CALLUM & LECHIARA
[2019] FamCA 257
•24 April 2019
FAMILY COURT OF AUSTRALIA
| CALLUM & LECHIARA | [2019] FamCA 257 |
| FAMILY LAW – CHILDREN – Parenting – Allegations of family violence – Mental Health – Where the mother seeks orders for supervised time – Where the evidence of violence cannot be accepted to the requisite standard – Order made for equal share parental responsibility – Order made for the child to live with the mother and spend unsupervised time with the father. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) |
| Amador & Amador (2009) 43 Fam LR 268 Gianoutsos v Glykis [2006] NSWCCA 137 M v M (1988) 166 CLR 69 MRR v GR (2010) 240 CLR 461 |
| APPLICANT: | Ms Callum |
| RESPONDENT: | Mr Lechiara |
| INDEPENDENT CHILDREN’S LAWYER: | JLM Family Lawyers |
| FILE NUMBER: | SYC | 3130 | of | 2017 |
| DATE DELIVERED: | 24 April 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Stevenson J |
| HEARING DATE: | 21, 22, 23, 24, 25, 29 and 31 January 2019 and 1 February 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Gillies SC |
| SOLICITOR FOR THE APPLICANT: | Kyle Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Rosic |
| SOLICITOR FOR THE RESPONDENT: | Rowlandson & Co. |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Reheby |
| INDEPENDENT CHILDREN’S LAWYER: | JLM Family Lawyers |
Orders
All existing orders in relation to the child B, born … 2013 ("B") are discharged.
2.1 The parties have equal shared parental responsibility for B, provided that they consult in writing as to any change in the child's school or medical treatment as soon as possible and no less than 42 days prior to any such proposed change and if they are unable to agree, then they shall attend a shuttle telephone mediation with a qualified Family Dispute Resolution Practitioner.
2.2Each of the parties has sole responsibility for day-to-day decisions in relation to B's welfare when she is in his or her care pursuant to these orders.
B lives with the mother.
B spend time with the father as follows:
4.1commencing on the first weekend after the making of these Orders, on three consecutive occasions each alternate Saturday from 8.00 am to 6.00 pm and thereafter
4.2on three consecutive occasions each alternate week from the conclusion of school on Friday to 6.00 pm on Saturday and thereafter
4.3during school terms, each alternate weekend from the conclusion of school Friday to 6.00 pm Sunday for a period of three months and thereafter
4.4each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday including during school holidays
until 2020.
4.5commencing in 2020 for one half of all short school holiday periods, being the first week in odd-numbered years and the second week in
even-numbered years
4.6for a period of two weeks commencing at 2.00 pm on Christmas Day in 2019 and each alternate year thereafter
4.7for a period of two weeks commencing at 2.00 pm on 8 January 2021 and each alternate year thereafter
4.8on Father's Day in each year from 6.00 pm on the day preceding Father's Day until the conclusion of the time with the father pursuant to these Orders
4.9from 2.00 pm on Christmas Even until 2.00 pm on Christmas Day in 2019 and each alternate year thereafter
For the purposes of Orders 4.1, 4.2 and 4.3 above the paternal grandmother will be present during B's time with the father and overnight time pursuant to Order 4.2 will occur in the paternal grandmother's home.
6.1 The father will be present with B at all times when she is in the presence of Mr F
6.2The father will ensure that Mr F does not sleep at any premises where B spends overnight time with the father pursuant to these Orders.
If Mother's Day falls on a weekend that the child is in the father's care then changeover will occur at 6.00 pm on the day preceding Mother's Day.
8.1 School holiday time will commence from the conclusion of school on the last day that the child is required to attend school and conclude at the commencement of school on the first day that the child is required to attend school, with changeover to occur on the middle day at 6.00 pm.
8.2If there is an even number of days in the school holiday period then B will remain with the parent who has her care for the additional night.
Changeovers which do not take place at B's school will occur by way of the father or his nominee collecting her from the mother or her nominee at McDonalds Restaurant at Suburb D at the commencement of time pursuant to these Orders and by way of the mother or her nominee collecting her from the father or his nominee at McDonalds Restaurant at Suburb BB at the commencement of time pursuant to these Orders.
10.1 Each party is at liberty to speak with B by telephone each Wednesday between 6.00 pm and 6.30 pm when she is in the other parent's care by way of a mobile telephone number to be provided by the parties to each other via email within 48 hours of the making of these Orders.
10.2The party with care of B will facilitate that time by ensuring that she has access to and answers the phone in the period between 6.00 pm and 6.30 pm.
Each party communicate to the other urgent matters in relation to B by way of text message and non-urgent matters by email.
Each party ensure that the other is kept informed of any serious medical illnesses or hospitalisation of B while she is in his or her care.
Both parties do all things necessary to ensure that any school which B attends is authorised to provide both parents with all information and material usually available to parents.
Within seven days of the date of these Orders each party advise the other and keep the other advised of his and her current address.
Each party is restrained from coming within 200 metres of the other's residence or place of employment without their written consent, or otherwise contacting the other parent except in relation to communication about B pursuant to these Orders.
Each party is restrained from physically disciplining the child or permitting any third party to do so.
The Independent Children's Lawyer will provide a copy of these Orders to B's current psychologist.
The parties ensure that B continues to engage with her current psychologist for a period of one year as and when recommended by the psychologist and that both parents are at liberty to be involved in the child's therapy at the discretion of the psychologist.
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 Callum & Lechiara has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 3130 of 2018
| Ms Callum |
Applicant
And
| Mr Lechiara |
Respondent
And
| Independent Children's Lawyer |
REASONS FOR JUDGMENT
The proceedings
Ms Callum and Mr Lechiara are the parents of B, who was born in 2013 and is currently six years of age. These proceedings concern parenting orders and alteration of property interests. On 25 January 2019 I made final orders by consent for alteration of property interests, thus the determination the competing applications of the parties for parenting orders in relation to B remain.
The applicant mother sought the following orders:
"1.The mother will have sole parental responsibility for the child, [B] born in 2013.
2. [B] will live with the mother.
4.(sic)Subject to Orders 5 and 6 below, the father shall spend time with [B] each alternate Saturday between 10am and 4pm and, in addition if not already spending time with [B] pursuant to this Order:
4.1.on the Saturday immediately before [B’s] birthday each year from 10am until 4pm; and
4.2. on Father’s Day each year from 10am until 4pm.
5.Until [B] is 10 years of age, [B] must be supervised at all times while spending time with the father (“supervision period”) and the following provisions apply:
5.1.the supervision will be provided by one of the following paternal family members or by a professional child contact supervision service at the father’s expense (“the supervisor”):
5.1.1. the paternal grandmother, [Ms Lechiara Snr],
5.1.2. the paternal grandfather [Mr Lechiara Snr],
5.1.3. the paternal aunt, [Ms V],
5.1.4. the paternal uncle, [Mr X], or
5.1.5. the paternal uncle’s wife, [Ms W].
