CHIMIN & FIATO
[2021] FamCA 46
FAMILY COURT OF AUSTRALIA
| CHIMIN & FIATO | [2021] FamCA 46 |
| FAMILY LAW – CHILDREN – With whom a child lives – Best interests of the child – where the mother alleged that the child has been sexually abused by the father and is at risk of being abused by him in the future – where the mother alleged that the father had circumcised the child or caused others to circumcise her and that he would act to do so again if her time with him was unsupervised – where the father denies behaving in an abusive manner – where the mother sought a finding that the father harmed the child as alleged and that the child is at an unacceptable risk of harm if her time with the father is unsupervised but then proposed that orders be made for the child to spend unsupervised time with the father – where the father sought a finding that it is in the child’s best interests to live with him and spend only supervised time with her mother – where it is found that the child will not be at an unacceptable risk of harm if her time with her father continues to be unsupervised – where it is concluded that, despite the mother’s asserted beliefs about the father’s alleged behaviours toward the child, it is in the child’s best interests to continue to live primarily with her mother provided that the mother continues to make her available to spend unsupervised time with her father in the manner provided in the orders made. |
| Family Law Act 1975 (Cth) |
| Banks & Banks (2015) FLC 93-637 M v M (1988) 166 CLR 69 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 |
| APPLICANT: | Mr Chimin |
| RESPONDENT: | Ms Fiato |
| INDEPENDENT CHILDREN’S LAWYER: | Faraday Law |
| FILE NUMBER: | BRC | 10018 | of | 2015 |
| DATE DELIVERED: | 12 February 2021 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 18, 19, 20, 27 & 28 February 2019; 1, 18 & 19 March 2019, 5 April 2019, 15 January 2020, 24 & 29 January 2020, 7 February 2020, 12 & 13 August 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Bertone on 18, 19, 20, 27 February 2019; 1, 18 & 19 March 2019; 5 April 2019; and by way of written submissions in reply filed 23 January 2020; and on 24 & 29 January 2020, 7 February 2020; 12 & 13 August 2020; Mr Anderson on 15 January 2020 |
| SOLICITOR FOR THE APPLICANT: | Indigo Law |
| COUNSEL FOR THE RESPONDENT: | Ms McArdle on 18, 19 and 20 February 2019; Ms Martinovic on 27 & 28 February 2019; 1, 18 & 19 March 2019; 5 April 2019; |
| SOLICITOR FOR THE RESPONDENT: | Keyworth Harris & Lowe Family Lawyers on 18, 19, 20, 27 February 2019; 1, 18 & 19 March 2019; 5 April 2019; and then Page Provan on 15, 24 & 29 January 2020; 7; 12 & 13 August 2020 |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr McGregor |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Faraday Law |
Orders
IT IS ORDERED BY WAY OF FINAL ORDER THAT
All previous parenting orders are discharged.
The child B, born on … 2013, live with the mother.
The parents shall have equal shared parental responsibility for the major long-term issues of the child, including but not limited to:
(a) the child’s current and future education; and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d)any changes to the living arrangements that make it significantly more difficult for the child to spend time with each parent.
The parents shall consult with each other about decisions to be made in the exercise of their equal shared parental responsibility, as follows:
(a)each shall inform the other parent about the decision proposed to be made; and
(b)unless the decision relates to an acute or life threatening illness or injury to the child, when the time frame will be dictated by medical needs, each parent shall, at least two (2) months before the date on which the proposal is to be implemented, provide the other, in writing, with the details of any proposal and the intended date on which the proposal is to be implemented; and
(c)the parent receiving the proposal shall, within seven (7) days of receiving the same, provide the other parent with written details of any proposed variations to the proposal; and
(d)the parent receiving written details of any proposed variation to the initial proposal shall, within seven (7) days of that receipt, provide the other parent with written notice of their response to the proposed variation; and
(e)each parent shall make a genuine effort to come to a joint decision about a proposal before the intended date on which the proposal is to be implemented.
Each parent has responsibility for daily decisions about the day to day care, welfare and development of the child when she is in that parent’s care.
The father be restrained and an injunction issue restraining him from taking any steps personally to cause the child to undergo any form of female genital mutilation and from taking any steps to have any other person cause the child to undergo any form of female genital mutilation.
Unless otherwise agreed by the parents in writing, the child shall spend time with the father as follows:
(a)during school terms: from after school or 3.00 pm on Friday (or, if the father gives 48 hours’ notice that he is unable to collect the child on Friday, then from 9.00 am Saturday) until 4.00 pm on Sunday on all weekends other than the third weekend of each month, with the father to be at liberty to arrange for the child to attend after-school care on Friday if he considers her attendance at the same necessary; and
(b)during the school holidays at the end of Term 1 in 2021: from 10.00 am on 6 April 2021 until 4.00 pm on 11 April 2021; and thereafter
(c)for the first half of the school holidays at the end of Terms 1, 2 and 3 each year; and
(d)for half of the school holidays at the end of Term 4 each year, with such time to occur as follows:
(i)in 2021 and 2022: for the first, third, fifth and seventh (if any) weeks of the school holiday period; and
(ii)commencing with the holidays at the end of Term 4 in 2023: for the first half of the school holiday period, with such time to start at 10.00 am on the Saturday immediately after school ends for the Term and to conclude at 10.00 am on the fourth Saturday after school ends for the Term (if the child’s school holidays are of six or seven weeks’ duration) or the fifth Saturday after school ends for the Term (if the child’s school holidays are of eight weeks’ duration).
Notwithstanding any other order and unless otherwise agreed between the parents in writing, the child shall also spend time with her father as follows:
(a)on the weekend during which Father’s Day falls: from after school or 3.00 pm Friday until 4.00 pm on Sunday; and
(b)if the child is not otherwise spending time with him in accordance with the terms of this Order and when the father’s birthday falls on a Friday, Saturday or Sunday: on that weekend from after school or 3.00 pm Friday until 4.00 pm on Sunday; and
(c)if the child is not otherwise spending time with him on her birthday and it falls on either Saturday or Sunday: from 10.00 am until 4.00 pm on the day of her birthday.
The father is at liberty to attend any school event at which parents would ordinarily attend (such as, but not limited to: speech nights; parent-teacher interviews; sports events; swimming carnivals and fetes) and is at liberty to attend the child’s extra-curricular activities.
Commencing with the Term 1, 2021 school holiday period, the operation of Clause (7)(a) shall be suspended during school holiday periods.
Unless otherwise agreed by the parents in writing, the child shall communicate with the father by telephone, FaceTime or other suitable app:
(a)each Sunday at 4.00 pm (if she has not spent time with him on that day) and each Tuesday and Thursday at 5.30 pm: with the father to initiate the communication and the mother to make the child available to receive the communication; and
(b)on her birthday (if she has not otherwise spent time with him on that day): with the father to initiate the communication and the mother to make the child available to receive the communication; and
(c)on the father’s birthday (if she has not otherwise spent time with him on that day): with the mother to cause the child to initiate the communication to the father.
The mother will keep the father advised of the child’s mobile phone number and email address (if any), and advise the father in writing of any change to the same within seven (7) days of the change occurring.
