X (“the child”) born in 2006. At the time of the hearing she was 12 years of age. Her parents are in dispute about:
·whether parental responsibility should be equally shared or some aspects should lie with the father alone;
·whether the child should mainly live with the father or with the mother; and
·if she lives mainly with the father, what time she should spend with her mother, including whether that time should be supervised for the first six months and/or be day-only for the first 12 months.
Applications
The father sought the following orders:
[Definitions omitted]
…
THE COURT ORDERS
2.the child shall live with the Father.
3.The Father shall have sole responsibility with respect to matters of health and education for the child.
4.When making decisions as to the health and education of the child the father shall have sole parental responsibility and shall before exercising that responsibility notify the mother of his proposal and attempted to consult with her and in the event agreement cannot be reached the father’s decision shall prevail and the father shall notify the mother in writing within 7 days of making his decision.
5.For a period of six months from the date of these orders the child shall spend time with the mother each Saturday or Sunday from 10 am to 4 pm per fortnight.
5a.the child’s time with the mother pursuant to order five shall be supervised by [G Group] or such other organisation as the parties agree to in writing.
6.For a period of six months from the expiry of the period referred to in order 5 the child shall spend time with the mother on one occasion per fortnight from 10 am to 6 pm unsupervised and being on either Saturday or Sunday.
7.For a further period of six months from the expiry of the period referred to in order 6 the child shall spend time with the mother as follows:
a)from 10 am Saturday to 6 pm Sunday each fortnight and
b)from after school Wednesday to commencement of school Thursday each week.
8.The mother and father shall forthwith do all acts and things and sign all documents necessary to engage in Family Therapy.
9.For the purpose of order 8 the family therapy shall be with such therapist as is nominated by the Independent Children’s Lawyer and the Director of Counselling and or Dispute Resolution Coordinator of the Family Court of Australia.
10.It shall be a condition of the child spending time with the mother that the following conditions are fulfilled by the mother and father:
a)The Mother and Father satisfactorily attend and comply with 90% of the counselling sessions recommended by the Family Therapist and that the child attend 90% of the sessions
b)The Mother maintaining her current residential arrangements and keep the Father informed in writing of her residential address
c)Each party maintaining and otherwise complying with the treatment recommended by their respective mental health care practitioners and satisfying the Family Therapist of same
d)The Mother and Father informing the Family Therapist of their attendance at any mental health facility or hospital in respect of mental health care.
11.For the purpose of these orders the Father and Mother shall do all acts and things to ensure the child attend upon the Family Therapist.
12.The Mother and Father shall do all acts and things to ensure that each are provided with the child’s school reports and any medical reports relating to her treatment.
13.The mother and father shall be restrained by injunction from doing or saying anything to denigrate the other in the presence or hearing of the child.
In addition to orders agreed to on 14 November 2018, the mother sought the orders set out in the Case Outline relied on in her case, as follows:
1.That the parties have equal shared parental responsibility for [X] born on … 2015 [sic] (“the child).
2.That the child live with the Respondent Mother.
3.That the child spend time with the Applicant Father as follows:
a.In week 1 on the weekend from after school on Friday until school on Monday morning;
b.In week 2 from after school on Tuesday until before school on Thursday;
c.For two hours on her birthday as agreed between the parties and failing agreement from after school until 5.30 on a school day and from 10.00am until 12.00 noon on a weekend.
d.For one half of the term school holidays as agreed between the parties.
e.From 12noon on Christmas Day until 2 January each year.
4.That notwithstanding any other [sic] the child shall spend time with the mother on Halloween each year and on Mother’s Day each year from 9.00am until the following day.
5.That notwithstanding any other order the child shall spend time with the father on Father’s Day.
The proposal of the Independent Children's Lawyer (“ICL”) was set out in a document submitted during final submissions on 14 November 2018. The ICL sought[1]:
[1] Some numbering errors have been corrected.
[Definitions omitted]
...
BY WAY OF FINAL PARENTING ORDERS, IT IS ORDERED THAT:
1.All previous parenting orders are discharged.
Parental responsibility
2.That subject to order 3, the father shall have sole parental responsibility for the child.
3.That in the exercise of his parental responsibility the father shall:
i.Advise the mother in advance of any decision he proposes to make in the exercise of parental responsibility;
ii.Take into account any views expressed by the mother about the decision;
iii.Inform the mother of the decision he makes in the exercise of his parental responsibility.
Live with
4.[The child] shall live with the father.
Time
5.[The child] shall spend time with the mother as agreed between the parties, in writing, and failing agreement as follows:
5.1.For a period of 6 months from the date of the orders:
5.1.1.During school terms, from the conclusion of school each Wednesday until the commencement of school on Thursday;
5.1.2.during school holiday periods, from 12.00pm each Wednesday until 12.00pm on the following Thursday,
5.1.3.From 10.00am until 5.00pm each alternate Saturday during school term and during the school holidays.
5.2.Thereafter, for a period for six months:
5.2.1.during school term, from the conclusion of school each alternate Wednesday until the commencement of school on each Friday,
5.2.2.during school holidays, from 12.00pm each alternate Wednesday until 12.00pm on the following Friday;
5.2.3.From 10.00am until 5.00pm each alternate Saturday during school term and during the school holidays
5.3.Thereafter, until the commencement of the school year in 2020:
5.3.1.during school term, from the conclusion of school each alternate Wednesday until the commencement of school on each Friday.
5.3.2.during school holidays, from 12.00pm each alternate Wednesday until 12.00pm on the following Friday.
5.3.3.Each alternate weekend from 10.00am on Saturday until 5.00pm on Sunday during school term and during the school holidays.
5.4.From the commencement of the school year in 2020
During school terms
5.4.1.In week 1, from the conclusion of school on Wednesday until the commencement of school on Thursday,
5.4.2.In week 2, from the conclusion of school on Friday until the commencement of school on Monday.
School holidays
5.4.3.In each of the Term 1 and Term 2 school holidays, from 12.00pm on the first Monday of the holidays until 12.00 pm the following Friday.
5.5.Commencing Term 3, 2020:
5.5.1.During school term, each alternate week from after school Thursday to before school Monday;
5.5.2.During each of the short school holidays, from 12.00pm on the first Monday of the holidays until 12.00 pm the following Friday.
5.5.3.During the December/January holidays, in each alternate week from 12.00pm on Monday until 12.00 pm the following Friday.
5.6.Notwithstanding any other order,
5.6.1.[The child] shall remain in the care of the father on Father’s Day,
5.6.2.[The child] shall remain in the care of the mother on Mother’s Day,
5.6.3.[The child] shall remain in the care of the mother on Halloween,
5.6.4.[The child] shall spend two hours with the mother on [the child’s] Birthday;
5.6.5.[The child] shall spend four hours on Christmas Day as agreed.
6.[The child’s] time with the Mother shall be unsupervised.
7.The mother’s time shall be contingent upon her engagement in family therapy.
8.In the event that [the child] is retained by the mother contrary to these orders, the mother’s time shall not progress as set out in orders 5.2, 5.3, 5.4.
[The child’s] counselling
9.[The child’s] counsellor shall be [Ms B] at [C Group] (or in the event that [Ms B] is not available, such person as may be recommended by [Ms B]).
10.Each party shall follow all reasonable recommendations of [Ms B] including ensuring the child’s attendance at appointments as directed by [Ms B] and follow up on any referrals made by [Ms B].
11.The ICL is at liberty to provide a copy of these orders, a copy of the Court’s decision and a copy of the report of [Dr D] to [Ms B].
Medical
12.[The child’s] paediatrician shall remain [Dr E] (or in the event that [Dr E] is not available such person as may be recommended by [Dr E]).
13.Each party shall follow all reasonable recommendations of [Dr E] in relation to medical treatment for the child, including ensuring the child’s attendance at all appointments as directed by [Dr E] and follow up on any referrals to allied health professionals as made by [Dr E].
14.Each party shall authorise any doctor, dentist therapist or allied health professional upon whom the child attends, to discuss the treatment provided to the child with the other party and to provide to the other party copies of any test results, letters, or referrals made at the request of the other party and at the other party’s expense.
15.Each party shall keep the other party informed as to any prescribed medication the child is taking, including of any changes to that medication that may occur from time to time.
16.In the event of a medical emergency involving the child, the parent who has the care of the child shall ensure that:
16.1.The other parent shall be notified as soon as practicable.
16.2.The other parent shall be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable.
16.3.The other parent shall be authorised to access information as to any treatment provided, the production of these Orders being sufficient authority to facilitate this Order
17.Each party is restrained from presenting the child to any therapist, counsellor, mental health practitioner or paediatrician other than in accordance with these orders or otherwise with the written consent of the other party.
Family therapy
18.The parties shall do all things necessary to engage in family therapy with a suitably qualified clinical psychologist and that in respect of family therapy:
18.1.As soon as practicable, and in any event within 14 days, the parties shall agree, in writing, on a therapist to attend for the purpose of family therapy (“the family therapist”) and upon agreement the Father shall make an initial appointment with the family therapist for the earliest available time.
18.2.If the parties are unable to agree on the family therapist, the Father shall contact [H Group] and the first available clinical psychologist available to provide family therapy shall be the family therapist.