5.2.If the supervisor is to be a professional child contact supervision service, the father must cause the supervisor to contact the mother not less than 48 hours prior to the time spent to advise the mother of the name and mobile number for the person who will be supervising [B] and make any necessary arrangements for changeover.
6.The father must not allow [B] to come into contact with the father’s son, [Mr F].
Changeover
7.The location for changeover will be the playground at McDonalds in [Suburb D], and following provisions apply to changeover:
7.1.During the period of supervision, the mother must cause [B] to be delivered to the supervisor at the changeover location or other place as may be agreed between the mother and the supervisor.
7.2.After the period of supervision, the mother must cause [B] to be delivered to the father or one of the paternal family members listed at 5.1 above at the changeover location.
7.3.During the period of supervision, the father must not approach within 150 meters of the changeover location until at least 5 minutes after the mother has delivered [B] to the supervisor.
8.If the mother wishes to take [B] away on holiday during a two-week school holiday period when [B] would otherwise be spending the middle Saturday of the holiday period with the father pursuant to paragraph 4 above, the mother may do so provided:
8.1.The mother facilitates [B] spending time with the father on the first Saturday following the end of school term as
make-up time; and8.2.The mother gives the father at least 4 weeks’ notice prior to the commencement of the holiday period, such notice to be provided to the paternal grandmother.
9. The father is restrained by injunction from:
9.1.Contacting, approaching, or stalking the mother, or attending within 100 metres of the mother’s place of residence, employment, or education or attempting to contact or approach the mother by any means except indirectly through the Supervisor or through a legal representative;
9.2.contacting or attempting to contact or approach [B], except as is permitted by these Orders;
9.3.entering or remaining in any place of residence, employment, or education of the mother; and
9.4.entering or remaining within 100 metres of the school attended by [B], unless expressly permitted by Family Court order.
10.It is noted that the injunction in order 9 is an injunction for the personal protection of the mother and child, and as such the police have a power of arrest pursuant to s.68C of the Family Law Act 1975."
Ultimately, the mother did not press her application for orders for overseas travel and a change to B's name.
Initially, the respondent father sought the following orders:
"1.That the parenting orders made by this Honourable Court on 21 May, 2018 relating to the child [B] born … 2013 (“the child”) be discharged.
2.That the parties have equal shared parental responsibility of the child.
3.That the child live with the [mother].
4.That the child spend time with the [father] –
4.1. during school terms:-
4.1.1.on two (2) occasions from 10:00am to 4:00pm each alternate Saturday commencing the first Saturday from the date of these Orders;
4.1.2.thereafter, on six (6) occasions for one (1) night per fortnight from 9:00am Saturday to 6:00pm the following Sunday each alternate weekend commencing the fifth Saturday from the date of these Orders;
4.1.3.thereafter, on four (4) occasions for two (2) nights per fortnight from after school Friday or 3:30pm to 6:00pm the following Sunday each alternate weekend commencing the seventeenth Friday from the date of these Orders;
4.1.4.thereafter, from the conclusion of school Friday or 3:30pm to the commencement of school the following Monday and in each alternate week thereafter commencing the twenty-fifth Friday from the date of these Orders.
4.2for one half of all of the New South Wales school holiday periods as agreed between the parties and failing agreement for the first half of the holidays in years ending in even numbers and for the second half of the holidays in years ending in odd numbers and further the changeover period is to occur at 3.00pm on the day that is half way through the holiday period provided however that should there be two middle days then such period is to conclude at 3.00pm on the second of the two middle days;
4.3that for the purposes of these Orders, the first day of the gazetted school holiday period will be the day immediately after the last day of the school term in which the child is required to attend and the last day of the gazetted school holiday period will be the day immediately preceding the first day of the next school term in which the child is to attend;
4.4on the child’s birthday as agreed between the parties and failing agreement from 3.00pm to 6:00pm if the child’s birthday falls on a school day however if the child’s birthday falls on a non-school day then from 1.00pm until 5.00pm;
4.5from 9:00am on the Saturday preceding Father’s Day until 5:00pm on Father’s Day if Father’s Day falls on a day in which the child is living with the applicant;
4.6such other time as may be agreed between the parties in writing.
5.The child’s time with the [mother] shall be suspended and the child shall live with the [father] on the child’s birthday if the child is not already living with him, as agreed between the parties and failing agreement from 3.00pm to 6:00pm if the child’s birthday falls on a school day however if the child’s birthday falls on a non-school day then from 1.00pm until 5.00pm.
6.The child shall spend time with the [mother] from 9.00am on 24 December until midday on 25 December in each alternate year commencing 2020 and from midday on 25 December until 5.00pm on 26 December in each alternate year commencing 2019.
7.The child shall spend time with the [father] from 9.00am on 24 December until midday on 25 December in each alternate year commencing 2019 and from midday on 25 December until 5.00pm on 26 December in each alternate year commencing 2020.
8.The child’s time with the [father] shall be suspended and the child will spend time with the applicant from 9:00am the Saturday before Mother’s Day until 5:00pm on Mother’s Day if Mother’s Day falls on a weekend when the child would be living with the [father].
9.That the parent not spending time with/living with the child be at liberty to contact the child by telephone at reasonable times and with reasonable frequency and for the purposes of each parent communicating with the child by telephone, the other parent shall ensure the child has privacy and shall not be permitted to be in the same room during such telephone times.
10.Neither party shall denigrate the other party nor permit any third person to do so in the presence or hearing of the child.
11.That without admission, the respondent ensure that the child is not left alone with [Mr F].
12.Each party shall keep the other advised at all times of their residential address and residential telephone number and any emergency contact number.
13.Each party shall ensure that the child is transported to any sporting or cultural activity and any training or tuition in which the parties have agreed in writing that the child to participate in.
14.For the purposes of implementing Order 4 and unless changeover occurs at the child’s school, the changeover point be McDonalds in [Suburb CC].
15.Each party shall ensure that the other is promptly advised of any medical emergency or significant illness suffered by the child including sufficient details to enable both parties to be consulted with respect to and be fully advised regarding such illness or condition and any treatment recommended or provided and both parties shall be at liberty to visit the child if hospitalised.
16.Each party shall do all things and sign all documents necessary to authorise and direct any school attended by the child to discuss with the other party the child’s school attendance and progress, furnish reports, photos and copies of any correspondence, newsletter or other written material produced by the school and distributed to carers and both parties shall be entitled to fully participate in all and any activities at the school or connected with the school.
17.Neither party shall change the child’s place of residence without giving the other party written notice not less than 21 days beforehand of the proposed change.
18.Neither party shall relocate the child outside of New South Wales without the prior written consent of the other.
19.That both parties will ensure that the child has a valid passport, and to facilitate this Order, both parties sign any documents necessary to obtain an Australian Passport or renewal thereof for the child and the cost of the passport application or renewal be borne equally by the parties.
20.That in the event that either the [mother] or the [father] propose to travel overseas with the child for any period, then at least two (2) months written notice must be given to the other party, providing the destinations, mode of transport, flight numbers and times of departure and return, relevant contact telephone number(s) and addresses of where the child and/or the party will be residing for the duration of the proposed travel.