Notwithstanding any other order and unless otherwise agreed between the parents in writing, the child shall also spend time with her mother as follows:
(a)on the weekend during which Mother’s Day falls: from after school or 3.00 pm Friday until before school or 8.30 am on Monday; and
(b)if the child is not otherwise spending time with her mother in accordance with the terms of this Order on the mother’s birthday: from 4.00 pm on 10 January until 10.00 am on 12 January.
Unless otherwise agreed by the parents in writing, the child shall communicate with the mother by telephone, FaceTime or other suitable app:
(a)when the child is spending time with the father during school holidays: each Sunday at 4.00 pm (if she has not spent time with her on that day) and each Tuesday and Thursday at 5.30 pm: with the mother to initiate the communication and the father to make the child available to receive the communication; and
(b)on her birthday (if she has not otherwise spent time with her on that day): with the mother to initiate the communication and the father to make the child available to receive the communication.
Unless otherwise agreed between the parents in writing or otherwise specified in this Order, changeovers shall occur as follows:
(a)for those which occur on weekdays during school term: at the child’s school; and
(b)for those which occur during school holidays or on a non-school day: at L Park, M Street, N Town.
Each parent is at liberty to arrange for another person to collect the child at the commencement of her time with that parent, or to return her at the conclusion of such time, provided that any such person is known to the child.
Neither parent shall enrol the child in any activity which occurs during time that the child is living or spending time with the other parent without first obtaining the written consent of that parent.
During the time the child lives or spends time with or communicates with either parent, each parent shall:
(a)respect the privacy of the other parent and not question the child about the personal life of the other parent; and
(b) speak of the other parent respectfully; and
(c)not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child; and
(d)if a third party is denigrating the other parent in the presence of, or within hearing of, the child: take all reasonable steps to remove the child from that location.
Each parent shall keep the other informed of the contact details of the child’s doctors, health care and other treatment providers.
Each parent shall inform the other as soon as is reasonably practicable of any chronic medical condition, significant health issue or illness suffered by the child and, in the event of the child being admitted to hospital for emergency treatment, receiving treatment by an ambulance crew, or being taken to a medical practitioner for urgent treatment following any accident, injury or sudden illness, shall immediately, by the best means available, notify the other parent of the following details:
(a)the name and contact details of the medical professional administering the treatment; and
(b)the medical or other complaints for which the child was taken to the medical professional; and
(c)any treatment and/or medication prescribed for or provided to the child and the reasons for the same; and
(d)the prescribing or provision of such medication and/or treatment; and
(e)if the child is admitted to hospital: the name and contact details of that hospital.
By this Order, any treating medical practitioner is hereby authorised to release to both parents such medical information about any medical emergency, significant health issue or significant illness suffered by the child as they are lawfully able to provide about the child.
The mother shall keep the father informed of the details of any school, educational facility or extra-curricular activity provider at which the child attends.
By this Order, any school, educational facility or extra-curricular activity provider at which the child attends is authorised to provide each parent with such information as they are lawfully able to provide about the child and her progress.
If there is a cost associated with the provision of any information or documents by the child’s doctors, health care and other treatment providers or school, educational facility or extra-curricular activity provider, that expense shall be borne by the parent requesting the information.
The mother shall ensure that the father is nominated as an emergency contact with any school, medical practitioner or extra-curricular service provider upon which the child attends.
Each parent keep the other parent informed at all times of their residential address, contact telephone number and an email address and:
(a)notify the other in writing as to any change in those details as soon as practicable and no later than seven (7) days after such change; and
(b)notify the other parent at least sixty (60) days prior to relocating their residence beyond a fifty (50) kilometre radius from where they currently reside.
Save for in therapeutic counselling, neither parent shall discuss these proceedings, nor the allegations made in them, with the child, nor involve the child in any discussions regarding any issue in dispute between them.
The mother shall ensure that, until 1 January 2022, the child continues to attend upon Ms H at such times as Ms H can accommodate and as frequently as she recommends for the purpose of supporting the child and, thereafter, as recommended from time to time by Ms H.
Each parent shall attend upon Ms H from time to time as recommended by Ms H.
The mother shall continue to attend on Ms P for therapy as recommended from time to time by Ms P.
Unless agreed between the parents in writing, Ms Fiato, born on … 1981 and Mr BG Chimin, also known as Mr BH Chimin, and also known as Mr Chimin, and commonly known as Mr BJ Chimin, born on … 1985, their servants and/or agents be and are hereby restrained by injunction until 31 December 2025 from removing or attempting to remove or causing or permitting the removal of the child, B, born … 2013, from the Commonwealth of Australia.
It is requested that the Australian Federal Police give effect to this Order by placing the name of the child, B, a female, born on … 2013 on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until 31 December 2025.
Unless an earlier date is agreed between the parents in writing:
(a)the child, B, a female, born on … 2013, is permitted to leave the Commonwealth of Australia for the purpose of international holiday travel with either of her parents after 31 December 2025 and, in order to facilitate such travel, the child is permitted, after 30 November 2025, to have an Australian travel document as that term is defined in and for the purpose of the Australian Passports Act 2005 (Cth); and
(b)each parent is permitted to remove the child from the Commonwealth of Australia after 31 December 2025 for the purpose of holiday travel to any country that is a party to the Hague Convention on the Civil Aspects of International Child Abduction and, with the written consent of the other parent, to any other country.
Unless otherwise agreed by the parents in writing, any international holiday travel undertaken by the child in accordance with Clause (33) shall occur during school holidays.
In the event that a parent wishes to remove the child from the Commonwealth of Australia pursuant to Clause (33), the following shall occur:
(a)the travelling parent shall provide the other parent with not less than sixty (60) days’ notice in writing of the intention to travel overseas, details of the destination and proposed departure and arrival dates; and
(b)the parent wishing to travel will provide the other parent with an itemised itinerary of the proposed travel plans; and
(c)not less than thirty (30) days before the proposed date of departure from the Commonwealth of Australia, the travelling parent shall provide the other with:
(i)a copy of a return ticket for the child, evidencing the date of departure and date of return to the Commonwealth of Australia; and
(ii)a copy of an itinerary which contains all accommodation and flight details, contact details and sufficient contact details to enable telephone or Skype communication between the non-travelling parent and the child to occur in the manner provided for in this Order; and
(iii)a copy of documents evidencing the existence of travel insurance for the child for that particular trip; and
(iv)proof of registration of the child’s trip on the Smart Traveller with the Department of Foreign Affairs and Trade.
Once a passport is obtained for the child, the mother is entitled to possession of the same on the proviso that, in order to facilitate overseas holiday travel notified by the father in accordance with Clause (35) of this Order, she shall provide the same to the father no less than fourteen (14) days before any notified proposed date of departure from the Commonwealth of Australia.
In the event the father removes the child from the Commonwealth of Australia for the purpose of holiday travel, he shall return the child’s passport to the mother within seven (7) days of the child’s return to the Commonwealth of Australia.
Should the parents be unable to agree in the future about any significant parenting matters, then the process to be used for resolving disputes about the same and to resolve any disputes about the terms or operation of these Orders will be as follows:
(a)the parents will consult with a Family Dispute Resolution Practitioner (FDRP) via Relationships Australia or a private practitioner to assist with resolving any dispute or reaching agreement about changes to be made; and
(b)the parents will pay the costs (if any) of the FDRP equally; and
(c)in the event that the parents cannot agree upon the FDRP, then the mother will nominate three (3) practitioners and advise the father in writing of the details of each practitioner’s fees, experience and availability; and
(d)the father shall, within seven (7) days of receipt of her list, choose one of the practitioners from the mother’s list; and
(e)in the event that the father fails to choose a practitioner within seven (7) days, the mother may choose a practitioner; and
(f)whichever way the practitioner is chosen, the mother shall arrange for an initial appointment for the parents to attend upon that practitioner as soon as possible and shall notify the father of the details of the appointment in writing.