18.3.Each party shall ensure their own attendance and facilitate the attendance of the child at any such appointments as may be recommended by the family therapist.
18.4.Each party shall follow all reasonable recommendations of the family therapist and follow up on any referrals made by the family therapist.
18.5.Each party shall bear the costs of his or her individual sessions with the therapist and the father shall bear the costs of the child’s sessions and the costs of joint sessions.
19.Each party shall, in the event that the child makes complaint to that party about the other parent or the other party’s parenting, facilitate the child’s attendance with the family therapist and shall follow the guidance or recommendations of the family therapist in relation to each party’s response to such complaint.
20.That each party is at liberty to provide to his/her own therapist a copy of these orders, a copy of the Court’s decision and a copy of the report of [Dr D].
Education
21.Unless otherwise agreed by the parties in writing, the child shall continue to attend [F School].
22.Each party shall authorise [F School] to provide to each party copies of all school reports, newsletters, invitations and all other documents relevant to the progress of the child at the school.
Injunctions/restraints
23.Each party shall ensure that the child sleeps in her own bed during any period in which the child is in the party’s care.
24.Each party is restrained from denigrating the other parent in the child’s presence or hearing and shall ensure that no other person be allowed to do so in the child’s presence or hearing.
25.Each party shall keep one another informed as to their residential address, contact telephone numbers (of each party and the child), and email address, and shall advise the other of any change within 24 hours of such change.
26.Except for the case of an emergency, the parties shall communicate in writing, including email or text message, and the communications shall be limited to matters pertaining to the child.
27.That the Father pay one half of the Independent Children’s Lawyers costs, such liability of the Father fixed at $6,666.50.
Written evidence
The father relied on:
(a)his Initiating Application filed 22 September 2015;
(b)his affidavit sworn 6 October 2018 and filed 8 October 2018 along with a tender bundle;
(c)his affidavit sworn and filed 9 November 2018;
(d)the affidavit of Ms J sworn 6 October 2018 and filed 8 October 2018 along with a tender bundle; and
(e)the affidavit of Ms J sworn and filed 9 November 2018.
The mother relied on:
(a)her Response to Initiating Application filed 22 October 2015;
(b)her affidavit filed on 9 October 2018;
(c)the affidavit of Ms K filed on 9 October 2018;
(d)the affidavit of Ms L filed on 5 November 2018;
(e)the affidavit of Ms M filed on 11 November 2018 as to paragraphs 122 to 132 inclusive and 134 and 135 only;
(f)the affidavit of Ms N filed 8 November 2018;
(g)the affidavit of Mr O filed 8 November 2018; and
(h)Notice of Child Abuse, Family Violence or Risk of Family Violence handed up in Court on 12 November 2018 and filed on 13 November 2018.
Expert evidence
The expert evidence was a single expert report prepared by Dr D and dated 21 July 2017.
The hearing
The hearing was fixed for three days, commencing 12 November 2018. The parents were both represented, as was the ICL. In order to make best use of Dr D’s attendance in the afternoon of the second day of the trial, the mother’s cross-examination was interposed prior to the completion of the father’s case. That was done with the agreement of the parties. At the conclusion of the hearing on 14 November 2018 for reasons given that day, the following orders were made:
IT IS ORDERED THAT:
1. Leave is granted to the mother to file a Notice of Risk document.
2.Leave is granted for the parties to inspect documents produced by Dr P in these proceedings.
3.Leave is granted for the parties to inspect documents produced by Dr Q and by the Department of Housing.
4.X spend time with her mother, unless the parties otherwise agree in writing, each second Saturday from 10.00 am to 2.00 pm with the first occasion being Saturday 24 November 2018 with the time to be supervised by G Group at the cost of the father and that there be such other time, under such other conditions as the parties agree in writing.
5.Pursuant to s 62B and s 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
6.Orders are made in terms of paragraph 18 of the orders sought by the Independent Children's Lawyer in a document titled “ICL’s Proposed Minute of Order” (Exhibit 14 dated 14 November 2018) as set out hereunder:
18.The parties shall do all things necessary to engage in family therapy with a suitably qualified clinical psychologist and that in respect of family therapy:
18.1As soon as practicable, and in any event within 14 days, the parties shall agree, in writing, on a therapist to attend for the purpose of family therapy (“the family therapist”) and upon agreement the Father shall make an initial appointment with the family therapist for the earliest available time.
18.2If the parties are unable to agree on the family therapist, the Father shall contact [H Group] and the first available clinical psychologist available to provide family therapy shall be the family therapist.
18.3Each party shall ensure their own attendance and facilitate the attendance of the child at any such appointments as may be recommended by the family therapist.
18.4Each party shall follow all reasonable recommendations of the family therapist and follow up on any referrals made by the family therapist.
18.5Each party shall bear the costs of his or her individual sessions with the therapist and the father shall bear the costs of the child’s sessions and the costs of joint sessions.
7.For the purposes of the time order made today and such other time as is agreed in writing, those occasions represent an exception to the injunction on the mother contained in Order 2(d) made on 12 April 2018.
8.Judgment is reserved.
IT IS NOTED THAT:
9.There is no order of the Court that would prevent the mother obtaining, from any school attended by the child, copies of school reports and all printed material and photographs provided by the school to parents subject to her meeting any costs of that provision.
10.The mother is in receipt of a Newstart Allowance and may not be able to fund the process of therapy referred to in these Orders for her own attendance and that when the costs are known the parties may agree or bring the matter back to Court in relation to the issue of managing the cost of the supervision of the mother’s time and the cost of the therapy.
Short history
The father was born in 1977. As at the date of the hearing he was 41 years of age. The mother was born in 1980. As at the date of the hearing she was 38 years of age. The parents commenced living together in 2001, were married 2003 and separated on a final basis in December 2009 or January 2010. A divorce order came into effect in January 2017.
The child is the only child of the marriage. At the time of the hearing she was 12 years of age.
Credibility
The father
The father struggled with the process of cross-examination. He was slow to respond to many questions, gave some tangential answers and his responses were characterised by double negatives. For example, he was asked whether the mother had anything to offer the child and his immediate response was to the effect that the mother is not a racist. The father was asked about whether he has a high level of anxiety in relation to things in his life other than the mother and his response was to the effect: “I can’t say that I have not had anxiety. I cannot say that there have not been other occasions where I have had anxiety with other things in my life.” He reported after the event that the answers given in one passage of his cross-examination may have been unreliable because he felt unwell. All of that contributed to making his evidence difficult to follow.
Dr D considered that the father’s interpretation of certain behaviours he observed in the child did not appear to be accurate or even reasonable assumptions. He considers that those behaviours indicate that the child had been abused or exposed to abuse while in the mother’s care. Dr D described the father as pathologising some of the child’s behaviours. The father maintains those beliefs notwithstanding the opinion of Dr D. However, that is a matter of judgment and perhaps parenting capacity, but not credit. I did not detect any attempt by him to mislead the Court. Albeit related to costs rather than the parenting issues, at one point the father interrupted his counsel to correct something his counsel had said about Ms J’s lack of income. The correction was to the father’s forensic disadvantage but it reflected well on his determination to be a reliable witness.
Ms J
Ms J was a good witness. She appeared to be thoughtful in responding to cross-examination and she was not successfully challenged on any significant issue. Again she has drawn different conclusions from the child’s behaviour to those drawn by the single expert but that does not go to her credit.
The mother
The mother was a poor witness. The effect of the mother’s written evidence[2] was that the father was wrong when he deposed[3] that she had told him that at one time she had been diagnosed with Borderline Personality Disorder. It transpired that there was a reference to such a diagnosis in the records of a Western Australian hospital for a 2004 admission of the mother. Faced with that evidence the mother belatedly conceded in cross-examination that the father’s evidence could have been correct.
[2] Paragraph 25 of the mother’s affidavit filed 22 October 2015.
[3] It must have been in an earlier affidavit but it is repeated in paragraph 32 of the father’s affidavit filed 8 October 2018.
A significant feature of the mother’s trial affidavit is her allegations of family violence against the father. She deposed that the father was “generally not physically abusive towards me” but did not detail any example of physical violence. When asked about that in cross-examination she referred to the father holding her. However, in a 2015 affidavit filed in these proceedings there was no mention of family violence. The mother said something which I interpreted to mean that she was advised not to be critical of the father in the earlier affidavit. In other words it is her evidence that she deliberately misled the Court, on advice. The mother denied that same proposition at another point of her cross-examination. She was asked whether she had deliberately left anything out of her 2015 affidavit and she responded to the effect: “Not on purpose. I think that there were some things that were overlooked in being included in my most recent affidavit but there was nothing left out on purpose.” The problem caused by those facts is obvious.
The mother was asked about her opinion of the relationship between Ms J and the child and she said she did not know. The child and Ms J have lived together for much of the last six years. Either the mother was being misleading about this issue or the child has given no indication to her mother of her relationship with Ms J. Neither interpretation reflects well on the mother. Either she set out to mislead the Court or the child has been unwilling to talk about Ms J to the mother for six years. Even taking the second interpretation and not seeking to impugn her credit on this issue, the mother was not a credible witness.