21.That unless either party is travelling with the child outside the Commonwealth of Australia, the child’s passport remain in the custody and control of the respondent.
22.That the respondent shall ensure that the child’s passport is delivered to the applicant at least 14 days prior to the applicant travelling overseas with the child.
23.That in the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, then the Registrar of the Court shall be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the defaulting party and to do all things necessary to give validity to such deed, document or instrument upon receipt of Affidavit evidence of such refusal or failure."
The Independent Children's Lawyer ("the ICL") proposed the following orders:
"1.That the parents have equal shared parental responsibility for the child [B] born … 2013 subject to the following:-
a.Education and Medical – that the parties consult in writing as to any change in the child’s school or medical treatment required as soon as possible and no less than 42 days prior to any proposed change or medical treatment required and if the parents are unable to agree, then the parents shall attend a shuttle telephone mediation with a qualified Family Dispute Resolution Practitioner.
2.That the child live with the mother.
3.That the child spend time with the father as follows:-
a.Commencing on the first Saturday after the making of these Orders, on three consecutive occasions each alternate Saturday from 8am to 6pm; and thereafter:-
b.On three consecutive occasions each alternate week from after school Friday to 6pm Saturday; and thereafter:-
c.During school terms, each alternate weekend from after school Friday to 6pm Sunday for a period of three months.
d.Each alternate weekend from after school Friday to before school Monday including school holidays.
e.That Order 3 d be suspended in the school holiday periods from 2020.
f.Commencing in the 2020 term one school holiday period and thereafter for half of all term school holiday periods in the first week in odd numbered years and in the second week in even numbered years.
g.From 2pm Christmas Eve to 2pm Christmas Day in 2019 and each alternate year thereafter.
h.From 2pm Christmas Day in 2020 for a period of two weeks and each alternate year thereafter;
i.From 2pm on 8 January 2021 for two weeks and each alternate year thereafter;
j.On Father’s Day in each year from 6pm the day proceeding Father’s Day until the conclusion of the Father’s time pursuant to these Orders.
4.For the purposes of Orders 3 a, b and c above the paternal grandmother shall be present during the father’s time with the child and overnight time pursuant to Order 3 b shall occur in the paternal grandmother’s home.
5.That the father be present with the child at all times the child is in the presence of [Mr F] and the father shall ensure that [Mr F] does not sleep at the home during any overnight time the child spends with the father pursuant to these Orders.
6.If Mother’s Day falls on a weekend that the child is in the father’s care then changeover shall occur at 6pm on the day proceeding Mother’s Day.
7.That for the purposes of the term school holiday periods, the school holiday shall commence from after school on the last day that the child is required to attend school and shall conclude before school on the first day that the child is required to attend school and changeover shall occur on the middle day at 6pm and should there be an even number of days in the school holiday period then the parent who has the child in their care for the first week shall have the extra night.
8.That where changeover does not occur at the child’s school then changeover shall occur by way of the father or his nominee collecting the child from the mother or her nominee at McDonalds Restaurant [Suburb D] at the commencement of his time with the child pursuant to these Orders and by way of the mother or her nominee collecting the child from the father or his nominee at McDonalds [Suburb BB] at the commencement of her time with the child pursuant to these Orders.
9.That each parent be at liberty to speak with the child by telephone each Wednesday between 6pm and 6.30pm when the child is in the other parent’s care by way of telephoning the child on a mobile telephone number to be provided by the parties to each other via email within 48 hours of the making of these orders and that the parent with care of the child shall facilitate that time by ensuring that the child has access to the mobile phone, answers the phone in the period between 6.pm and 6.30pm and that the phone is charged and in range.
10.That the parties communicate urgent matters in relation to the child by way of text message and non-urgent matters in relation to the child by email.
11.The parents shall ensure that the other parent is kept informed of any serious medical illnesses or problems or hospitalisation of the child while in their care.
12.That both parents will do all things necessary to ensure that any school the child attends is authorised to provide both parents with all information and material usually available to parents.
13.That within 7 days of the date of these Orders, each parent shall advise the other parent and keep the other parent advised of their current address and each parent shall advise the other parent of any changes to those details within 48 hours of any change to those details occurring.
14.That the parents be restrained from coming within 200 metres of the other parent’s residence or place of employment without their written consent, or otherwise contacting the other parent except in relation to communication about the child pursuant to these Orders.
15.That the parents be restrained from physically disciplining the child or permitting any third party to do so.
16.That the parents be restrained from consuming alcohol beyond the legal driving limit at any time the child is in their care.
17.That the parents are restrained from denigrating the other parent or a member of the child’s family in the presence or hearing of the child and that the parents will do all things necessary to ensure that the child is not in the presence of any third party who seeks to denigrate the child’s other parent or a member of the child’s family.
18.That the Independent Children’s Lawyer provide a copy of these Orders to the child’s current psychologist and the parents ensure that the child continue to engage with her current psychologist for a period of one year as and when recommended by the psychologist and that both parents be at liberty to be involved in the child’s therapy at the discretion of the psychologist."
At the end of the trial, counsel for the father indicated that he consented to all orders proposed by the ICL.
The ICL submitted a calculation of her costs of the proceedings and indicated that the parties had been put on notice of "an application" on 9 January 2019. The Minute of Orders proposed by the ICL contained no reference to an order for payment of these costs and no party made any submissions in relation to this issue. For these reasons I will take the question of the costs of the ICL no further.
The mother contended that B would be placed at an unacceptable risk of harm in the unsupervised care of the father. Her counsel summarised the matters which were alleged to constitute such an unacceptable risk as follows in her Outline of Case document:
● The father's coercive and controlling personality style
●The father's coercive and controlling behaviour towards the mother during their relationship.
●The father's verbal abuse of the mother during the course of their relationship including in the presence of the child.
●The father's physical abuse of the mother during the course of their relationship including whilst the mother was holding the child.
●The predatory and sexual behaviour displayed by the father's son from a former relationship ([Mr F]) with [B].
●The father's refusal to intervene in [Mr F's] behaviours towards [B] and her mother.
●The father's repeated sexual abuse of the mother during the course of the relationship.
●The father's manipulative behaviour towards others, including [B].
●The father's demonstrated inability to insulate his children from ill will and a negative view of a former spouse as evidenced by his behaviour towards his first wife."
Counsel for the father summarised the parenting issues as follows:
·the mother's serious allegations of family violence, including rape or sexual assault, by the father which are uncorroborated and denied by him
·the mother's allegations that the father's son Mr F subjected B to inappropriate sexual conduct
·the mother's "history of complex mental health needs" with incidents of self-harm and two suicide attempts
·concerns as to whether the mother has the capacity to facilitate a meaningful relationship between the father and the child, which arise from her allegations and entrenched position
·whether B should continue to spend time with her half-brother Mr F, under the supervision of the father.