If either parent does not respond to the other parent’s proposal as prescribed by Clause (4) of this Order or does not engage in the dispute resolution process referred to in Clause (38) above, then the parent making the proposal is at liberty to implement the proposal from the date notified as being the date on which they sought to implement the proposal.
AND IT IS FURTHER ORDERED THAT
In the event that either parent fails to comply with a request to sign and return any document necessary to put the terms of this Order into effect, a Registrar of the Family Court of Australia is appointed, pursuant to section 106A of the Family Law Act 1975 (Cth), to sign such document or documents in the name of the parent who has declined to comply with such request.
Each parent and the Independent Children’s Lawyer has leave to provide a copy of the Order made 12 February 2021 and the Reasons for Judgment published in support of the same to the school at which the child attends, to any therapist upon whom the parents and/or the child attends for the purpose of therapy and to the Department of Child Safety, Youth and Women (by whatever name that Department is known) and, if necessary, to any member of the Queensland Police Service or the Australian Federal Police.
Save as is otherwise ordered herein, no party is permitted to use any documents provided to them in the course of this proceeding for any purpose other than this proceeding or any appeal in respect of these Orders.
The father has liberty to apply on the giving of forty-eight (48) hours’ notice in writing in the event that the mother fails to make the child available to spend time with him in accordance with the terms of this Order.
The Independent Children’s Lawyer is discharged unless a Notice of Appeal is filed by any party within the time prescribed or such other time as allowed by Order.
IT IS DIRECTED THAT
Any application by the father in reliance on the liberty to apply conferred by Clause (43) of this Order shall, if practicable, be brought immediately to the attention of Hogan J.
AND IT IS FURTHER ORDERED THAT
All outstanding parenting applications are otherwise dismissed and removed from the list of cases requiring finalisation.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
IT IS NOTED THAT
(A)Order (6) was made because the father sought that an order be made that he not take any steps personally or to arrange to have any person touch the child’s genitals for the purposes of genital mutilation or cutting.
(B)The mother has advised that she will meet Ms H’s fees for her attendance on Ms H and the child’s attendance on Ms H.
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 Chimin & Fiato 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 BRISBANE |
FILE NUMBER: BRC 10018 of 2015
| Mr Chimin |
Applicant
And
| Ms Fiato |
Respondent
And
| The Independent Children’s Lawyer |
REASONS FOR JUDGMENT
These proceedings require the determination of those parenting orders which are in the best interests of the child, who was born in 2013. the child has always lived with her mother.[1] Before orders were made by consent on 13 August 2020, she had spent no more than four nights[2] in the care of her father[3] since the parental separation in about mid-2014.
[1]Who was born in Brisbane in 1981.
[2]Namely: two nights before February 2017; 24 January 202 and 28 January 2020.
[3]Who was born in AB City, Country F in 1985.
The child’s parents met in late December 2008 at a resort in Country F, when her mother travelled there to holiday at a resort at which the father worked. Her mother returned to Country F to visit the father in early April 2009. After the mother obtained a tourist visa for him to travel to Australia, the father did and stayed with her in Brisbane. After the mother obtained employment in AH City, she and the father moved there in about August 2009. In about December 2009, they returned to Brisbane; after the mother converted from a Christian faith to Islam, they married at a Mosque in 2009. After their marriage, they moved to AJ Town in north Queensland to live and work but returned to Brisbane when the mother found out she was pregnant: they purchased a house in AD Town in February 2013.
The child’s parents separated on a final basis a few months before October 2014, at which time the mother and the child moved to stay with the maternal grandmother near D Town. However, the mother and the child later returned – at the maternal grandmother’s urging – to live at the AD Town property with the father until it was sold in October 2014. After this, the father moved to live in Suburb AG and the mother and the child returned to live in D Town. The child thereafter spent time with her father on at least a weekly basis: to facilitate this, he travelled to D Town and often stayed in the maternal grandmother’s home. Whilst the child’s time with her father often occurred in her mother’s or maternal grandmother’s presence, I accept there were occasions when she spent unsupervised time with him whilst her mother and maternal grandmother were at work. This situation continued until 25 September 2016, when the child spent an overnight with her father at his home in Brisbane.
After the events of 26 September 2016 (discussed in greater detail below), the child continued to spend time with her father: he contended that, until 13 November 2016, there were occasions when this was in the absence of the mother or maternal grandmother, whilst the mother contended that any time after 26 September 2016 was supervised.
It is uncontroversial that, after 13 November 2016, the child did not spend time with her father (other than in the course of an interview on 6 December 2017 associated with the preparation of the first Family Report) until she spent time with him at a Contact Centre on 21 April 2018.[4] It is also uncontroversial that fortnightly supervised time occurred there from then until about mid-August 2018 (save for a missed session in mid-June 2018), when that Contact Centre shut. the child subsequently spent one session of supervised time with her father at a new Contact Centre on 7 October 2018 but, after she refused to see him on three subsequent occasions, that Centre acted unilaterally to “suspend” this time – consequently, the child did not see her father or spend time with him again (other than in the course of interviews on 9 January 2019 for the preparation of the second Family Report) until 23 February 2019. I accept that thereafter, until 24 January 2020, the child spent fortnightly supervised time with her father at a Contact Centre, save for on 16 November 2019 when she did not attend due to ill-health.[5]
[4]As a consequence of Orders made by Baumann J on 3 April 2018.
[5]Affidavit of the mother filed 15 January 2020 at [4] – [7].
On 24 January 2020, the mother successfully applied to re-open her evidence for the second time. I granted her leave to adduce evidence of a new proposal for parenting orders: namely, that the child continue to live with her, the parents have equal shared parental responsibility for major long-term issues relating to the child and that the child spend unsupervised alternate weekend time and, commencing in April 2020, week-long school holiday time with her father.
On 24 January 2020, I also acceded to an oral application made by Counsel for the father to the effect that, given the mother’s changed position vis-à-vis the orders sought on a final basis, I should make an interim parenting order for the child to spend unsupervised time with the father pending the making of final parenting orders. In particular, I ordered that the child spend unsupervised time with her father from late on the afternoon of 24 January 2020 until 2.30 pm on 29 January 2020. This order was made on the undertaking of the mother not to contact the child in any way from the rising of the Court that day until Judgment was delivered on 29 January 2020 (as was then the intention).
On 29 January 2020, I again granted the mother leave to reopen proceedings to adduce the evidence contained in her affidavit filed 29 January 2020. This evidence included that an upset father had contacted her on the morning of 25 January 2020 because the child was upset and crying, that he had subsequently brought the child into town and – however it came to be – that he, the child, the mother and the maternal grandmother spent time together over the weekend. The evidence about that weekend included that the child was upset when the father sought to have her accompany him to his home and that he became upset as a result of her upset. The reality for the child was that, despite the terms of the 24 January 2020 order, she spent only the nights of 24 and 28 January 2020 in her father’s care and also spent very significant time with her mother.