Supporting witnesses of the mother
The evidence of the supporting witnesses of the mother was only effective to establish that they are aligned with her and at least some of them were and are ill-disposed to the father. In those circumstances, their credit is not a relevant issue.
Dr D
Dr D gave evidence as an expert and her credit is not in question.
Background facts
The mother and father commenced living together in March 2001.
In 2002 the father was diagnosed with depression. He was prescribed anti‑depressant medication and suffered from a number of side effects including bouts of sadness and depression, anxiety and lethargy. On two occasions in 2003 and 2004 the father was hospitalised due to those side effects.
In 2003 the mother was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”).
The parties were married in 2003.
In 2004 the father was diagnosed with ADHD. He began taking dexamphetamine in 2004 and lamotrigine in 2005. As to the latter medication, the husband understands that it can have some mood stabilising effect.
In late 2004 the mother was admitted to a hospital in Western Australia and the hospital records refer to earlier diagnoses of borderline personality disorder, bipolar affective disorder, ADHD and depression.
The child was born in 2006.
It is the mother’s evidence that the parties separated in December 2009 whereas the father contends that they separated on 26 January 2010. Nothing turns on the dispute about the date of separation. Prior to separation the parties had been residing at S Street, Suburb S (“the Suburb S property”).
In early 2010 the mother moved out of the Suburb S property and into a house she shared with one other housemate. Following separation the child lived with the parents in an inconsistent arrangement. The mother asserts that it was an equal time arrangement and the father, that the child spent a greater proportion of time with him.
In June 2010 the father commenced attending upon Dr P, psychiatrist, for management of ADHD. He continues to have appointments, on average, once every six months.
In 2010 the father commenced full-time paid employment on a consistent basis.
In about 2011 the father commenced his relationship with Ms J.
In April 2011 the mother formed a relationship with Mr T.
On 23 March 2012 the mother called the father and asked him to come and collect the child as Mr T had attempted to strangle her on the previous day, while the child was asleep in the next room. Shortly afterwards an Apprehended Domestic Violence Order (“AVO”) was made against Mr T for the protection of the mother and the child.
On 22 June 2012 the mother attended Suburb U Police Station to report that the child had disclosed to workers at her after-school care centre that Mr T had struck her on one occasion several weeks prior. The mother was informed that it was not a strong enough case against Mr T for the police to pursue.
In late August 2012 the father became aware that the child was attending counselling with Ms V, a social worker, at Suburb W Health Centre.
In November 2012 Ms J commenced living with the father and the child.
In June 2013 the child was diagnosed with ADHD by Dr Y, psychiatrist.
In June 2013 the mother moved into a share house with two other people at Z Street, Suburb AA.
In December 2013 the child commenced taking Ritalin as prescribed by Dr Y.
In 2014 the child commenced seeing Dr BB, general practitioner.
In October 2014 the child commenced counselling with Ms CC. The child attended four sessions.
In October 2014 the mother and the child went to the DD Festival. The father has raised concerns that during this period the child was not wearing clothing. The mother denies that this was the case beyond when playing in a sprinkler or in close proximity to their residence.
In December 2014 the mother moved into a bed-sit at the rear of a property at EE Street, Suburb FF.
In January 2015 the father established an account at the child’s school canteen so that she could buy lunch whenever she was hungry.
On 16 March 2015 the child ceased attending upon Ms CC for counselling.
In March 2015 the father moved into a two bedroom apartment at Suburb AA.
In June 2015 the child commenced counselling with Ms HH, psychologist. Ms HH diagnosed the child with both ADHD and an adjustment disorder with anxiety. The mother and father both attended the child’s initial appointment.
On 3 June 2015 the mother took the child to her first appointment with Dr E, paediatrician. The child sees Dr E regularly with appointments anywhere between one and six months apart, as scheduled by Dr E. The father has attended every appointment aside from the initial appointment.
On 24 June 2015 the father called the Department of Family and Community Services (“FACS”) and made a formal notification in relation to the child not having access to food when in her mother’s care.
In 2015 the father commenced counselling with Ms GG at JJ Group. This program was discontinued in mid-November 2017.
In 2015 the child commenced seeing the school counsellor at KK School.
In 2015 the child ceased attending upon Dr BB, general practitioner.
On 12 September 2015 the father became concerned when the child placed her upper thigh over his upper thigh and stroked his leg. On the same date the father was concerned that while at his house the child rolled over onto her back, positioned her legs in the air and commenced to rub her vulva. On 14 September 2015 while walking in Sydney city, the child pulled down her shorts to show Ms J how high the ladder in her stockings went. Later that day the child tried to touch Ms J’s breasts and Ms J told her to stop. The father asked the child whether anyone had ever touched her inappropriately. The child did not respond to the question and began to cry.
On 14 September 2015 the mother attended a performance with the child. The mother did not see the child for the following two months.
On 16 September 2015 Ms J reported to FACS the concerns she had regarding the child’s behaviour over the past week. On the evening of 17 September 2015 the father made a formal statement to Suburb W police. The father thereafter ceased contact between the child and her mother.
On 19 September 2015 the mother attended the father’s house to collect the child as had been their arrangement. She knocked on the father’s door and there was no response. The mother subsequently contacted police and was advised that they could not locate the child. The mother also spoke to FACS and later applied for legal aid.
On 22 September 2015 the father commenced these proceedings.
On 23 October 2015 interim orders were made by consent by Senior Registrar Campbell providing that the child live with the father and spend supervised day time with the mother. An order was made that the father provide lunch for the child when she was spending time with the mother. The mother agreed to supervision, on a without admissions basis.
From 24 December 2015 the child spent four consecutive days with her mother.
In January 2016 Ms HH went on maternity leave and the child’s appointments with her ceased.
On 20 January 2016 interim orders were made by consent by Senior Registrar Campbell for the mother to spend supervised time with the child on alternate weekends from 10.00 am to 6.00 pm on Saturday and Sunday as well as each Wednesday after school. Orders were made for the father to notify the mother of medical treatment for the child and award ceremonies and school events and that there be telephone contact between the child and her mother from 6.30 pm to 7.30 pm on Mondays, Thursdays and Fridays. An order was also made that the father notify the mother if he removes the child from the Sydney Metropolitan area. It was noted that the mother agreed to supervised time so that she could spend time with the child and that she did not consider that supervision was necessary.
On 24 March 2016 the mother attended a Harmony Day celebration at the child’s school. The father’s solicitors later advised the mother that she should not have attended without a supervisor present.
In April 2016 the child commenced seeing Ms LL, nurse, at the Community Outreach Centre at MM Hospital.
On 21 April 2016 the mother took the child to receive vaccinations.
During 2016 the child used the ‘Kids Helpline’ online chat.
On 11 August 2016 the child had a dance performance assembly. It is the mother’s evidence that the father did not inform her of this event.
On 25 August 2016 the father received a phone call from the child’s teacher who informed him that the child had been upset the previous day during a puberty workshop. The following day the father and Ms J met with the school principal. On 29 August 2016 the father and Ms J met with the child’s teachers in relation to the puberty workshop. The father was informed that when the lesson progressed to talking about the male body, drawings of males without clothing and talking about different anatomy, the child became so upset that the teachers had to take her to a separate room.
On 18 September 2016 the father withdrew his consent for Mr M to be a supervisor.
On 21 September 2016 the mother attended upon the child’s school to collect her in accordance with the orders. The father also attended the school and attempted to prevent the mother leaving with the child. Following a discussion, the mother left with the child.
On 2 October 2016 the mother arrived at changeover with a number of supervisors. It is the father’s evidence that the mother would not disclose who would be supervising on that occasion and that he refused to allow the child to go with the mother. It is the mother’s evidence that on this occasion the father slammed the door in her face. The mother contacted the police. Following police attending at the father’s home, the child left with her mother.
On 2 November 2016, at changeover, the father observed the child reach around and hug the mother’s inner thigh putting her hand inside the mother’s skirt. The father deposed that he did not observe the mother or the supervisor taking any action to stop the child doing this.
On 23 November 2016, at changeover, the father observed the child repeatedly pull her head back and bury her face in the mother’s chest when hugging her goodbye. The father deposed that he did not observe the mother or the supervisor stop the child from doing this.
On 26 November 2016, at changeover, the father observed the child bury her face in the mother’s chest when saying goodbye. When the child gave the father a hug to say hello, she put her hand on and squeezed his bottom.
On 21 December 2016 the mother requested that the father approve four additional supervisors. The father refused and requested additional information about the supervisors.
On 14 January 2017 the parties’ divorce took effect.
On 31 January 2017 the father advised the mother that he did not believe Ms K to be an appropriate supervisor. On the father’s evidence he had also informed the mother of this concern on 1 November 2016.
On 2 April 2017 the mother arrived with Ms K to collect the child from the father’s home. The father would not allow the child to go with her mother. The mother called the police. The child was meant to be at a performance by 11.30 am that day. After discussions with the police, the father agreed that the mother could spend time with the child following the performance.
On 23 July 2017 the mother arrived to collect the child from the father’s residence with Ms K as the supervisor. The father would not allow the child to go with the mother. The mother called the police. The mother then came back later that day with a different supervisor and spent time with the child.