The ICL summarised the parenting issues as follows in her Outline of Case document:
"7.The mother alleges the father was a perpetrator of family violence towards her and that he sexually assaulted her on several occasions during the marriage. It is the mother's case that as a result of her experiences with the father, she is suffering from PTSD, the impact of this being that her distress/symptoms are triggered by the father including knowledge that [B] might spend unsupervised time with the father. The mother's case is not that the father poses a risk of sexual harm to the child but a risk of psychological harm as he may play "mind games".
8.The father denies the mother's allegations. He alleges the mother has perpetrated family violence upon him, unilaterally relocated with [B] post separation and has refused to facilitate the relationship between him and [B]. The father raises concerns about the mother's management of her mental health and the impact that has on her parenting capacity and [B]."
Background
The father and the mother, who are aged 45 and 32 respectively, met at DD Resort in 2008 in the course of their employment. The father and his first wife, Ms G, and the mother were employed there.
The father and Ms G separated in 2008, when she left DD Resort with their two children F and H, who were born in 2000 and in 2003 respectively. Ms G, F and H moved into a home at Suburb K in 2009.
In late 2008 parties left DD Resort and lived with the paternal grandparents for two months until they moved into rented accommodation at Suburb K. They lived in these premises for approximately six years and then moved into a property at Suburb BB which they built in 2015.
The mother alleged that the father first subjected her to an act of family violence in 2009. She contended that he demanded that she show him text messages on her phone then accused her of "cheating on him". The father denied these allegations.
The mother alleged that, commencing in approximately 2009, the father demanded sex from her if she wished to see her friends or family. The father denied these allegations. He also denied the mother's contention that he had a habit of saying to her "You have made me stressed. You need to make me feel better. I need to feel loved."
On 8 December 2009 the father and Ms G consented to final parenting orders in relation to F and H. These orders provided that the boys spend five nights per fortnight and half of all school holidays with the father and otherwise live with their mother.
The mother alleged that the father forced her to submit to anal sex against her will, from 2010 until the end of the marriage. The father denied these allegations and maintained that all sexual contact between the parties was consensual throughout the relationship.
The mother alleged that the father woke her at night by sticking his fingers in her vagina, at times when she was wearing underpants and shorts. The father denied this allegation.
The mother alleged that the father sexually assaulted her after a work function in late 2010. The mother contended that she told the father to stop but he continued despite her protestations and objections. The father denied these allegations.
The mother alleged that the father coerced her into sex in exchange for his permission for her to attend a work Christmas party in 2010. She alleged further that the father accused her of having sex with a person in a toilet at the Christmas party. The mother alleged also that the father forbade her to drink alcohol at the party. The father denied all of these allegations.
The parties became engaged on 25 December 2010. The mother asked her friend Ms HH to organise a "hen's night" for her following the engagement. The mother deposed that Ms HH organised a cruise on Sydney Harbour staffed by topless waiters. The mother alleged that the father demanded that she cancel this event and said inter alia "choose between [Ms HH] and me". The father conceded that he "disapproved" of the proposed cruise.
The mother alleged that F said to a friend "imagine how tight she is", in relation to B's vagina, in approximately February 2013. B was about five weeks old and F was aged 13 at this time. The father said that he "would have reprimanded F on the spot" if he had heard this alleged comment.
The mother alleged that the father held H on the ground in an arm lock during a camping trip in 2013. The father conceded that he held H in an arm lock, in circumstances where the boy was angry and throwing and smashing objects. The father maintained "I did not act in anger".
In 2014 the mother underwent surgery and was advised to refrain from sex for six weeks. The mother alleged that the father asked for sex precisely six weeks after the surgery and she agreed on condition that he would stop if she felt pain. The mother alleged that the father continued despite her saying that she was experiencing pain. The father denied that any such an event took place.
The mother alleged that in 2014 F either was expelled from or asked to leave his school because he had photos of a naked 14 year old girl on his telephone. The mother alleged that F had "two secret vault holders on his phone with approximately 40 images of women's vaginas and breasts".
The father deposed that he and Ms G co-operated with each other to deal with this situation involving their son F. According to the father, a female peer of F sent a photo of herself to him and he shared the image with other students. The father maintained that he and F attended a police station and an officer "warned F of the dangers of showing third persons messages or photos of a private nature that had been sent to him". This account is consistent with a COPS entry dated 28 August 2014. The father deposed that he and Ms G discussed future schooling arrangements for Mr F with the principal of his school. The principal recommended a change in school and assisted the father and Ms G to enrol F in JJ School.
In August 2012 the mother began to consult Dr P, a clinical psychologist, whom she saw until December 2014. The notes for Dr P's initial consultation on 28 August 2012 read in part as follows:
"PRESENTING PROBLEMS:
1. "I hold everything in and it is always about the kids or his ex wife.."
2. "I do have anger issues for sure ... Always have had .."
3. Defacto said to be hurting children .. [Mr Lechiara] said to have reported to Police .. I suggested if there were concerns DOCS should be notified.
4. Taking Lexapro 20mg ... Used to be a bit of a drinker too which seemed to help .. it was great ...
HISTORY OF PRESENTING PROBLEMS:
● Last 10 years I have been [in allied health] .. Now in regular work ..
● When I was a lot younger I suffered from depression and anxiety .. I am 110% better ..
● Met [Mr Lechiara] 4y ago .. they had be separated .. (two children F and H 9 and 12 years now)
● Ex doesn't like me [Ms G] .. She treats her kids like crap but her boys still love her to death ...
● "I'm starting to resent the boys now ... We have them every second weekend for five nights .. Husband gives so much child support .. My husband doesn't understand me .. he just dismissed it ..."
● H I get along with fine
●F is 12 and going on 16y ... "He manipulates ..." He speaks to a counsellor ..
●Finds it difficult to tell husband .. If I forget to take my medicine or working too hard these feelings come out..." I can't keep it in anymore."
In May 2015 the mother began to see a psychiatrist, Dr T, whom she consulted until November 2016. In a report to her general practitioner dated 25 June 2015 Dr T opined as follows:
"...
[Ms Callum] has been depressed from the age of about 13 or 14. There are chronic feelings of emptiness, suicidal ideas, and at times she would scratch at herself. She complained of numbness, inability to sleep, needing to distract herself by being constantly busy. She is plagued by a lack of confidence and for a time she self-medicated with caffeine to try to overcome restlessness and taken alcohol to overcome social anxieties. Irritability is prominent, and she describes herself as having "underlying anger" which I suspect is just a way of expressing the fact that she is very ready to erupt. Problems with staying on track persists into adult life.
...
IMPRESSION: The principal diagnosis is ADHD that has been present from childhood and has persisted into adult life. I think that many people with this disorder are prone to secondary depressions and that is the case here and sometimes these secondary depressions can be quite severe ..."
On 30 August 2016 the mother was referred by Victims Services New South Wales to Ms O, a psychologist, for counselling. In a report dated 13 October 2016 to Victims Services Ms O stated inter alia:
"[Ms Callum] reported on being in [a] domestic violence relationship for seven years stating that there was verbal, physical, and sexual abuse, and manipulation from her husband. [Ms Callum] reported that the violence escalated and on Australia Day this year that police were called due to her husband pushing her onto a coffee table. [Ms Callum] reported that her husband would make counterclaims about [Ms Callum]. [Ms Callum] reported leaving the relationship to stay with her parents however that her husband continued to "harass" her there and therefore she gained support from staying home leaving violence and was able to relocate away from the area. [Ms Callum] took her three year old daughter with her and [Ms Callum] has engaged a solicitor to apply for full custody of their daughter and to complete a divorce."