On 29 January 2020, I also ordered that the child return to her mother’s care and, by consent, spend unsupervised time with her father from 10.00 am until 4.00 pm on Sunday 1 February 2020, with changeovers to occur at McDonald’s Restaurant, J Town. Despite agreeing to this order, the mother maintained her position to the effect that the father represented an unacceptable risk to the child: her case then was advanced on the basis that, as she considered there was a very real possibility that the Court might order the child to live primarily with her father, her proposal for limited unsupervised day-time contact between the child and her father was the best way, in such circumstances, to minimise what she asserted was the risk he posed to the child.
On 7 February 2020, I made a further order, by consent, that the child continue to spend unsupervised time with her father each Saturday between 10.00 am and 4.00 pm, with changeovers to occur at McDonald’s Restaurant, J Town (the February 2020 Order). On 19 February 2020, I granted the father leave to re-open the proceedings to adduce further evidence contained in his affidavit filed 14 February 2020; I also granted the Independent Children’s Lawyer leave to re-open the proceedings to adduce further evidence and I ordered the preparation of an updated Family Report.[6]
[6]Ms E’s third Family Report, dated 11 March 2020, prepared following interviews and observations conducted on 27 February 2020.
Whilst the matter was originally listed to 24 March 2020 for further hearing, the COVID-19 pandemic resulted in this date being vacated.[7] On 3 April 2020, I listed the matter for further hearing for two days, commencing 13 August 2020. On 22 May 2020, as a result of the Queensland Government’s decision to move a public holiday, the matter was listed to recommence on 12 August 2020 rather than 13 August 2020.
[7]on 19 March 2020.
On 13 August 2020, I discharged that aspect of the February 2020 Order that provided for the child to spend unsupervised time each Saturday with her father. In lieu of the same, I made a further parenting order, by consent, that the child:
a)spend time with her father from after school or 4.00 pm on Friday 14 August 2020 (with the father to collect her from school) until 4.00 pm on Saturday 15 August 2020 (with changeover to occur at L Park, AC Town); and, thereafter
b)spend time with her father every weekend: from either 3.00 pm or after school Friday until 4.00 pm Saturday (with the father to collect her from school at the start of this time and changeover to occur at L Park at the end of this time) or, upon the father giving 48 hours’ notice that he was unable to collect the child from school on Friday, then from 9.00 am Saturday until 4.00 pm Sunday, with changeovers to occur at L Park.
I also ordered, by consent, that the child communicate with her father by telephone, Facetime or other suitable application by him telephoning her each Tuesday and Thursday from 5.30 pm and, unless changeover occurred on that day, each Sunday from 4.00 pm.
The parents also agreed, on 13 August 2020, that L Park be used as the place for all changeovers that happened other than at the child’s school, that the father be at liberty to attend the child’s extra-curricular activities and any school events at which parents usually attend and that the school be authorised to provide him, at his cost, with any information about the child ordinarily provided to parents.
Competing Proposals
The father
The father initially sought that the parents have equal shared parental responsibility for the child, that she live with her mother and spend time with him. However, in January 2019, he told Ms E (a Family Consultant and author of the three Family Reports prepared to assist in the resolution of this matter) that he then proposed that: the child live with him and spend time with her mother each alternate weekend (from Saturday morning until Sunday evening) and for half of the gazetted school holiday periods; or, if the Court decided it was in the child’s best interests that she remain living with her mother, she spend time with him each alternate weekend (from Saturday morning until Sunday evening) and for half of the gazetted school holiday periods.
However, at the start of the trial, the father sought orders in the terms particularised in a document provided to the Court by Ms Bertone of Counsel, who appeared for him. In broad summary, the orders sought included that: the child live with him; he have sole parental responsibility for major long-term issues relating to her (with an associated obligation to advise the mother in relation to the same in the manner set out in the proposed orders); and that the child spend time with her mother each alternate weekend and for half of the school holiday periods. The father also proposed that an order be made that he not take any steps personally to, or to arrange to have any other person, touch the child’s genitals for the purposes of genital mutilation or cutting.
The orders sought by the father following the close of the evidence were particularised in the written submissions prepared on his behalf. Whilst aspects of these were amended orally by Ms Bertone during her submissions, following receipt of the terms of orders proposed by the Independent Children’s Lawyer, it suffices to record that, at the commencement of submissions, the orders sought by the father included that: the child live with him; there be a four week moratorium over her time with her mother, after which she spend supervised time with her mother for not less than two hours each alternate weekend (with the mother to bear the costs of the same); she communicate with her mother each Wednesday between 5:30 pm and 6:00 pm (with such call to take place on speaker phone and to be in his presence) and that the mother be at liberty to send the child cards and gifts for her birthday and Christmas on the basis that he be permitted to read any card and open any gift in order to ensure it is appropriate for the child to receive.
The orders advanced on the father’s behalf also contained provisions by which, after the expiration of not less than twelve months from when supervised time started, the child’s time with her mother would be unsupervised. However, he also proposed that such unsupervised time only start if the mother established, via provision of a report to him, that she had engaged in cognitive behavioural therapy with a nominated psychologist for twelve months and had changed the various beliefs particularised in the proposed orders. The father’s position was that, if the mother failed to provide the specified report, the child’s time with her mother should remain supervised.
There was no change to this position after the mother was granted leave, on 15 January 2020, to adduce additional evidence. There was no change to this position after the mother was granted leave, on 24 January 2020, to adduce evidence of her proposal that the child continue to live with her but spend unsupervised time with her father. His position remained unchanged when the trial resumed in August 2020.
The mother[8]
[8]In her Amended Response filed 12 March 2018.
The mother initially sought that the child live with her, that she be accorded sole parental responsibility for the major long-term issues for the child and that the child spend no time with and receive no communication from the father. She also sought that the child’s name was placed on the Family Law Watchlist and that the parents be restrained by injunction from removing, attempting to remove or causing or permitting the child to be removed from the Commonwealth of Australia.[9]
[9]As outlined in the Case Information document filed 12 February 2019.
These orders were proposed despite the mother telling Ms E on 9 January 2019 that, irrespective of whether the father was found to pose an unacceptable risk to the child or not, the child’s time with him should be supervised. She advanced this position because of the behaviours she said the child displayed: namely, frequent nightmares, frequently hitting her and difficulty in separating from her to attend kindergarten. She explained that her position about the child’s time with her father had changed from her earlier proposal that the child spend no time with him because she had come to see that it was safe for the child to spend supervised time with him.
However, in her affidavit sworn on 21 January 2019, the mother proposed that she be accorded sole parental responsibility for the major long-term issues relating to the child (with an associated obligation to consult with the father about decisions to be made in the exercise of that responsibility), that the child live with her and that she spend no time and have no communication with her father. That this was her position was confirmed at the commencement of the trial by Counsel who then appeared for her. That is: this was the mother’s position during the father’s cross-examination.
However, when the matter returned for hearing and the mother was called to give evidence on 28 February 2019, she said, in response to the first questions asked of her by Counsel for the father, that, having agonised about it, she proposed that the child spend supervised time with her father on an indefinite basis: that is, the father and his legal representatives first learned of this change of position at this time. When cross-examined about when she had made the decision that indefinite supervised time with the father – rather than no time with him – was in the child’s best interests, the mother said that she had formed that view when the child recommenced spending supervised time with her father on 23 February 2019. She also said that her position vis-à-vis the child’s time with her father had not changed because of any of the evidence given by the father when cross-examined, nor because anything he said when cross-examined had reassured her, nor because anything he said persuaded her that he loves the child, nor because she thought that the child would benefit from a relationship with him.