On 22 November 2017 the parties attended mediation and a parenting plan was agreed. The child was to live with her father and spend time with her mother unsupervised, on alternate weekends from Saturday 10.00 am to Sunday evening and alternate Wednesdays from 3.00 pm to 7.30 pm. There was a dispute as to whether the child was to be with the mother until 4.00 pm or 6.00 pm on the alternate Sundays.
On 1 December 2017 the father informed the mother that he was taking the child out of the city for a day or two. He did not provide any further information.
On 18 December 2017 orders were made by Registrar Ryan, by consent, that the child would live with the father and spend time with the mother on alternate weekends from 10.00 am Saturday until 4.00 pm Sunday and on alternate Wednesdays from 3.00 pm to 7.30 pm. It was noted that the parties intended that the orders would be reviewed in three months.
In December 2017 the father enrolled the child in F School. In 2018 the child commenced seeing Mr NN who is the counsellor at that school.
In February 2018 the father was referred by Dr P to Ms OO, a psychologist at PP Psychology. The father stopped seeing Ms OO in April 2018.
On 18 February 2018 the father took the child to the emergency department of a hospital as she may have hit her head earlier that day and was vomiting. The parents both attended the hospital and there was a verbal altercation between them.
It is the mother’s evidence that in February 2018 the child disclosed to her that she was “screamed at for hours” by her father and Ms J.
It is the mother’s evidence that on 4 March 2018 the child wrote a letter to the ICL. Later that day, the child called the police while at the mother’s residence. It is the mother’s evidence that the child said to her words to the effect: “I’m worried my Dad is going to really hurt me or even kill me, or you.” The mother then allowed the child to call the police. Later that day the father arrived at the mother’s address to collect the child. There was no response when the father rang the buzzer. Shortly afterwards two police officers arrived and entered the building. The police officers spoke to the child who told them that her father and Ms J were “emotionally and verbally abusive to me” and that she would rather go into foster care than be with her father. After a few minutes the officers came back downstairs and spoke to the father. The father was told that the child had called the police, saying that she was being abused. One of the police officers said that, when asked, the child had said that at her father’s house she was asked to re-wash dishes if she had not cleaned them properly and that she got in trouble for going off with her friend after school rather than coming straight home. Following this, the police officers went back into the building and spoke with the child. The police officers then left the mother’s residence with the child and came down to speak with the father. The police officers then had a conversation with the father and the child where they asked the child to tell her father why she did not wish to go with him and negotiated with the child when would be the next best time for her to see her father. The child agreed to the following Tuesday.
On 5 March 2018 the police attended upon the mother’s house to check on the child. They informed the mother that Ms J had requested the welfare check.
On 7 March 2018 the child attended a school camp. On this date the father requested that the child be returned to his care.
On 8 March 2018 the father filed an Application in a Case for the child to be returned to his care.
On 9 March 2018 the child returned from her school camp.
On 15 March 2018 the mother purchased a mobile phone and plan for the child.
On 20 March 2018 a recovery order was made for the child to be returned to the father’s care by 22 March 2018. The mother’s time with the child was to recommence on 31 March 2018.
On the evening of 20 March 2018 the child called the child protection hotline. Following this conversation the mother was advised by the child protection hotline to take the child to the police.
On 21 March 2018 the mother and the child attended Suburb FF Police Station.
On 22 March 2018 the child returned to her father’s care. It is the mother’s evidence that prior to leaving the mother’s care, the child said to her words to the effect: “If I’m forced to go to my dad I’m thinking of hurting myself or running away.” The mother contacted child protection to inform them of this conversation.
On 22 March 2018 police attended the father’s house to check on the child.
On 23 March 2018 the father received a call from the school principal and school counsellor. They advised him that they believed the child needed longer term counselling care, external to the school counselling.
On 31 March 2018 the child returned to her mother’s care in accordance with the orders. The mother and the child travelled to Region QQ for the weekend.
On the morning of 1 April 2018 the mother took the child to RR Town Police Station. RR Town police arranged for a child abuse detective to come to speak with the child.
On 1 April 2018 at 4.00 pm the father and Ms J attended the mother’s residence at SS Street, Suburb TT, to collect the child. At 4.30 pm the father phoned Suburb TT police as there was no answer at the residence. At 4.50 pm the father received a call from the police. A Senior Sergeant told him that the mother had brought the child into RR Town Police Station that afternoon due to a disclosure by the child that the father brushed against her in the hallway which caused her some pain on her hip. The child returned home with her mother.
On 6 April 2018 the father filed another Application in a Case for the child to be returned to his care.
On 12 April 2018 orders were made by Senior Registrar Campbell for the child to be returned to her father’s care and an order was made that the mother’s time with the child be suspended. The child was to be advised of those orders by the Family Consultant and the ICL. From the time of those orders the child spent no time with her mother until October 2018.
On 13 April 2018 the father received a telephone call from Ms LL, a nurse at the Community Outreach Centre, a mental health unit attached to MM Hospital. Ms LL told the father that the child had been in to see her a week ago and presented as having very high anxiety and was sleep deprived. She said that the unit was not a good place for the long term care of the child and that it could be stressful coming to the unit because the other patients in the waiting rooms can be confronting.
In late April 2018 the child commenced seeing Ms B, a counsellor from C Group, for ongoing weekly sessions.
On 4 June 2018 the mother signed a lease for her current social housing property. This property has two bedrooms.
On 21 June 2018 following a conversation with her father about the child lying to him, the child wrote to the father and Ms J on post-it notes ending with the statement: “I feel like killing myself”.
On 10 September 2018 the mother, through a letter from her solicitors, proposed that the child spend time with her each Tuesday, Thursday and Friday from 3.30 pm to 8.30 pm, supervised by Ms K.
On 25 September 2018 the father proposed that the child spend time with her mother each alternate Saturday or Sunday for four hours supervised by a supervisor from G Group or UU Group. On 27 September 2018 the mother agreed to this proposal and the father agreed to pay the costs of the supervision. The mother’s time resumed in October 2018 under that agreed arrangement.
Expert evidence
The single expert was Dr D. Her qualifications include a Bachelor of Medicine/Bachelor of Surgery obtained in 1977, acceptance to the Royal Australian and New Zealand College of Psychiatrists with completion in 1987 and a Certificate in Child and Family Psychiatry awarded in 1988. Dr D worked in private practice from 1989 to 2015. She has been a single expert in family law matters since 1987.
Dr D prepared a report in this matter dated 21 July 2017.
The legislation
The law to be applied in parenting proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60CA of the Act provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC of the Act identifies the matters that are relevant to the determination of what is in a child’s best interests. Subsection 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in ss 60CC(2) and 60CC(3) respectively.
The sequence of decision making for identifying appropriate parenting orders under Part VII of the Act starts with parental responsibility. Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility. The presumption may not apply but if it does apply, it can be rebutted. If an order will be made for equal shared parental responsibility, s 65DAA of the Act requires that the Court consider making an order for equal time and if that is not ordered, for each party to have substantial and significant time. Findings are made by reference to what is in the child’s best interests.
For the purposes of the determination of these proceedings, I will adopt the following approach:
(a)set out the current arrangements;
(b)set out the proposals, including any options not advanced by a party that the parties addressed or could have addressed;
(c)where possible and relevant, consider and make findings about matters set out in s 60CC;
(d)consider and make findings about parental responsibility, including considering the presumption in s 61DA;
(e)apply s 65DAA if relevant and assess the proposals in light of that provision;
(f)if s 65DAA is not relevant, assess the proposals against the best interests criterion;
(g)consider and make findings about living arrangements; and
(h)make orders.
The Current Arrangements
In October 2018 the child resumed spending time with her mother in accordance with an agreement reached between the parents which meant time each alternate Saturday or Sunday for four hours supervised by a supervisor from G Group or UU Group.
On 14 November 2018 orders were made for the child to spend time with her mother, unless the parties otherwise agree in writing, each second Saturday from 10.00 am to 2.00 pm with the first occasion being Saturday 24 November 2018. The time is to be supervised by G Group at the cost of the father and there is to be such other time and under such other conditions as the parties agree in writing.
The Parties’ Proposals
Relevantly, the father proposed that:
·he have sole parental responsibility with respect of matters of health and education for the child but giving the mother an opportunity for input, and (presumably) that otherwise parental responsibility be shared with the mother;
·the child live with him and spend time with the mother under a graduated program:
ocommencing with six months of day only time supervised by a commercial agency;
oa further six months of day only time, unsupervised;
oa further six months of overnight time each alternate Saturday to Sunday and on each alternate Wednesday to Thursday.
The mother proposed that:
·the parents have equal shared parental responsibility for the child;
·the child live with the mother and spend time with the father:
in a fortnightly cycle during school term:
oin week one on the weekend from after school on Friday until before school on Monday morning;
oin week two from after school Tuesday until before school on Thursday.
in school holidays:
ofor one half of the holidays as agreed between the parties;
oeach year from 12 noon Christmas Day until 2 January.
·as to the other special days, the child would spend time on her birthday with each parent, Mother’s Day and Halloween with the mother each year and Father’s Day with the father.