Ms O is a supporter of the mother, to the extent that she sat beside her in court throughout the day on which the court’s single expert Dr U gave her oral evidence. As set out below Dr U outlined the dangers which may arise when a therapist assumes a forensic role, as Ms O appears to have done in relation to the mother.
The mother relied upon an affidavit affirmed on 20 November 2018 and a report dated 12 November 2018 by Ms O. Pursuant to objections taken by counsel for the father, I struck out certain passages in her report. In my view, Ms O exceeded the parameters of her role as a treating health professional in this excluded material and ventured into a forensic role.
An incident took place on 26 January 2016, which resulted in police officers attending the parties' home. During this event, the mother punched a hole in a wall. The parties engaged in a physical tussle over which of them would have physical possession of B. A COPS entry noted "police observed [Ms LM] to be well intoxicated". The mother disagreed that she was "well intoxicated" but conceded that she had consumed seven alcoholic drinks on that day.
In her trial affidavit the mother made a generalised allegation that the father hit B "on many occasions". She gave no particulars of these allegations, such as dates, times and places, other than in relation to one event during Easter 2016.
In her affidavit of 3 May 2017 the mother alleged that the father pulled B's pants down and hit her four or five times with sufficient force to leave welt marks. The mother deposed that this incident occurred on Easter Saturday 2016 but corrected this date to Good Friday 2016 in her oral evidence.
The mother took photos of these injuries (Exhibit 6) but sought no medical assistance for B. She reported the incident to police on 5 August 2016, some two months after the alleged incident and five weeks after the parties' separation.
In his trial affidavit the father denied that he pulled down B's pants and hit her "very hard". In his oral evidence, however, he conceded "I may have caused the welts."
The mother alleged that "in around April 2016" she saw F place his hand over B's vagina and rub her through her clothing. She alleged that this incident occurred in a car when she, the father, F, H and B returned to the family home.
The mother deposed that F said "I'm trying to help undo her seatbelt" when she asked him for an explanation. In cross-examination the mother said that F had unbuckled B's seatbelt previously and helped her out of the car.
The father deposed that the mother raised no concerns with him at the time of this alleged incident, of which he had no knowledge until he read her first affidavit. The father denied that the parties had any conversation about F's alleged conduct toward B on the relevant day.
The mother alleged that "in or around early May 2016" F sat B on his lap and she saw him "wiggling and moving under her". The mother deposed that she said "What are you doing?" and F replied "She's on my balls". This incident allegedly occurred at the home of the paternal grandparents. The father deposed that he had no knowledge of this incident until he read the mother's first affidavit.
The mother alleged that the father sexually assaulted her i after she returned home from a soccer match. She claimed that he had sex with her despite her saying "Please don't" and "No". The mother deposed that she
"felt an overwhelming pain her my ovaries".
The mother deposed that she contacted a Lifeline counsellor by internet "on or about 19 June 2016". She indicated online that she wished to leave the relationship but made no reference to any sexual assaults or coercion on the part of the father. She wrote "he has pushed me twice in two arguments and police were called once".
The mother spent 21 and 22 June 2016 in hospital and underwent gynaecological surgery. Her surgeon's report to a general practitioner referred to "chronic pelvic pain".
The parties separated on 1 July 2016. The mother left the family home and took B to stay with her parents in L Town in the LL Region of New South Wales. On 1 August 2016 the mother relocated with B to the Z Region. The father was not consulted by the mother about B's relocation to the Z Region or choice of school.
Between separation and the interim orders of 13 July 2017 B spent time with the father on one occasion only for a period of four hours. On 24 July 2016 they spent four hours together at KK Town on the LL Region.
In September 2016 the mother arranged for B to attend upon a child psychologist, Ms RR of the MM Clinic, on a fortnightly basis. These appointments now take place every six weeks.
A General Practitioner Mental Health Treatment Plan dated in 2017, which was contained in the file of the MM Clinic, read in part as follows:
"The presenting complaint: anxiety / adjustment
Biological, psychological and social history / treatment: the child is unable to talk about the father and the child fled with the mother from a DV situation – this was physical and sexually abusive for the mother
the child has urine frequency that has now settled and the little girl does not talk with mother about the father
Mother fears that the step brother who is older also interfered with this child – no proof?
the mother fled with inly (sic) the childs possessions.
SHE IS A CHILD AT RISK – BUT EMBROLIERD IN COURT CASES – SHE IS BREAKINKING ORDERS – AS SHE IS KEEP THE CHILD FROM VISITATIONS WITH THE FAMILY OF THE FATHER – MOTHER IS STILL STRUGGLING WITH HER PTSD AROUND THIS – THANKYOU FOR YOUR CARE
26/ 7/2018 – THE CHILD IS EXPRESSING SOME MEMORIES IN RELATION TO ASSAULT BY STEP BROTHERS – AND THIS APPEARS TO BE SEXUAL ? WAS THIS CHILD REQUESTED TO GIVE ORAL SEX / - WITH THANKS FOR YOUR ON GOING CARE"
The single expert recommended that B continue her therapeutic relationship with Ms RR during a period in which graduated time with the father is introduced and thereafter she be monitored by a school counsellor. She recommended also that the father be given an opportunity to meet and consult with Ms RR.
These proceedings were commenced by the mother in the Federal Circuit Court with an application filed on 24 May 2017. On 13 July 2017 interim orders were made which provided that B spend supervised time with the father at the C Group Contact Centre for two hours once per month.
On 29 September 2017 the Federal Circuit Court made interim orders which provided that B's time with the father progress to an unsupervised, day-only arrangement. These orders provided that B spend three periods of supervised time with the father during October 2017. The orders provided that B then spend unsupervised time with the father from 10.00 am until 4.00 pm each Sunday, commencing on 5 November 2017.
The mother did not make B available to spend time with the father on 26 November 2017 and 3 December 2017. On 10 December 2017 B spent time with the father under the supervision of the paternal grandmother and on condition that he not take her to the former family home at Suburb BB.
B did not spend time with the father between 17 December 2017 and 18 February 2018. She spent time with the father on 18 February 2018 at the C Group Contact Centre, but then did not see him again until she spent supervised time with him on 5 May 2018.
On 26 May 2018 B spent time with the father for six hours under the supervision of the paternal grandmother, pursuant to interim orders made on 21 May 2018. These arrangements continued until the trial in January/February 2019.
The mother alleged that the father was present at E Town, near her home on the Z Region, on 17 April 2018. The father denied that he was in E Town on that occasion and his evidence was corroborated by a witness, Ms QQ. The mother reported the father's alleged presence in E Town to police, who apparently elected to take no action. Ms QQ was not required for cross-examination.