After having obtained leave to adduce additional evidence on 15 January 2020, the mother’s position remained that orders should be made for the child to live with her and spend supervised time with her father.
However, on 24 January 2020, I granted her application to adduce evidence of her current proposal for parenting orders[10] which, by way of broad summary, included that: the child live with her; the parents have equal shared parental responsibility for the major long-term issues relating to the child and that the child spend unsupervised time with her father on alternate weekends, from Friday afternoon until Sunday afternoon, and, from April 2020, on a week-about basis during the school holiday periods.
[10]See the document which was marked Exhibit 1 in the Application in a Case filed 23 January 2020 and in respect of which the mother was granted leave to re-open her case for the purpose of adducing the same in the final proceedings; see also the mother’s affidavit filed 23 January 2020, in respect of which the same leave was granted.
Any thought that the mother’s proposed orders as advanced on 24 January 2020 meant that she had changed her position about her assertions that the father has previously harmed the child – by sexually abusing her and/or subjecting her to female genital mutilation, or cutting, by circumcising her or having her circumcised – was immediately dispelled by her Counsel who submitted that the mother continued to press for positive findings about these allegations: that is, the mother’s case then (following her successful application to re-open her evidence) was that the Court should positively find that the father has sexually abused the child and/or is likely to sexually abuse her in the future and/or has acted to circumcise her or cause this to occur and/or is likely to act to cause this to occur in the future but, nevertheless, should make orders that the child spend unsupervised time with him, overnight on alternate weekends and for block periods of time during school holidays.
On 12 August 2020, Ms Pendergast of Counsel, who then appeared for the mother, initially provided a broad overview of the orders sought by the mother: namely, that she have sole parental responsibility for the major long-term issues relating to the child (with an associated obligation to consult with the father about decisions to be made in the exercise of that responsibility), that the child live with her and spend unsupervised time with her father, including overnight time on alternate weekends, increasing over time to consecutive night blocks of time during the school holiday period at the end of 2020. Ms Pendergast subsequently provided a written proposed Minute of the orders the mother sought. I do not intend here to repeat the terms of the orders proposed by the mother as being in the child’s best interests, other than to note that, if made, they would have seen the child continue to spend unsupervised weekend time with her father, blocks of five consecutive nights during the December 2020/January 2021 school holidays and thereafter, half of each school holiday period.
The Independent Children’s Lawyer
During the course of submissions following the close of the evidence in April 2019, Counsel for the Independent Children’s Lawyer submitted that orders should be made for the child to live with her father; that he should have sole parental responsibility for major long-term issues relating to her (attended by the obligation to inform the mother about such decisions) and that, after a moratorium of a month, the child spend supervised time with her mother every alternate weekend for an eight month period (on the proviso that the mother comply with certain prescribed matters particularised in the proposed orders); and that, thereafter, the child spend unsupervised time with her mother each alternate weekend (from 10:30 am Saturday until 3:00 pm Sunday) and for the first five days in each school holiday period starting with the June/July 2020 school holiday period.
There was no change to this position after the mother was granted leave on 15 January 2020 to adduce additional evidence. As was the case for the father, there was no change to this position after the mother was granted leave, on 24 January 2020, to adduce evidence of her proposal that the child continue to live with her but spend unsupervised time with her father. The submissions made by Mr McGregor of Counsel for the Independent Children’s Lawyer on 13 August 2020 included that the Independent Children’s Lawyer continued to rely on the submissions previously made. He submitted, in essence, that despite the evidence adduced as a consequence of the various orders permitting re-openings of the proceedings, nothing about the mother’s attitude toward the father or her beliefs about his alleged behaviour toward the child had really changed, such that the orders advanced by the Independent Children’s Lawyer as being in the child’s best interests remained virtually unchanged to those previously proposed.
Whilst I generally accept that it appeared that the mother had not changed her view or beliefs about the allegations previously made against the father, her actions over the weekend of 24-29 January 2020, her change of position vis-à-viz the orders sought and her facilitation, since August 2020, of the child spending unsupervised overnight time with her father has, I think, demonstrated that – at least whilst under the eye of the Court in the sense that the proceedings remained unfinalised – she is capable of facilitating the child spending regular unsupervised time with her father[11] and that the parents are capable of communicating sufficiently to ensure this occurs.
[11]There being no evidence before the Court to establish that the mother has failed to comply with the terms of the interim parenting order made by consent in August 2020.
The parents: credit and other findings and conclusions
The fundamental change to the orders proposed by the mother resulted in Counsel for both the father and the Independent Children’s Lawyer submitting, in essence, that, in acting as she had, the mother was disingenuous, manipulative and lacked bona fides vis-à-vis the previously advanced allegations about the father’s asserted conduct toward the child. Whilst others may disagree, I am not necessarily persuaded that this is the case. Rather, I accept that, when faced with her belief that there was a very real prospect that orders may be made for the child to live with her father, the mother determined that she would simply have to propose – and ensure – that the child started to spend unsupervised time with the father so as to demonstrate that, whatever her beliefs, she is capable of promoting the child’s relationship with him, even if such promotion is limited to adherence to the terms of orders.
My acceptance of the mother’s evidence about her motivation in changing her position from advancing that the child’s time with her father should remain supervised to consenting to a series of orders that provided for the child to spend unsupervised time with her father – first for six hours each week and then for an overnight and day/s each weekend – does not change my assessment of the veracity, reliability and accuracy of her other evidence, especially in relation to the allegations of alleged abusive conduct by the father toward the child.
For reasons which follow, I have concluded that, particularly in so far as such allegations are concerned, the mother is not a witness whose evidence can be accepted as being truthful, reliable or accurate. I consider that she has, on occasions, quite deliberately omitted to give evidence of matters which would have placed other aspects of her evidence about the child’s alleged behaviours in a completely different context. I also consider that, on occasion, she deliberately acted to misinform and/or deceive service providers in order to achieve her goal of having the child (then three years and seven months of age) undergo an internal genital examination. I consider that she was either deliberately willing to discount, or incapable of preventing herself from discounting, evidence that was contrary to her views and asserted beliefs about the father’s asserted conduct toward the child.
The mother’s actions in consenting to the child spending unsupervised time with her father and, more recently, in proposing that her future time with her father should continue to be unsupervised and increase to encompass half of the school holidays have certainly caused me to question significantly the truthfulness of her often repeated assertions, when cross-examined, that she has, or has had, a genuine concern and/or genuine belief that the father has acted abusively toward the child in the manner she alleges. However, I also find myself unable to discount her evidence to the effect that, when faced with the prospect that the child may live with her father, she determined that she had to act to promote their relationship by providing the child to spend unsupervised time with her father on a weekly basis so as to attempt to avert such a prospect. That she has been able to do so does not, it seems to me, mandate a conclusion that she did not – or does not- hold a belief that the father abused the child.