The ICL proposed that:
·the father have sole parental responsibility for the child but giving the mother an opportunity for input;
·the child live with the father and spend time with the mother as agreed between the parents in writing but failing agreement, provided that the mother engages in family therapy, under a graduated program:
ofor a period of six months:
§from 10.00 am to 5.00 pm each alternate Saturday; and
§from 12.00 pm each Wednesday to 12.00 pm each Thursday save that during school term that will be from after school each Wednesday until before school on Thursday.
ofor a further period of six months:
§from 10.00 am to 5.00 pm each alternate Saturday; and
§from 12.00 pm each alternate Wednesday to 12.00 pm each Friday save that during school term that will be from after school each Wednesday until before school on Friday.
othereafter until the commencement of the 2020 school year:
§from 10.00 am each alternate Saturday to 5.00 pm Sunday; and
§from 12.00 pm each alternate Wednesday to 12.00 pm each Friday save that during school term that will be from after school each Wednesday until before school on Friday.
ofrom the commencement of the 2020 school year:
during school terms:
§in week one, from the conclusion of school on Wednesday until the commencement of school on Thursday; and
§in week two, from the conclusion of school on Friday until the commencement of school on Monday.
during school holidays:
§in each of the holidays following terms one and two, from 12.00 pm on the first Monday of the holidays until 12.00 pm on the following Friday.
ofrom the commencement of term three in 2020:
§during school terms each alternate week from after school Thursday to before school Monday;
§during each of the shorter school holidays, from 12.00 pm on the first Monday of the holidays until 12.00 pm the following Friday; and
§during the December/January holidays, in each alternative week from 12.00 pm on Monday until 12.00 pm the following Friday.
·as to the other special days, the child would spend Mother’s Day and Halloween with the mother each year and Father’s Day with the father, two hours with the mother on the child’s birthday and four hours (presumably with each parent) on Christmas Day.
Therefore, it is agreed that the father will have some parental responsibility, that the child will live for part of each week with each parent and that the father’s time will include overnight time and will be unsupervised.
The range of dispute on the key areas seems to be:
(a)the extent of parental responsibility that the mother will exercise; and
(b)the amount of time that the child should live/spend with each of her parents and whether the mother’s time should be supervised in the first instance.
Section 60CC Considerations
Section 60CC specifies the following considerations:
Primary considerations:
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents
A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.[4] That enquiry is “prospective” which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
[4] McCall & Clark (2009) FLC 93-405.
The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. The expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.[5]
[5] Champness & Hanson (2009) FLC 93-407.
The background facts suggest that the relationships between the child and each of her parents are meaningful. The mother and father were both involved with her life and care during the marriage and although it has been a considerable struggle and there have been some interruptions, the parents have largely persisted with shared care since then. It is likely that the child believes that her relationships with her parents are important. For example, the child told Dr D that she wanted her mother and father (and Ms J) involved in the hypothetical events that she was bullied, scared or broke her leg and needed to go to hospital.
I am satisfied that there is a meaningful relationship between the child and each of her parents.
(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Subsection 60CC(2A) deals with the weight to be given as between the primary considerations:
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
In Leighton & Carey [2010] FamCAFC 94 the Full Court discussed the principles relevant to findings about sexual abuse in the following terms:
Principles relevant to findings of sexual abuse
28.In considering this appeal it is important we refer to the principles relevant to a finding of sexual abuse. In B and B (1993) FLC 92-357, the Full Court reviewed the authorities at length and said at 79,777:
In B and B (1988) FLC 91-957, Baker and Maxwell JJ (with whom Nicholson CJ agreed on this point) considered the role of trial Judges in the Family Court when determining custody and access cases, with particular reference to those cases in which allegations of sexual abuse had been made. The appropriate law to be applied was as set out in the following passage which appears at pages 76,923-76,924:-
‘The Family Court is a civil court in which trial Judges are required to hear and determine cases in the course of which evidence of the parties and their witnesses must be analysed and findings made based upon the civil standard of proof, that is to say, on the balance of probabilities.
It is not appropriate for Judges of the Family Court to conduct cases in which allegations of child sexual abuse have been made as criminal trials which seek to establish the guilt or innocence of one of the parties in relation to allegations of sexual abuse with the consequential result being that if the allegation be proved, access will be suspended whereas if the allegation be not proved then access will be ordered.
In the course of the hearing of a custody or access application, the court may make one of the following findings in relation to an allegation of child abuse:
(a)that the allegation is proved; or
(b)that the allegation is not proved; or
(c)there is insufficient evidence to determine
either (a) or (b).
Any such finding, however, may not necessarily be the determinant factor in the ultimate decision. …’ …
29.In M v M (1988) 166 CLR 69 the High Court said at 76:
…it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds; McKee v. McKee. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. …
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. …
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw. (footnotes omitted)
As to the standard of proof, the Evidence Act 1995 (Cth) now incorporates the effect of Briginshaw[6] in s 140.
[6] Briginshaw v Briginshaw (1938) 60 CLR 336.
Section 140 of the Evidence Act 1995 (Cth) provides:
Civil proceedings: standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject-matter of the proceeding; and
(c)the gravity of the matters alleged.
In M v M (1988) 166 CLR 69 the High Court stated the following in relation to the determination of unacceptable risk at page 78:
…In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In Johnson & Page (2007) FLC 93-344 the Full Court discussed the legal principles in determining the question of unacceptable risk as follows commencing at 81,888:
65. In W and W (Abuse allegations: unacceptable risk) (2005) FLC ¶93-235 the Full Court (Warnick, May and Boland JJ) discussed the issue of “the unacceptable risk test” and in so doing reviewed a number of cases determined after M and M. Their Honours at paragraph 111 noted:
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
66. Two recent decisions of the Full Court have again examined the question of unacceptable risk. In Napier v Hepburn (2006) FLC ¶93-303; (2006) 36 Fam LR 395 the majority (Bryant CJ and Kay J with whom Warnick J agreed in upholding the appeal), by implication, approved passages from Fogarty J's discussion in N and S (1996) FLC ¶92-655 at 82,713 which are as follows:
One of the difficulties which arises in the application of these principles is in seeking to preserve an independent content to the notion of ‘unacceptable risk’. Though the purpose behind the notion is to assist a court in determining what is in the child's best interests, the importance of asking the question separately lies in its specific guidance to courts faced with the difficulties which cases of sexual abuse raise. There is a danger that it will be treated just as an expression which must be ritually used in judgments which involve questions of sexual abuse, but given no substantive meaning or weight. It is easy to say that there is or is not an unacceptable risk of sexual abuse, and so to be seen to be applying the correct legal test. Those words seem sometimes to be used without an appropriate degree of consideration.
Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that courts will have to make some effort to quantify the relevant risk. In S and S, [1993] NZFLR 657] Thomas J addressed the difficulty involved here. At 670 his Honour said:
“Qualifying words such as ‘unacceptable’, ‘real’, ‘serious’ or ‘appreciable’ are merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child.
In the Court of Appeal, [[1994] NZFLR 26] Gallen J, Cooke P and Hardie Boys J agreeing, said at 33-4:
“It is in the assessment of the risk that the difficulties arise. The cases all indicate that it is not ‘any degree of risk’ which is sufficient and various adjectives have been used to indicate the degree of risk which can justify appropriate action on the part of the courts. The four most commonly used adjectives are ‘unacceptable, real, serious or appreciable’. None are particularly helpful and discussion of them tends to degenerate into a matter of semantics. The judge in this case indicated that they were merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child. While at first sight that is a helpful formulation, the same difficulties arise in determining what kind of foundation is necessary and what kind of risk can properly be said to be incompatible with the welfare of the child.
In the end I doubt whether a court can go beyond saying that there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture and need not go as far as the proof which would justify a conviction. From that it will be seen that there are two emphases to be kept in mind. The first is the foundation from which the conclusion may be drawn and the second and by far the more important, is the effect which can rationally be predicted on the child. In considering the whole matter as the judge points out, it is necessary to bear in mind the serious consequences which can occur to a child if he or she is subjected to behaviour which is inappropriate in this area.
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.
In answering the unacceptable risk question the court must undertake a qualitative analysis. For instance, that determination cannot appropriately be made through a process which counts the number of considerations which favour access, and those which militate against access, and then asks on which side the balance falls. Rather, the essential weight must be attached to the magnitude of the harm to which the risk relates. The notion of ‘unacceptable risk’ must be assessed in light of the grave consequences of sexual abuse to a child's development, as well as the effects of future contact with the party. As Thomas J said at 670:
“In assessing whether the risk is unacceptable, the court is not merely evaluating the risk that sexual abuse between the parent and child will occur. Inherent in the risk to the child are the potentially severe and destructive consequences of sexual abuse should it in fact occur. These potentially ruinous consequences do not need repeating. The probability of lasting emotional and psychological damage to the child, generally becoming acute during adolescence, is well-documented.”
Against this background, the resolution of any allegation itself is what the High Court at 12 Fam LR 610; [1988] FLC ¶77-080 termed ‘subservient and ancillary to the court's determination of what is in the best interests of the child’. This recognises that sexual abuse is not a matter which lends itself to convenient characterisation in traditional evidentiary terms, such as may be appropriate for more public and easily detectable offences. Though ‘the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof’, to require such a finding as a prerequisite to satisfaction of the unacceptable risk test would make no allowance for the reality and nature of sexual abuse or the essential task of the court — the promotion of the welfare of the child. The High Court has emphatically rejected such an approach.