The evidence and witnesses
The applicant mother relied on the following affidavits:
1. Ms Callum (the mother) affirmed on 11 December 2018
2.Ms O (mother's treating psychologist) affirmed 20 November 2018
3.Ms TT affirmed 28 November 2018 (friend of the mother)
4.Ms JK (friend of the mother) sworn 4 February 2018
5.Ms HH (friend of the mother) affirmed 9 December 2018
6.Financial Statement sworn on 18 January 2019.
Only the mother was required for cross-examination by counsel for the father and the ICL. Counsel for the mother sought leave to rely on an affidavit sworn by the current partner of the mother, Mr VV, at a late stage in the trial. This leave was sought only on 31 January 2019 and immediately prior to the cross-examination of the single expert Dr U, who had not interviewed Mr VV. No explanation was proffered as to the failure to adduce this evidence in a timely manner and I refused the application.
As outlined above, I excluded various passages in the report of Ms O on the objection of counsel for the father. Ultimately, Ms O was not required for cross-examination.
The respondent father relied upon the following affidavits:
1. Mr Lechiara (the father) sworn on 10 December 2018
2.Ms G (first wife of the father) sworn on 5 December 2018
3.Ms Lechiara Snr (the paternal grandmother) sworn on 14 December 2018
4.Ms QQ (friend of the father) sworn on 18 January 2019
5.Financial Statement sworn on 21 December 2018.
The father, Ms G and Ms Lechiara Snr were required for
cross-examination by counsel for the mother and the ICL.
I had the benefit of a Chapter 15 Single Expert Report prepared by Dr U, a psychologist. Dr U gave very helpful oral evidence in addition to the contents of her report.
Approach To These Proceedings
In making a parenting order, the Court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out “primary” and “additional” considerations, to which the Court must have regard in determining what orders are in a child’s best interests.
The Court must have regard to the objects of Part VII, as contained in s 60B(1) and the principles underlying those objects, as set out in s 60B(2). Subsection 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.
Section 61DA of the Act requires the Court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the Court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the Court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.
If a parenting order provides for equal shared parental responsibility the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (s 65DAA(1) of the Act). If there is no order for equal time, the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent. The concepts of “substantial and significant time” and “reasonable practicality” are defined in ss 65DAA(3), (4) and (5) of the Act. There is no temporal definition of “substantial and significant time”.
In MRR v GR (2010) 240 CLR 461 the High Court of Australia said:
"8.Sub-section (1) of s 65DAA is headed “Equal time” and provides:
“If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”
Sub-section (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the Court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the Court is obliged to:
“(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Sub-section (3) explains what is meant by the phrase “substantial and significant time.”
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question.
Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents”.…
13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
…
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible…"
(footnotes omitted)
In M v M (1988) 166 CLR 69 the High Court of Australia addressed the issue of unacceptable risk to a child of sexual abuse. At 76 – 77 their Honours said, inter alia:
" ... 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. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
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 (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."
...
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. ..."
The involvement of the mother with mental health professionals
I have referred above to the notes of Dr P in relation to the mother's first consultation on 28 August 2012. In his report of 4 December 2014 to the mother's general practitioner, Dr P wrote:
"Further to my letter of 20 November 2014, on presentation today, [Ms Callum] spoke of:
● Referral to Dr [WW] ([PP Group]) I understand [Ms Callum] has an appointment with Dr [WW] at 4:15pm on Saturday, 6 December 2014.
● Her stepchildren now being "amazing ... because they're seeing a psychologist ... it's getting better ... life is actually really good ... I have a husband who is so supportive and works like a Trojan ...".
● Being very angry with herself and throughout her life never addressing issues which cause her distress. "Rather than dealing with whatever is wrong, I just push it aside and then I have to fight in my head".
● Problems with emotional regulation and underlying feelings of anger, which are masked by portraying herself as somebody who is "extremely happy" and being fun crazy ... "I prank people". [Ms Callum] spoke of going to "huge" lengths to experience love and affection. "Doing well at sport is the only way I have ever got it ... I still get upset if older figures don't say 'great game, [Ms Callum]'."
● Feeling a pain in her chest when she begins to address her underlying issues of concern.
..."
The notes of Dr P contained references to comments made by the mother concerning her parents. The notes of 13 September 2012 recorded that the mother said "Mother [Ms BC] 60 not affectionate" and "Father [Mr DF] 75 ... dad was never affectionate ... I'm pretty sure he beat the crap out of me". The notes of 10 May 2013 recorded that the mother said "I ended up kicking my mum".
In cross-examination by counsel for the ICL the mother said words to the effect "My father never beat the crap out of me so I don't know why I would have said that." She said also "My father was emotionally distant from me".
The notes of Dr P contained several complaints and criticisms by the mother of Ms G. Examples of such comments and criticisms included the following:
"28/8/12[X] doesn't like me ... [Ms G] ... she treats her kids like crap but her boys still love her to death ... I'm starting to resent the boys now ... husband gives so much with child support. She lied and got almost all his money from the two houses ... she got the good end of the deal but she is a horrible person
1/11/12Angry with the boys mother ... it eats away at me
28/2/13Boys mother demanding [Ms Callum] not contact boys when they are with her ... [Ms Callum] was sick with anger ... police called
8/10/13I have realised [Mr Lechiara's] ex-wife is crazy ... not all there ... now I just laugh it off ... I don't have that hatred there ... you are just a lost cause ... I just have to believe karma will get her"
The notes of Dr P contained several references to the father but no complaints whatsoever of sexual assault or coercion on his part. The mother's comments in relation to the father included the following:
"28/8/12 My husband doesn't understand me ... he just dismissed it
1/11/12I fell in love with him coz who he was ... I used to drink a lot when we first got together coz I had anxiety to the max
8/2/13Worried about losing connection with [Mr Lechiara]
16/5/13I use alcohol as a way of boosting my confidence. My husband says I am an alcoholic. Positive changes in relationship with her husband [Mr Lechiara]. It is now much more open and [Ms Callum] can be more authentic in what she says
12/7/13I'm in love with my husband ... but blended family relationship is so difficult
31/10/14House won't be clean purely because I have been lazy ... I used to be this like clean ... last night husband stayed up and got house clean. I hate the situation. I think I could move down to [Y Town] ... but I love my husband ... he does work so hard
4/12/14Life is actually really good ... I have a husband who is so supportive but works like a Trojan"
The file of Dr T contained a copy of a report dated 11 August 2009 written by Dr GH, a psychiatrist, apparently in the context of an application by the mother to join the police force. Dr GH noted that the mother's general practitioner referred her for treatment of depression, anxiety and impulsivity. Dr GH reported that he treated the mother's anxiety with cognitive behaviour therapy and medication. He noted that the mother "is in a stable, empathic relationship", which could only be a reference by her to the father.
The mother's first consultation with Dr T appears to have been on 25 June 2015. The notes of Dr T were hand-written and difficult to read but included the following:
"Depressed, suicidal"
"Constantly depressed"
"Been drinking to sleep"
"Chronic anxiety feelings"
"Plagued by lack of confidence and self-medicates for social anxiety".