As already noted, what it does, though, establish is that – whatever her beliefs about the father’s conduct toward the child – she is capable of acting to ensure the child continues to spend unsupervised time with him. In the absence of evidence to the contrary, I consider it open to me to infer that, however she has achieved it, the mother has been able to ensure the child has spent weekly overnight unsupervised time with her father since about mid-August 2020. Whilst her beliefs about the father may not have changed, her ability to ensure that the same does not result in denying the child the opportunity to spend unsupervised time with her father has – even if such change has been forced upon her by the prospect of the child moving to live primarily with her father.
Generally speaking, where the evidence given by the father contrasts with that given by the mother, I prefer his evidence to hers unless I otherwise specifically indicate to the contrary.
Before turning to consider the evidence relevant to the assessment of whether the father has circumcised the child or has had her circumcised or has sexually abused her or has acted in a manner which would persuade that, if she continues to spend unsupervised time with him she will be at risk of the same – which consideration remans necessary despite the mother’s proposal that the child spend unsupervised time with her father – I will outline some of the other matters I consider established on the evidence before me.
Some established matters
I consider the following to be established:
a)following the child’s return to live with her mother in D Town after the October 2014 sale of the former matrimonial home, the father consistently spent time with the child by travelling to D Town on at least a weekly basis (and, at times, more frequently than this) – such time was spent at either the home of the mother or the maternal grandmother or their respective environs and, on a handful of occasions, included overnight time; at times the father took the child on outings and, on occasion, both the mother and the maternal grandmother permitted the father to spend time alone with the child in each of their respective residences whilst they were at work; and
b)after the mother and the child moved from living with the maternal grandmother to living in their own accommodation in around May 2015, the father continued to travel to D Town at least weekly to spend time with the child – he often parked his car out the front of the mother’s home when he arrived in the early hours of the morning after travelling there from work and, on occasions, slept in his car so as not to disturb the household; and
c)in the period from about June 2015 until about May 2016, the father continued to spend time with the child at the maternal grandmother’s home – sometimes in her mother’s presence and sometimes in the mother’s absence; and
d)from about May 2016 onwards, the father spent time with the child, on no less than about 10 occasions, at the maternal grandmother’s home (usually on Mondays) from about 7.00 am/8.00 am until 3.30 pm/4.00 pm whilst both the mother and the maternal grandmother went to work; further, he stayed overnight with the child at the maternal grandmother’s home on a few occasions when she was away – there is nothing in the evidence given by both the mother and the maternal grandmother to suggest that the child made any complaint about the father to them when she returned to their care after these occasions or that she then displayed any of the behaviours the mother recounted in her evidence as having later arisen; and
e)in order to facilitate the child spending time with her father, he was given a key to the mother’s home; and
f)when, in about early September 2016, the mother asked the father to agree to spend time with the child on a fortnightly (rather than on a weekly) basis so that she could spend weekend time with their daughter, he was very upset, felt her proposal was unfair and was concerned that she was trying to “take” the child away from him; and
g)before the child spent overnight time with her father on 25 September 2016, she had had a couple of overnight visits with him in that, on at least one occasion, he stayed with her in her maternal grandmother’s home (when her grandmother travelled to Brisbane) and she had also spent an overnight with him and his then girlfriend at BB Town – there is no suggestion that the child was distressed in any way or made any complaint to her mother or maternal grandmother about her care at this time; and
h)the father has consistently denied acting toward the child in any manner that has been harmful to her; he has consistently denied that he has acted to cause her to be circumcised (either by performing such an act personally or by organising for another person to carry it out); he has consistently denied that he wanted the child to be circumcised; he has consistently said that he told the mother and the maternal grandmother on numerous occasions that he would not agree to the child undergoing any such procedure; he has consistently denied sexually abusing the child at any time and in any way; and
i)despite the events of 26 September 2016, the child continued to spend time with her father until 13 November 2016; and
j)the results of blood and urine tests done in relation to the child in about mid-November 2016 were negative for HIV and other sexually transmitted diseases; and
k)the child made no disclosures to police that her father harmed her in any way when she was interviewed on 15 November 2016; and
l)the father has never been contacted by the police about any allegations relating to the child; and
m)the child made no disclosures that her father had sexually abused her or harmed her in any way when she attended counselling with Ms DD at CC Centre between 28 November 2016 and 31 January 2017; and
n)the child made no disclosures that her father had sexually abused her or harmed her in any way to any of the staff at the kindergarten at which she attended or to any teacher at the school she subsequently attended; and
o)the child has not made any disclosure that her father had sexually abused her to any medical practitioner upon whom she has attended, nor to any counsellor upon whom she has attended, nor to Ms S (upon whom she attended between about 5 May 2017 and 23 March 2018), nor to Ms T (a psychologist upon whom she attended between 21 June 2018 and 13 September 2018), nor to Ms H, the psychologist upon whom she has attended since 7 February 2019; and
p)the child made no persuasive disclosure that her father had harmed her in any way when she spoke to Ms E on 6 December 2017, 9 January 2019 and 27 February 2020 and demonstrated unremarkable behaviours when interviewed on these occasions; and
q)whilst the mother and maternal grandmother reported that the child had consistently behaved in a dysregulated manner, the kindergarten at which she attended made no mention of any such behaviours in the transition report prepared to facilitate her transition to Prep; and
r)whilst the mother and maternal grandmother reported that the child had consistently behaved in a dysregulated manner and had consistently displayed “sexualised behaviours” since no later than 26 September 2016, no mention of such behaviours has been made to any significant extent by those who previously supervised her time with her father (other than a report on 29 March 2019 that she was inclined to hit and punch him and be angry with toys), her kindergarten or any of the counsellors or psychologists upon whom she has attended; and
s)whilst the child spent unsupervised overnight time with her father on 24 January 2020, she was so distressed that he became distressed and contacted the mother (who had provided an undertaking not to contact the child in any way from the rising of the Court on 24 January 2020 until 29 January 2020) and, subsequently, the child spent time with him and her mother over that weekend; and
t)when interviewed by Ms E on 27 February 2020, the child indicated that fishing and going to the movies and play centres with her father had been “fun”; when asked, she shook her head to indicate that there was nothing that was not fun about this time and that there was nothing that she wished was different about her father.
The formative events of 25 and 26 September 2016 and the aftermath of the same
Before I turn to discuss the events of 25 and 26 September 2016, it is relevant to record some of the evidence about the child’s medical presentations in the months preceding that weekend. In particular, it appears that she had been having difficulties associated with her toileting.
The child’s pre-25 and 26 September 2016 toileting issues
I accept that, when the mother took three year old the child to see Dr Q at R Medical Centre on 31 May 2016, she reported that the child had not been wanting to drink (for a few months and worsening); held her urine for the whole day and had “accidents” on the floor; refused to go to the toilet and was not passing stool every day and that her childcare said she never passed stool there. She also told Dr Q, in effect, that the child had been rubbing the toilet paper hard on her vulva (despite her [the mother’s] efforts to teach her to use the paper to pat her genitals) and that it was red and sore looking.
Dr Q also recorded that the child was then attending day care four days per week and socialised well; she was seeing her father every week and her parents were on good terms; she had tantrum/s every day; nil aggression and was very stubborn.
According to Dr Q’s notes, her examination of the child that day revealed erythema (redness of the skin or mucous membranes) around the child’s vulva and anus. She recorded that the mother was using Bepanthen for this. She referred the child to Dr V (a paediatrician located at Suburb AF in Brisbane).