In M v Y, [[1994] NZFLR 1] Hardie Boys J (Cooke P and Gallen J agreeing), warned against the danger of allowing a resolution of the allegations to overwhelm the issue at 8:
“It is all too easy — and it is understandable — where an allegation of gross misconduct towards the child is levelled at a parent, for the focus to shift from the welfare of the child to the truth of the allegation. Its truth will doubtless be very important in an assessment of the child's welfare, but it will not always be crucial. But for the accused parent, most particularly if the accusation is false, its refutation may seem essential; while the[81890]accuser, firmly believing it, may see it as essential to sheet it home. Along the way, it is easy to lose sight of the child, innocently caught up in the midst of the strife.”
If the court is able to make a balance of probabilities finding that sexual abuse has taken place, that finding will have a powerful, often decisive, bearing on any contemplated orders. But an inability to be so satisfied will not have such an effect. The court must still ask the ‘unacceptable risk’ question. An example of this is Thomas J's approach at 681-2:
“I do not consider that it has been established on the balance of probabilities having regard to the seriousness of the allegations that Mr S sexually abused his son. But I am not prepared, Temm J's decision in Y v M notwithstanding, to make a finding, applying the same standard of proof, that Mr S did not sexually abuse his son. Whether one likes it or not, the answer to that question remains uncertain, and it is that uncertainty which must be taken into account in determining what is in L's best interests.”
This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk. [Full Court's emphasis]
…
68. In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:
1 The decisive issue is and always remains the best interests of that child.
All other issues are subservient.
2 The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3 Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6 The onus of proof in reaching that conclusion is the ordinary civil standard.
7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
and thereafter expanded some points contained in the summary.
Each of the parents alleges that the other has been responsible for family violence. Save for the violence inflicted on the mother and the child by the mother’s partner Mr T, the allegations are denied.
As to the mother’s allegations, they were made late in the proceedings. Indeed, leave was sought at the commencement of the final hearing for the mother to file a Notice of Child Abuse, Family Violence, or Risk of Family Violence (“the Notice”). That is a form that should have been filed at the time the allegation of violence or abuse was first made. When seeking leave, learned counsel for the mother said something to the effect that the Notice “goes to the change of residence application”. The only sense in which the Notice “goes” to something is that, upon filing, Registry staff are obliged to send it to the State Child Welfare Agency. It is not a document aimed at forensic advantage, or making a point in proceedings. It is a document designed to ensure that allegations of abuse are reported and, where necessary, investigated by the State authorities. The mother’s conduct in this regard can be contrasted with that of the father. His allegations of abuse against the mother were made from the commencement of proceedings in 2015 and, as is required[7], he filed a Notice of Child Abuse, Family Violence or Risk of Family Violence with the Initiating Application on 22 September 2015.
[7] Section 67Z of the Act.
The father deposes that throughout his relationship with the mother, she exhibited extreme mood swings, abusive behaviour and temper outbursts to the child and him. The child was exposed to the violent conduct of the mother’s former partner, Mr T. I gather from the mother’s oral evidence that she would assert that the child was not exposed to the assault on her by Mr T. The effect of her evidence was that the child was asleep and in another room when the assault occurred.
‘Abuse’ and ‘family violence’ are defined terms under the Act. Section 4 of the Act provides:
abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Relevantly, s 4AB provides:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
It is probable that in the period after the assault on the mother, the child was exposed in one or more of the ways described in s 4AB(4).
It is the mother’s evidence that the father was abusive towards her during their cohabitation. She says that he was not awful all the time but that the abuse took the form of emotional, verbal, psychological, economic and financial abuse. She says that he isolated her from friends and social support. The mother says that on one occasion after she had changed clothes before going out, in the presence of the parents’ friends, he said words to her, to the effect: “I don’t know why you bothered, you still look like a slut.” There is no corroboration of that evidence and no explanation is given for the fact that the mother did not call evidence from the witnesses to whom she referred.
The mother deposed that the father was “generally not physically abusive” to her but she did not set out in her affidavit any evidence of any examples of occasions when she was physically abused by him. The mother was asked about that in cross-examination and for the first time in these proceedings she gave evidence about being grabbed by the father. Again she gave no details. Over the objections of the father’s counsel the mother responded to a question in re-examination to provide evidence of abuse and she said something to the effect that on two or three occasions during the marriage the father grabbed her by the shoulders, stood close to her and yelled at her.
Aside from those belated allegations of physical abuse, it is the mother’s case that the non-physical abuse continued after separation and included the father’s use of the court process. The mother contends that the father has abused the child in those same ways, since separation.
The mother says that the father used to tell her what she could and could not wear and assigned domestic tasks to her and yelled at her if they were not all accomplished in time or to his satisfaction. She says that he demanded to know what she was planning to do and would interrogate her about her activities. She says that he would scream in her face and stand over her in an intimidating manner. She says that she would be “walking on eggshells” waiting for him to explode at her when he slammed cupboard doors. She says that he was controlling with money, requiring her to pay most of the household accounts from her funds notwithstanding that he earned more than she did. She says that the father refused her when she requested funds and that he was unreliable in respect of the bills he used to pay. She recalls crying when he screamed at her for buying higher priced groceries, such as more nutritious bread and better quality nappies.
She says that he discouraged her from engaging in paid employment. She says that he pretended to forget promises he had made or agreements they reached, saying words to the effect: “no you’re crazy, that didn’t happen”. If the mother expressed her own vulnerabilities or self-doubts to the father, he said words to the effect: “You’re right, you’re really bad at this, you’re not good enough at anything. You’re fucking useless. You really don’t know what you’re doing do you?” The mother says that even when he was not travelling interstate and overseas for work, the father provided her with little help with the child and that he expressed dismay if asked to care for the child alone, even for a short period.
It is the mother’s evidence that she is not concerned by the child’s behaviour but she is concerned for her. She is very worried for the child while in the father’s care, as the child displays volatile moods and is affected by not seeing or communicating with her mother.
The mother says that the child told her and a police officer at Suburb FF Police Station[8] that the father punched her, grabbed her and put her over his shoulder. The mother said during cross-examination that the child disclosed to her that the father punched, dragged and threw her over his shoulder.
[8] Paragraph 311 of the mother’s affidavit filed 9 October 2018.
It is the mother’s evidence that in March 2018 the child said that she was afraid that the father would kill her and/or had threatened to kill her. This issue was addressed during the course of the mother’s cross-examination. I had difficulty in understanding whether the mother believed that the father is capable of killing the child or that he had threatened to kill her. It was ultimately the mother’s evidence, albeit given without apparent conviction, that she did not believe that the father would kill the child or threaten to do so but that the child’s fear about those things was of great concern to her. However, the mother says she did believe that the father abused the child in the other ways described to her by the child.
The mother’s evidence about family violence inflicted by the father is inconsistent and is likely to be unreliable. In relation to allegations of physical violence against her, the allegations were never specified in the mother’s evidence in chief in these proceedings. They were omitted from her 2015 affidavit, omitted from her interview with Dr D and only hinted at in her trial affidavit. The most likely reason that the allegations were omitted on those occasions is that they are untrue. Even if I was to accept the mother’s explanation for omitting the evidence of violence in the 2015 affidavit (that she did so on advice) no explanation is offered for omitting that evidence from the trial affidavit.
Importantly, the mother’s evidence about the father’s abusive behaviour is inconsistent with the orders she seeks. She asks the Court to order that the child live with the father, unsupervised and overnight, for periods including five nights a fortnight. That is inconsistent with her allegations of his abusive behaviour, let alone the suggestion from her case that at least at some time, she held a genuine fear that the father might hurt the child, punch her, drag her, put her over his shoulder, threaten to kill her or actually kill her.
Lest there be any misunderstanding, physical violence is unacceptable and is usually a criminal act. There is no excuse for it in the day to day business of family life. I accept that victims of abuse can be unreliable witnesses because of the damage done to their self‑esteem by the corrosive impact of demeaning and derogatory behaviour and physical violence itself. Family violence often occurs in private and subject to police reports and medical records, this can leave victims without any corroborating evidence. All of that said, the unreliable evidence, the lack of timely reporting, the inconsistent evidence and the absence of any detailed evidence in chief of the alleged physical violence, cannot alone support a finding of unacceptable risk, not to mention a finding that the violence occurred.
I do not find that the child has been abused or subject to family violence at the hands of the father or in his household. I do not find that there is an unacceptable risk that the child will be exposed to abuse or family violence in the father’s care.
It is the father’s evidence that the child has exhibited behaviours that suggest to him and his partner that she has been sexually abused by the mother or exposed to sexual abuse while in her care. They record that she has partially undressed in public and has hugged and touched the father, Ms J and the mother in an inappropriate manner. They have noticed a difference in the child’s behaviour and her moods and confidence after she has spent time with her mother.
Ms J has expressed concerns because of the child’s eating habits, such as rejecting food and then bingeing on sweets. She has also reported that when something happens with her mother, the child gets clingy, loses confidence, stops trusting people and talks to herself very aggressively.