Dr T's notes for 10 December 2015 read in part:
"Compliant and tolerant of hb's controlling and belittling behaviours".
There was no evidence of any other reference by the mother in the notes of Dr T to any form of abusive behaviour on the part of the father prior to the separation.
On 14 July 2016 Dr T noted:
"Has left hb – feels heaps better – does not have sick feelings in stomach"
and:
"Abuse by hb".
Dr T noted also:
"Financial abuse – he cleaned out joint account down to $500"
On 27 August 2016 Dr T noted:
"On the phone to [UU Group] – counselling service"
and:
"Informed how abusive hb actually was"
and:
"hb was tracking her on her phone".
The mother deposed that she contacted an organisation known as UU Group on 20 June 2016. Emails to the mother from a counsellor at UU Group (annexure 23 to the affidavit of the mother) read in part as follows:
"● literature that explains DV
● some of the impact of domestic and family violence
●this documentary may allow you to understand how some men who are perpetrators of domestic violence often have narcissistic tendencies. This is an interesting documentary that you may identify your husband possessing."
In a report dated 25 June 2015 to the mother's general practitioner, Dr T referred to "a background of physical and emotional abuse from her father" (the maternal grandfather). Dr T wrote "irritability is prominent and she describes herself as having "underlying anger" which I suspect is just a way of expressing the fact that she is very ready to erupt". I have referred above to Dr T's principal diagnosis of ADHD and his opinion that sufferers of this condition are "prone to secondary depressions" which he considered to be the case in relation to the mother.
As noted above, the mother began to consult psychologist Ms O following a referral on 30 August 2016 from Victims Services. In a report to Victims Services dated 13 October 2016 Ms O offered these opinions and diagnoses:
"[Ms Callum] presents with significant symptoms of posttraumatic stress disorder (PTSD) and on completion of psychological testing had results as follows: PCL = 83, IES = 83, DASS (D=30, A = 41, S = 41) with all core subgroups in the extremely severe range. [Ms Callum's] results are consistent with her self-reports regarding her symptoms and is consistent with a diagnosis of chronic PTSD.
[Ms Callum] specifically has symptoms including high level agitation, hypervigilance, heightened startle response, difficulties with concentration and memory, significant sleep disturbance (difficulty getting to sleep and staying asleep), flashbacks and unwanted memories of past traumatic events, disbelief about the events, and shame. [Ms Callum] reported on coming to terms with these symptoms as PTSD and reported that her husband would often convince her that her thoughts and feelings were something different and therefore often doubted herself. [Ms Callum] reported awareness of these symptoms as consistent with her trauma experiences and reported that she had tried to avoid acknowledging this stating that she now felt shame over staying in the relationship as long as did. [Ms Callum] reported fears for her safety stating that her husband was trying to find her and fears of what he would do."
In the same report Ms O referred to the mother's comments in relation to "a safety risk for her daughter if had to be in her husband's care". Ms O reported also that the mother "reported on risk of her husband's son abusing their daughter reporting on incidents of his remarks regarding their daughter".
Ms O's notes of 21 December 2016 contained a reference to "a possible romantic interest", which must have been to the mother's current partner Mr VV. The notes of 1 February 2017 read in part:
"[Ms Callum] reported that she had begun to see a friend more intimately however he has been through a similar separation and is ex-wife wanted to meet [Ms Callum] however reported that this felt like intimidation".
On 31 May 2017 Ms O noted "[Ms Callum] reported her new relationship going well aside from times when his ex would manipulate and control and [Ms Callum] wanted to set boundaries around this." On 8 March 2018 Ms O noted "her ability to speak up against her current partner's ex who had been slandering her in public".
On 30 October 2017 Ms O noted that the mother said "I'm handing my daughter over to a rapist". Ms O noted also that the mother complained about "her treatment in court", which she compared to her experiences with the father and her mother.
As noted above, the mother sought orders which would prevent all contact and communication between B and her half-brother Mr F. She has had contact and continues to enjoy a relationship with her other half-brother H.
The father and the ICL opposed these orders sought by the mother in relation to B's half-brother Mr F. As noted, the father agreed to the proposal of the ICL that he be present at all times when B is in the company of Mr F. The father agreed also to the order proposed by the ICL that Mr F not sleep in any premises in which B stays overnight.
In her oral evidence Dr U suggested that the paternal grandparents also could take on this supervisory role in relation to B and Mr F. She expressed concerns at the likely effect upon B of a permanent separation and severance of all contact from her half-sibling. She said:
"●it is a very unusual dynamic, to see one brother, to have a relationship with [H], to have a relationship with her grandparents and her father and then have to have this excised sort of member of her family who is camping perpetually
●I think it would be really confusing, disturbing and quite fractured to her sense of identity
●she will potentially come to have a very distorted view of risk and a very distorted view of interpersonal relationships
●ultimately, I think it is just potentially disturbing to her sense of security and identity within the broader family and within herself"
(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
A degree of practical difficulty in B spending time with the father arises from the distance between the homes of the mother, the father and the paternal grandparents. These proceedings, however, involve much more serious issues than these considerations.
(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
I have referred above to much of the evidence in relation to the capacity of the mother to provide for the needs of B. In essence, Dr U opined clearly that effective and consistent management of the mother's mental health is necessary to support her capacity to meet B's needs. Dr U offered the view that the mother should best accept that she has psychological vulnerability and work with a general practitioner, a psychiatrist and a clinical psychologist to ensure that her mental health does not deteriorate to a point where that there is impediment to her parenting capacity.
I agree with the opinion of Dr U that the parenting capacity of the father is largely untested, given the history of separation from B and limited and supervised time since the breakdown of the parties' relationship. He is, however, an experienced parent and has cared for Mr F and H for extended periods.
The incident of the father hitting B with sufficient force to cause welts must give rise to concern as to his parenting capacity. I am inclined to agree with Dr U, however, that this incident is more likely to be a "one-off" rather than a pattern of behaviour on the part of the father. I appreciate that the mother made generalised allegations that the father hit B on several occasions. Lack of particularity, however, prevents any finding that he subjected the child to multiple instances of inappropriate physical chastisement.
Dr U opined:
"131.... On observation of [B], I think it very unlikely that she has been subjected to significant physical abuse by the father. She was able to tell me that her father was kind to her and had not hurt her. It is likely that if one event did occur when she was inappropriately chastised, then this was a one-off event and not characteristic of the interaction between [B] and her father."
Dr U expressed concern that aspects of the father's personality may impact adversely on his parenting capacity. She reported as follows:
"167.I found some aspects of the father's presentation concerning. Notably, I was concerned about the way the father spoke about his former wife. He gave inconsistent accounts of his relationship with her. On the one hand he said that he got on very well with his first wife now and that they had a very good co-parenting relationship. This is not supported by the subpoenaed material, which indicates a history of conflict, including allegations from the father's first wife that he was manipulative and controlling. The father acknowledged that he formally referred to his first wife as "stupid". However, he said he no longer does this and that he uses his former wife's first name. However, as an aside, when the father was speaking about his relationship choices he made denigrating comments such as "I choose all the crazies". He also referred to his first wife as "crazy"."