Following a consultation, Dr V informed Dr Q on 8 June 2016 that the reported problem was urinary incontinence and that the child had been holding on to her urine to the point of overflow; he also noted she had reportedly been asking her mother to use a wet towel to wipe her bottom. He recommended a trial of Osmolax, with follow-up to occur via FaceTime in the future.
The matters recorded in the notes and reports of Dr Q and Dr V at this time seem to me to contradict the evidence given by the mother and the maternal grandmother to the effect that the child had been completely toilet-trained from the age of no later than about 2½ years of age.
Despite being the parent who took the child to each of these appointments, the mother made no mention of the same, or the issues considered in them, in her affidavits. This may well have been unremarkable, except that she and the maternal grandmother both appeared to place significant weight – and to seek that the Court place significant weight – on their reports that, after spending overnight with her father on 25 September 2016, nearly three and a half year old the child urinated on her grandmother’s lounge room floor on 26 September 2016. That is, the effect of their evidence was, in essence, that something happened to the child whilst in her father’s care on 25 and 26 September 2016 to cause her – a child who they said had been completely toilet-trained for some time – to spontaneously and unexpectedly urinate on her grandmother’s lounge room floor.
That the child had been seen by Drs Q and V in May/June 2016 about the issues recounted above seems to me to place the reported ‘urinating on the floor’ event of 26 September 2016 in an entirely different context to that advanced by the mother and maternal grandmother. Absent the contents of the documents authored by Drs Q and V, the Court would have been left to proceed on the basis that a nearly three and a half year old child who had been completely toilet-trained for no less than about a year suddenly urinated in the manner described; with the benefit of the contents of the documents authored by Drs Q and V, though, that event takes on a different hue and falls to be seen in a different context.
In addition, the mother made no mention in her affidavits of the fact that, as at late May 2016, the child had been rubbing her genitals hard with toilet paper. That she had been doing this – when considered with Dr Q’s evidence when cross-examined to the effect that this could have resulted in the child’s genitals being red and sore and could even have caused some minor bleeding – is relevant to the assessment of the mother’s evidence that, when she put the child on the toilet almost immediately after her return from her father’s care on 26 September 2016, she saw two drops of blood in the toilet; it is also relevant to the assessment of the maternal grandmother’s evidence to the effect that, when she put the child on the toilet later that day after she had urinated on the floor of her lounge room, she saw dark blood in the toilet.
Neither the mother nor the maternal grandmother took the child to a doctor on 26 September 2016 or told any agency associated with protecting children from harm (such as the police or the Department of Child Safety, Youth and Women) that day about their asserted observations that day. Given their inaction, I am left to wonder whether they did not do this because they knew of a possible cause for their asserted observations: namely, the child’s hard rubbing of her genitals with toilet paper – although I also note that both of them said that they did not see any blood on the toilet paper when each of them wiped the child dry.
The other possibilities are that neither the mother nor the grandmother in fact saw any blood in the toilet on the respective occasions on which they said they did or that, having seen blood and observed the child to act in the manner each recounted and having supposedly immediately concluded that the child had been harmed by something her father had done to her whilst she was in his care, neither acted immediately to have any potential cause of the same investigated. In so far as the last possibility is concerned, it is relevant to note that the maternal grandmother’s evidence, when cross-examined about the events of 26 September 2016, included that she had yelled and screamed at the mother about the mother’s decision to bring the child to her home rather than take her for medical attention and that the mother had told her that the child’s behaviour on returning from her father’s care was because she had had difficulty separating from her; on the maternal grandmother’s telling, the mother told her not to over-react. This account is, it seems to me, very different to the mother’s evidence of her reported views and behaviours following the child’s return to her care on 26 September 2016 – as discussed in greater detail below.
25 September 2016: the child spends overnight time with her father at his home in Suburb AG
It is uncontroversial that, on 25 September 2016, then nearly three and a half year old the child spent overnight time with her father at his home in Suburb AG. The mother’s evidence, in effect, was that, whilst she was very nervous and anxious about the child going so far away overnight, her mother had told her that the child would have to go sooner or later and so she might as well go then – consequently, in order to ensure the child had a good time, she and the maternal grandmother told the child she would have a good time.
I accept that, during this overnight visit with her father, the father sent both the mother and the maternal grandmother photographs of the child in his home; I also accept that, when the child became distressed during the night and told him that she missed her mother, he telephoned the mother (at about 11.00/11.30 pm). I accept the child was upset and crying when her father called her mother; I accept that, after the mother reassured her, the child settled and, after the call ended, went back to sleep. I consider that these actions by the father were entirely appropriate.
The mother’s evidence about these events, when cross-examined, was to the effect that the child’s distress during this call was something that indicated to her that her father had hurt her that evening. She also said she genuinely believed that the father had circumcised the child that night or had had someone else perform an act of cutting and this was the reason the child was crying, upset and calling out for her over the telephone.
The mother’s asserted belief in this respect seems to me to dismiss completely the much more likely possibility that the child – then spending only her second night away from her mother’s care – simply missed her mother’s presence and comfort and was seeking that: a possibility that, on the maternal grandmother’s evidence as referred to in paragraph [49], the mother herself recognised contemporaneously with the child’s return to her care that day.
26 September 2016
I accept that the mother called the maternal grandmother very early on the morning of 26 September 2016 to tell her about the father’s call the night before. I also note that the maternal grandmother said that the mother told her during this telephone call that she thought the child was distressed because she was away from her and staying at her father’s home for the first time. That she did so – as I accept she did – persuades me not to accept the mother’s more recent evidence about the belief she asserted she formed at the time. I think it much more likely that, on 25 September 2016, she simply thought the child was upset because she was away from her and staying at her father’s home for the first time. I also think it much more likely than not that the mother’s asserted belief about what she alleged happened on the night of 25 September 2016 developed over time as she reflected back on events and started to see them through a prism that suggested that the father posed a risk to the child: that is, her contemporaneous views and conclusions have been over-ridden by her subsequent reflections.
The child returns to her mother’s care
I generally accept the father’s evidence that the child told him on the morning of 26 September 2016 that she wanted to stay with him, wanted to spend time with him and wanted to come back and see him at his home. I also accept that she was upset and crying in the car on her return to her mother’s care that morning. I accept that she did not want to get out of his car when they arrived at the mother’s home. I accept, as more likely than not, that, faced with a distressed the child, the mother asked him – as he said she did – “What have you done to her? What have you said to her?” I accept that the father told the mother that the child was crying because she did not want to go back to D Town and wanted to spend time with him. I accept that the mother removed the child from the car and, when she told the father to leave, he did.
On the mother’s account, the father looked at her with clenched teeth and like he wanted to kill her; on his account, this was not the case. Whilst I prefer his account to hers, I also think it highly likely that this is another example of the mother’s retrospective recall of the father’s behaviours. It is also, I think, an example of the mother’s propensity to “read into” or infer motivations or intentions from behaviours.
What happens after the father leaves?
The mother’s evidence is that it was at this time that “her instincts” told her that something was wrong. She said she took an upset the child straight to the toilet and put her on it and that, as the child was urinating, she noticed two or three drops of blood going into the water: her affidavit evidence was that she felt “sick to the stomach” and “the first thing that came to mind was that he had done something.”[12] However, when she wiped the child’s bottom, there was no blood on the toilet paper.
[12]Affidavit of the mother filed 21 January 2019 at [53].