Dr D opined that some of the interpretations made by the father and Ms J of the child’s behaviour seemed rather extreme and pathologising. For example, the child’s behaviours referred to by the father such as the child emerging naked from a shower cubicle at the swimming pool and pulling her shorts down on a busy street to show Ms J a ladder in her stocking, were referred to by Dr D as the actions of a young girl not being mindful of her surroundings.
Dr D does not share the father’s conclusions. Indeed she is more concerned about the potential for the father’s concerns themselves to lead to something that adversely impacts on the child. Dr D said in cross‑examination something to the effect:
He has this concern. [The child] has certainly had some behaviours that’s concerned him and it’s not inappropriate for him to think about sexual abuse but as long as he is containing himself and… if he needs to talk about it he’s talking about it with his partner or his therapist and he’s not acting out on it. I’m talking about containing, keeping it separate from the child. If he’s managing it okay in that way then I have no real criticism. If that’s what he’s thinking then that’s what he’s thinking. It is what he does with the thinking...
I was not asked to make a finding that the child has been abused by the mother nor that there is an unacceptable risk of that abuse. I will not be making either finding. However, she was abused by Mr T while in the mother’s care.
On her own report, the child feels that she has been living in a battle since her parents separated. That is very likely to have affected her behaviour. In circumstances of distrust between the parents there is a risk that a parent with heightened sensitivity to poor parenting behaviour from the other parent will draw a conclusion from something said or done by a child that is not warranted. Of course, as an overlay to the circumstances of these proceedings, the mental health challenges for the parents and the child are likely to have contributed to the conduct of each of them and their problems in interacting with each other.
Additional considerations
(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The child has reportedly said inconsistent things at different times. The child told Dr D that she did not want to spend the rest of her childhood living only with her father. She misses her mother. It is submitted on behalf of the father that the child’s views should be given diminished weight because of the difficulties she has experienced.
The child’s upbringing has been compromised by her own mental health challenges, by the compromised mental health of her parents and by the significant conflict between them. The child has expressed self-destructive thoughts and it is alleged that she said that she was afraid that her father would kill her and has made a series of inconsistent statements about her time with her parents. Nearly 18 months ago, Dr D observed the child to be a naïve, emotionally immature, somewhat unregulated girl who was a day dreamer. I propose orders that will provide for the child to spend time with each of her parents. Beyond that, I am not aware that the child has expressed clear views about the remaining issues of the times and conditions for her living arrangements. To the extent that the child has expressed views about a return to something like an equal time arrangement, her views will be given little weight because of the factors referred to above.
(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
With all three family members diagnosed with ADHD and experiencing other mental health difficulties, the risks of miscommunication between them must be high. Nevertheless, I have no doubt that the child loves each of her parents and Ms J and that each of the adults loves her.
Dr D commented on the child sitting on her mother’s lap during her observation of mother and daughter, to the effect that it could be seen as regressive behaviour in the child or the mother. It is submitted on behalf of the father that the relationship between mother and daughter has some dysfunction to it. That is said to be seen in the mother’s reaction to the child’s statements about the father and in the judgment made by police at RR Town about the child being coached in her complaints.
The mother was unable to deflect the child from accessing the child protection hotline on one occasion and from contacting NSW police on another. In fact the mother facilitated those contacts and may have even encouraged them. Both instances are worrying. If the mother had the relevant concerns she should have approached the authorities and not left that to the child. Short of a well-founded fear of abuse, the police have enough to do without being called on to perform a parent’s role. Going forward, if the mother cannot calm and redirect the child’s anxieties at 12 years of age, what will occur when she is older?
(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child
There was a significant interruption in the mother’s time with the child after April 2018. The primary responsibility for that rests with the mother. It was her conduct in March and April that caused an interruption in what, since late 2017, had been unsupervised time with the child. I am not satisfied that the mother did everything she could to cause time to be restored in a timely way.
(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
There was a period after separation during which the mother did not have stable accommodation. It is the mother’s evidence that the child’s comments about those times could have misinterpreted the mother encouraging a nutritious diet for the child rather than there being a shortage of food. The child told Dr D that she was not afraid of their housemates when they were in shared accommodation. I note that the mother did not favour a benign interpretation in relation to the child’s alleged report that she was required by the father to eat chillies. Suffice it to say such conduct is inherently unlikely, and again, is inconsistent with the orders the mother seeks.
The issue here is about the mother’s ability to focus on the child’s best interests. If her accommodation was unsafe or inadequate it was for the mother to make alternate arrangements for the child. That would include asking the father to care for the child for additional time, if that was the next best option. The mother did that after T assaulted her.
(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The range of proposals before the Court would have the only significant change being the mother’s proposal for the child to primarily live with her.
Although I am satisfied that the mother dearly loves the child, outside a supervised setting, in recent years, she has not been able to provide the child with stable parenting and to promote her relationship with her father. The likely effect of the arrangement proposed in the mother’s orders is that there would be an interference in the relationship between the father and the child and possibly an enmeshment between mother and daughter, to the child’s ultimate disadvantage.
(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There are no real practical difficulties in the range of orders being considered.
(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
Like their daughter, each of the parents has compromised mental health. This is likely at times to have impaired their decision making about the child. The question is whether one of the parents is better equipped than the other to promote the child’s best interests.
It was submitted on behalf of the ICL that the father lacked parenting capacity in the sense that he failed to appreciate the importance for the child of a relationship with her mother. It was submitted that concern also arises because the father did not take adequate steps in response to the child’s stated threat to kill herself. While there was no apparent link between the threat and the mother, it is submitted that an insightful parent would have identified the child’s misery as being linked to the absence of the mother in her life. He apparently does not appreciate the possible implications of those matters for his relationship with the child.
It was also submitted that the mother has a similar lack of insight. She has no appreciation of the child’s need for a relationship with her father. All of that leaves the child in a terrible situation and as Dr D expressed, notwithstanding her age, the child is a vulnerable child.
In respect of the post-it notes, we only know of them because the father put them into evidence. He gave evidence about his immediate reaction to viewing the notes, running after the child to make sure that she was safe.
The father also has the assistance of Ms J. Since she started to live with the father and the child, she has lived through the very difficult period experienced by the child and her parents.
Dr D assessed the father to be a protective parent, committed to the care of the child. She opined that he has been the more stable, functioning parent since his separation from the mother.
Dr D assessed the mother to be clearly attached to the child and committed to being in her life. She opined, however that she has not always provided the child with the guidance and authoritative care of a parent.
(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The child is 12 years of age, going on 13. She is in Year 7 at F School. The school is 500 metres from the home of the father and Ms J. The child has been exposed to her parents’ behaviour and conflict for many years. She told Dr D that it was a battle. Her conversation with Dr D suggests that she is taking responsibility for her parents. She told Dr D that her mother was not dangerous, indicating thereby that she is aware of her father’s anxieties for her while in her mother’s care.
Dr D saw the child 17 months ago, when she was 11 years of age and, as I have noted, observed her to be a naïve, emotionally immature, somewhat unregulated girl who was a day dreamer. She opined that at 12 years of age, the child was likely to be in the early stages of puberty and that would contribute to erratic emotional behaviour. That has proved to be the case.
The father told Dr D that he left school at year 11 and had mostly worked doing technical work. For the last seven years the father had worked as a technical specialist and in June 2017 he was about to start a new job.
He told Dr D that he originally sought help with depression in 2002 when he was 25. At that time his mood deteriorated and his functioning was impaired by severe depression. He was assessed by two or three psychiatrists over the following two years, had two brief hospitalisations and found the prescribed medication unhelpful. In 2004 he was diagnosed with ADHD and treated with dexamphetamine with life changing improvements as a result. In about 2007 he was also prescribed a mood stabilising drug. His psychiatrist over more than 10 years has been Dr P.
The mother told Dr D that she had worked primarily in a technical occupation but that she had been employed in a wide variety of other fields. When she saw Dr D in June 2017, the mother was working in the service industry and was looking for a contract in the technical field. At the time of the final hearing the mother was not in regular paid employment.
The mother has longstanding hearing loss. The mother told Dr D that she was depressed at 22 years of age and was referred to a mental health clinic. She was provisionally diagnosed with depression, possibly Bipolar Disorder and was treated with various antidepressants and mood stabilisers, which were not helpful. In 2003 a Perth psychiatrist diagnosed her with ADHD and opined that she did not have Bipolar Disorder. She was prescribed dexamphetamine and was reviewed by the psychiatrist and regularly saw a psychologist until she fell pregnant. The depression resolved and her ADHD symptoms improved. In 2005 when planning her pregnancy with the child the mother ceased taking dexamphetamine and had no medication or contact with mental health services for about five years. In 2010 the mother was struggling to focus on studies and a psychiatrist recommenced her on dexamphetamine. In 2012 after being assaulted by Mr T the mother was referred to a Victim’s Services counsellor and commenced five years of counselling with a psychologist. That counselling continued with a new psychologist in 2016 and as at June 2017 the mother was seeing her every two or three weeks. At that time the mother was on yearly reviews with her psychiatrist. She was then taking six tablets of dexamphetamine each day.
As at June 2017 the mother had little contact with her parents but a “pretty good relationship” with her sister.