Dr U reported further:
"169.I also felt that the father minimised certain matters in both his presentation to me and in his affidavit material. For example, although he dismissed the mother's claims about some of the concerns she raised with respect to [Mr F], he also omitted important matters with respect to [Mr F's] history. When I questioned him about these matters he minimised their significance."
In her oral evidence Dr U elaborated on these opinions as follows:
"He was quite disparaging about the mental health of both of his wives. And there was a cruelty or a, sort of, mimicking or mocking of that and I thought that there were – it concerned me because he seemed, in that and in various other things he said, in particular, about the mother in this case – that made me think that he is the sort of person who attributes blame to others. He wasn't willing to take much responsibility for where things had gone wrong in the relationship so I was concerned about that."
In her oral evidence Dr U addressed the potential impact upon B if the father has a coping mechanism of withdrawal and avoidance in interpersonal relationships. She was tentative in her opinions on this issue, because the father had seen B only for a few occasions of supervised time when she conducted her assessments. Her cautious prediction was that B may become wary of the father, particularly if he is "irritated and snappy" at the same time as he is withdrawing and avoidant of a situation or problem.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
There is no doubt that each of the parties loves B and wishes to play a significant role in her life. The mother levelled criticism at the father for his alleged failure to take up all opportunities to spend time with B. On the other hand, however, she unilaterally prevented B from spending time with the father on several scheduled occasions in 2017 and 2018.
(j) any family violence involving the child or a member of the child’s family;
I have made findings above in relation to the mother's allegations of conduct on the part of the father which would fall within the statutory definition of family violence. The mother alleged a pattern of conduct by the father which would amount to coercive and controlling behaviour. In my view, the mother bears the onus of proof of these allegations and the requisite standard is set out in s 140 of the Evidence Act.
I am not prepared to make positive findings that the father subjected the mother to family violence on the basis of her generalised allegations as to his conduct. I have set out above my reasons for findings in relation to the allegations of the mother as to specific instances of abuse and/or coercive and controlling behaviour on the part of the father. As set out above, I conclude that the evidence does not support a finding that the specific incidents of sexual assault did or did not occur as alleged by the mother.
The incident on 26 January 2016 reflected little credit on either party but, as indicated above, I am inclined to the view that the father's account of these events was more reliable than that of the mother. In my opinion the conclusion that the mother engaged in family violence on this occasion is inescapable, given her admission that she punched a hole in a wall. For reasons indicated above, I consider it more probable than not that B witnesses this conduct on the part of the mother.
Parental responsibility
The mother sought an order that she have sole parental responsibility for B and her proposal contained no mechanism by which she would keep the father informed of major decisions in relation to the child. The ICL and the father proposed the parties have equal shared parental responsibility, provided that they consult in writing in relation to education and medical treatment and attend shuttle mediation if they are unable to reach agreement.
Dr U was asked questions by counsel for the ICL in relation to the issue of parental responsibility. She said inter alia:
●if the mother is given sole parental responsibility, I think the risks are that she would – it would lead to a situation where the father's role in [B's] life is further diminished to a person of non-significance and [B] would quickly become aware of that. It would be very much a setup that it's [B] and mum, we make the decisions and that's the person you have to go to and visit sometimes. And I think that would cause problems for [B] because she has a loving father. She has a loving paternal family who have good things to contribute to her education, her health, making decisions.
●the second problem in my view is that if the mother's psychological vulnerabilities escalate or are maintained, I think that the mother is, perhaps – may have some deficiencies in decision-making in so far as her ability to realistically appraise risk in particular. And that might mean that she would make decisions based on an avoidant response rather than a response that might be healthy for [B] – like fleeing or going and living somewhere on a whim or leaving an area because her relationship fell apart. And I think that puts [B] at risk of instability which would be a problem given that she has already had quite an unstable early childhood
●there is a difficulty because the father's capacity to exercise parental decision-making is really untested.
Dr U outlined the advantages to B of a regime of shared parental responsibility. She said inter alia:
"Putting aside the parents and their difficulties, from [B's] perspective, that's the optimal solution because it gives her a very strong message that mum and dad who love me and who I love are very important adults and they make the big important decisions in my life. And that makes me feel comfortable and secure and gives me permission to not just love them but regard them as people who are worthy of making those decisions just like everybody else's parents."
Dr U was fully alert to the issues created by the mother's anxiety surrounding the father and recognised that there is a risk that the parents would be unable to arrive at decisions concerning B. She considered that day-to-day decisions could be made by the parent who has care of B at any given time. On the question of major decisions, Dr U proffered the view that the parents should obtain professional assistance to reach a joint decision. Dr U made no recommendation that the parties attend upon such a professional person simultaneously.
The recommendations of Dr U in relation to parental responsibility were incorporated into the Minute of Orders proposed by the ICL and adopted by the father. I see considerable merit in these proposals, for reasons outlined by Dr U. I accept that the father has much to offer B and that she would benefit from being aware that each of her parents is closely involved with her life. I accept that sole parental responsibility with the mother would create a real risk of marginalisation of the father and paternal family. I accept also that there are deficiencies in the mother's decision-making capacity, which give rise to a risk of impulsive behaviour at times of crisis.
For these reasons, I will accede to the proposal of the ICL and the father on the issue of allocation of parental responsibility. I do so having regard to the mother's difficulties in dealing with the father. She has a supportive therapeutic relationship with Ms O, who will be in a position to assist the mother to come to terms with the outcome of these proceedings.
Conclusion
As there will be an order for equal shared parental responsibility I am required to consider whether it would be in B's best interests, and reasonably practicable, that she spend equal or substantial and significant time with each of her parents. In my view, this artificial exercise can be disposed of shortly. Firstly, neither parent nor the ICL proposed any such arrangement. Secondly, the practicalities of the travelling time between the homes of the parents clearly militate against any such regime.
The resolution of these proceedings requires a delicate balancing exercise and B's need for a much expanded and closer relationship with the father and the paternal family, as against the psychological vulnerabilities of the mother. Unfortunately the mother's psychological vulnerabilities now appear to be focussed on the father and Mr F, to a lesser extent.
I have made findings which result in a conclusion that there is no need for protection of B from abuse, harm or neglect in the care of the father. In my view the orders proposed by the ICL and the father are likely to achieve a balance between B's needs and the mother's vulnerabilities. I note that counsel for the ICL informed me that these proposals were formulated with the benefit of the oral evidence of Dr U.
It is open to the mother to seek professional assistance so as to deal with the outcome of these proceedings. As noted above, she has a supportive therapeutic relationship with Ms O. Fortuitously, Ms O was present in court throughout the lengthy oral evidence of Dr U and her notes of 3 May 2018 indicated that she had discussed the expert report with the mother. Hopefully, Ms O now has a greater understanding of the dynamics between the parties and B's need for a proper relationship with the father and paternal family.
I certify that the preceding two-hundred and twenty (220) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 24 April 2019.
Associate:
Date: 24 April 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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