(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right
This does not apply.
(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
It is the Court’s task to search for good enough parenting and where that is available on either proposal, to identify the better proposal and to justify that decision.
In recent years, the father has been a more stable influence on the child than the mother. The mother cannot be criticised for her lack of stable accommodation or for the violence exhibited by Mr T. At one point during her fragile accommodation the mother contacted the father and placed the child with him. That is the very protective behaviour that is expected of loving parents. The mother said something during her cross-examination to suggest that she may have persisted with her relationship with T for too long. She said that she felt that she was in a relationship with him, that he became ill and she did not want to abandon him. Unfortunately, that left her and the child exposed to his violence. It is likely that there was a fine judgment to be made about that and it is unrealistic and unfair to be overly critical of the mother about that matter. That said, I have absolutely no doubt that if those circumstances arose in the father’s household, the mother would have made no such concession for him.
As is mentioned earlier in these reasons, the child was retained by the mother on two occasions this year: 4 March 2018 and 1 April 2018. Neither occasion was justified. On each occasion the child spoke to NSW Police. On the second occasion, the police decided that the child was being coached in her complaints. Presumably, coached by the mother. There is a catch 22 about these events. If the mother had a genuine concern for the child’s safety then she, and not the child, should have contacted the police. Further, if she held and continues to hold those concerns, the orders she seeks in these proceedings make no sense. If she did not have a genuine concern, she should not have facilitated the child attending on or contacting the police.
That can be contrasted with the father’s behaviour. The father disclosed his concerns from the first day of these proceedings. There was found to be a reasonable basis for his actions in retaining the child. The orders sought by the father made sense of his allegations in the proceedings. Where he thought reference needed to be made to the authorities, he made it and did not leave the child to take action herself.
(3)(j) any family violence involving the child or a member of the child’s family
I have referred to the evidence about this issue.
(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
There was a family violence order issued against the mother’s former partner, Mr T, for the protection of the mother and the child.
(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
None of the range of orders proposed to the Court is likely to minimise the risk of further proceedings.
(3)(m) any other fact or circumstance that the court thinks is relevant
During her oral evidence Dr D expressed concern for the child if her parents are not able to better provide for her. The effect of her evidence was that:
·things have been chaotic for the child;
·she has just started high school and that is a big enough challenge for any child to adapt to;
·there have been more mistrustful and hostile interactions between her parents and the child wants to know what is happening and she is concerned about her parents, particularly her mother;
·for most of the child’s life there has been a lack of stability and now there are the destabilising effects of adolescence and puberty and all the tasks that children have to attend to;
·at this point the child’s prognosis is guarded in the sense that unless something dramatically changes in the next few years and she gets stability and consistent parenting from parents who consistently understand her, contain her and don’t get carried away by what she’s saying and help her to develop her critical thinking capacities, Dr D fears that the child will have a lot of difficulty regulating herself, managing her behaviours and emotions and managing relationships successfully, certainly in her young adulthood.
Parental Responsibility
Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
If no order is made in respect of parental responsibility then the position as to the parents of a child is as follows:
61C Each parent has parental responsibility (subject to court orders)
(1) Each of the parents of a child who is not 18 has parental responsibility for the child.
Note 1:This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.
Note 2: This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.
Note 3:Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.
(2) Subsection (1) has effect despite any changes in the nature of the relationships of the child’s parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re‑marrying.
(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
Note:Section 111CS may affect the attribution of parental responsibility for a child.
An order for shared parental responsibility has the following effect:
65DAC Effect of parenting order that provides for shared parental responsibility
(1)This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long‑term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Presumably that must also apply to equal shared parental responsibility.
Discussion
In the context of this case, s 61DA of the Act requires that I apply a presumption that it is in the child’s best interests for her parents to have equal shared parental responsibility for her unless there are reasonable grounds to believe that the father or the mother or a person who lives with either of them, abused her or engaged in family violence. The mother no longer lives with T. I am not satisfied that either of the parents has abused the child or engaged in family violence. Therefore the presumption does apply.
The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for her parents to have equal shared parental responsibility for the child. Where the presumption does not apply, s 65D(1) requires the Court to make such order with respect to parental responsibility, and/or time to be spent with each of the parties as it “thinks proper”. What is proper is what is in the best interest of the child - determined by reference to s 60CC of the Act.
In her 2017 report Dr D recommended that the parties have shared parental responsibility, with any decisions not finalised during the proceedings to be resolved in family therapy. In her oral evidence at trial, Dr D was asked about that recommendation. She noted that there were reports of the parents co-parenting well in around 2014 and she had hoped that they might return to that situation. However, she said that if it is problematic for the parents to communicate about decisions about the child and that just causes more mistrust, anxiety and uncontained behaviours then that is not helpful to the child. She said that if that was the case now, it might be preferable that just one parent has parental responsibility.
The parties continue to have a very poor relationship and little effective communication with each other. They are suspicious of each other and hyper vigilant about the impact of the other on the child’s welfare. In my view it is not practicable for the parents to share parental responsibility. The presumption is rebutted.
I will order that the father have sole parental responsibility.
Conclusion
The presumption that the parents having equal shared parental responsibility would be in the child’s best interests, does apply but it is rebutted. The proper order is one that places parental responsibility with the father.
Of the parents, the father had displayed better judgment in relation to parental issues. The parties currently have a very poor relationship and little effective communication. I will order that the father have sole parental responsibility but that he consult with the mother. That being the position, there is no need to consider the restrictions proposed by the ICL at paragraphs 9, 12 and 21 of his minute.
Although, not an order sought by either parent, they were on notice of the order I propose, through the ICL’s proposals. I see no advantage in breaking up responsibility for long term decisions as proposed by the father. Of course if it pleases the father to share decision making in relation to some of the decisions he needs to make, he is able to do that at his discretion.
Living Arrangements
In that the Court will not make an order that the parties have equal shared parental responsibility, it is not necessary to give priority to the consideration of any particular pattern of living arrangements.
Although there is a loving relationship between mother and daughter, the s 60CC factors favour an order that has the child living mainly with the father. Ultimately, Dr D recommended that the mother’s time not be supervised. The argument for continuing supervision is that, although there were disputes, the occasions when the mother retained the child occurred when there was no supervision. However, it is not practicable to have the mother’s time supervised indefinitely. At some point the time will need to be unsupervised. The child and the mother have experienced another period of supervision since October 2018. I will not order that the mother’s time be supervised. It will be a matter for the mother whether she can comply with court orders and behave appropriately.
The father and the ICL both proposed a graduated program of time with the mother. The father’s proposed program concludes after 18 months which would leave the child without any guarantee of time with the mother thereafter. The orders will provide that the mother’s time will be as agreed between the parents. In that way the orders reinforce the capacity of the parents to accelerate or slow the rate of increase of the mother’s time and to adjust the regime to better meet the child’s convenience or that of either parent. In default of an agreement I will adopt the ICL’s program but will simplify it by removing some stages. As Dr D pointed out, the parents do not have much time to make the necessary changes to support the child through to her mid and late teens.
Other Orders
The ICL sought that the time be contingent on the mother’s engagement in family therapy and that the time remain at or revert back to one night a week in the event that the mother again retains the child in breach of the Orders. I will not make a self-executing order in respect of those matters. The mother is already required to attend the therapy pursuant to the Orders of 14 November 2018. As to the possibility of a future breach, I will allow the father to bring the matter back quickly if there is a serious breach of the Orders. The mother should be under no illusion about the consequences of again retaining the child.
I will make the orders proposed by the ICL about the child’s counselling. I will make most of the orders proposed by the ICL about the child’s medical treatment. I will change the wording of the order proposed in paragraphs 9, 12 and 17 of the ICL’s minute to allow for the fact that the father has sole parental responsibility for the child’s health. As to the order proposed by the ICL at paragraph 25, I understood the mother’s counsel to say that although earlier opposed to revealing her residential address to the father, the mother would agree to provide her address to him in the future.
The ICL’s Costs
The ICL sought an order for his costs. The mother had an exemption from contributing to those costs, based on a means test. The order sought is for one half of the costs of the ICL, in the sum of $6,666.50 to be paid by the father. The father opposed the order citing the various demands made on his financial resources, including the cost of the supervision of the mother’s time, the greater impost on him for family therapy and the fact that he receives very little child support. Here the application is an appropriate one. The tax payer has funded a lawyer to represent the best interests of the child and there was no suggestion that the role was discharged, including by the counsel who represented the ICL at trial, other than in a professional manner. There is nothing about the conduct of the proceedings that would argue against the making of the order sought. In respect of the father’s capacity to pay, as it happens there will be no order for ongoing supervision and therefore some relief from the financial impost on the father. There were no additional submissions about an extension of time to pay but I will extend that time to three months from the date of the orders.
Conclusion
These proceedings commenced three years ago. Ultimately, the appropriate final orders give the father sole parental responsibility and the child will mainly live with him and have increasing periods of time with the mother.
Leave will be granted to the parties to bring the matter back before me within 28 days, or such further time on which the parties may agree, in relation to the wording of the orders.
I certify that the preceding two-hundred and nine (209) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 7 December 2018.
Associate:
Date: 7 December 2018
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