I accept the father’s assertion to Ms T when he spoke with her in 2018 that he was certain the child had no injuries when she left his care that day; I also accept that, if he had been aware of any injury, he would have taken the child to the hospital immediately.
The mother also said that she thought about the father’s and paternal grandmother’s words about female circumcision (“it’s just a little scratch, a little cut”); she said she did not want to believe he had done something, was in shock and shaking and felt sick to the stomach. Despite her evidence, when cross-examined, to the effect that she knew immediately when the father returned the child to her care on 26 September 2016 that he had harmed the child and that she felt this with every fibre of her being, the mother did nothing about this asserted belief, other than to take the child to her grandmother’s home.
In her affidavit, the mother outlined that she then got the child off the toilet and undressed her and, as the father had told her that she would not get in the shower for him, tried to put her in the shower: she said that, before she got the child into the shower, the child started licking her “obsessively” all over the exposed parts of her body and lifted her shirt to lick her tummy; whilst she distracted her so she would stop, she said this made her feel sick to her stomach ; she described that she was shaking and scared and traumatised and said that her “motherly instinct” was to take the child to the doctor right then and there. Despite this, it is clear that she did not take the child to the doctor until 27 September 2016: an omission which she said in her affidavit caused her to feel overwhelming guilt.
The aspect of the mother’s evidence about her “motherly instinct” has to be seen in the context that, when she did take the child to a doctor on 27 September 2016, she did not tell that medical practitioner anything about the child’s asserted behaviours, or her asserted observation of the blood in the toilet.
The mother said that the child complained of a sore bottom constantly on 26 September 2016; she said the child was visibly extremely distressed, distraught, shaking, crying hysterically and very clingy. The mother also said that she tried to check the child’s “vagina” due to her complaining, but the child was too distressed to open her legs for her.[13] On the evidence before me, this was the first occasion on which the mother tried in some way to inspect the child’s genitals.
[13]Affidavit of the mother filed 21 January 2019 at [55].
The mother takes the child to the maternal grandmother’s home
The maternal grandmother’s affidavit evidence was that the child was very distressed and very labile when brought to her home; she described the child walking in, standing on her floor rug and urinating down her legs. Whilst the mother’s evidence was that the child was crying hysterically at the time, the maternal grandmother said, when cross-examined, that she was not crying.
The maternal grandmother also said that there was a “look of terror” on the child’s face at the time – in hindsight, she believed that the child was in shock, her eyes were glazed over and she stared straight ahead.[14] This aspect of the maternal grandmother’s evidence provides an insight into the manner in which she has interpreted the child’s presentations; it is apparent, it seems to me, that she and the mother share a willingness to read motivations and/or consequences into “looks” by either the father or the child.
[14]Affidavit of Ms W filed 10 January 2019 at [34].
After the child urinated on the floor, the maternal grandmother took her to the toilet: she said she did so in case the child needed to urinate further. Her affidavit evidence was that, when she took the child to the toilet, she noticed a drop of very red blood in the toilet. She said that, whilst this scared her, as there was no further blood on the toilet paper she had used to wipe the child, she reasoned with herself that maybe she had not noticed if the mother had previously used the toilet. Inexplicably, she did not immediately tell the mother what she said she had seen.[15]
[15]Affidavit of Ms W filed 10 January 2019 at [35].
During her cross-examination, the maternal grandmother accepted that she knew that the mother had not used the toilet before she took the child to use it. I found her attempts to explain her reasoning in this respect to be confused, confusing and illogical. Her evidence during this aspect of her cross-examination and the fact that, despite what she said she clearly regarded as the child’s unusual behaviour and presentation that day, she did not tell the mother of her asserted observation have combined to lead me to conclude that I think it unlikely that she in fact saw inexplicable blood in the toilet at that time.
The maternal grandmother said the child cried a lot, was extremely sensitive, emotional and clingy; she would not talk and remained sensitive, emotional and clingy for several weeks.[16] She also said that, that afternoon, the father was excessively insistent about coming back to D Town to take the child to the beach for a swim and she told him not to come back.[17] Her evidence about the father’s attempts to take the child to the beach provides a further example of her willingness to implicitly impute sinister motivation into the father’s actions.
[16]Affidavit of Ms W filed 10 January 2019 at [36].
[17]Affidavit of Ms W filed 10 January 2019 at [37].
In her affidavit, the mother said that she and the maternal grandmother discussed the child’s licking behaviour quietly and in a room away from the child; she said the maternal grandmother told her she recalled seeing the father sitting on a bed at her home, licking a fully clothed the child on the face and neck and that she had removed the child from the room as she was particularly concerned about the behaviour on that day.[18]
[18]Affidavit of the mother filed 21 January 2019 at [57].
In her affidavit, the maternal grandmother said that, before 26 September 2016, she had seen the following behaviours between the father and the child:
a)he often sat on the couch positioned at the child’s feet and would rub her legs up and down and she (then not yet three and a half years of age) did not object;[19] and
b)he licked the child when they were sitting on the couch and on the patio – something she said she had seen almost every time the father came to stay and spend time with the child;[20] and
c)on one occasion she saw him and the child sitting with crossed legs facing each other on the end of the bed and, having heard the child say “Don’t Daddy!”, she looked into the room and saw him licking the child on the side of her neck and up to her face: when she questioned him, he said that they were just playing “doggies” – whilst she felt uncomfortable, she thought it might have been a “cultural” thing.[21]
[19]Affidavit of Ms W filed 10 January 2019 at [29].
[20]Affidavit of Ms W filed 10 January 2019 at [30].
[21]Affidavit of Ms W filed 10 January 2019 at [31].
When cross-examined about her actions following her asserted observations of this behaviour by the father, the maternal grandmother accepted, in essence, that, despite allegedly being contemporaneously concerned about the same, she had not made any complaint about them to any external authority.
I accept the father’s evidence to the effect that his rubbing and massaging of the child’s legs was a sign of affection, love and respect; I am not persuaded that in doing this the father was abusive of the child. I also accept, on balance, his evidence that he never licked the child in the manner alleged and that he had never played “doggies” with her in the manner alleged. Even if the father had licked the child on the side of her face in play, I am not persuaded that such an action between a parent and a not yet three and a half year old child is something inherently abusive.
The maternal grandmother said the child was very agitated on the evening of 26 September 2016: she described her sitting on the couch, wiggling her legs up and down. It seemed to me that, during her cross-examination, the maternal grandmother appeared to place particular significance on the child moving her legs in such a fashion. I consider this to be a further demonstration of the maternal grandmother’s propensity to ascribe sinister meaning to innocent behaviours.
I accept that the mother and the child stayed overnight at the maternal grandmother’s home on 26 September 2016. The mother said the child experienced acute nightmares commencing that night and each night thereafter for nearly a week: she screamed “No mummy”; she screamed in her sleep or woke up screaming and cried inconsolably for up to an hour around midnight; she kicked and threw herself onto the tile floor; rocked back and forth while crying hysterically; tried to pull her hair out and sometimes succeeded in pulling some hair out; she was extremely distressed, distraught and inconsolable, crying, screaming and shaking – she violently attacked her mother and pushed her away.[22] According to the maternal grandmother’s affidavit evidence, the child called out in her sleep and cried and her mother needed to get up and comfort her. She said that these nightmares continued when the mother and the child stayed with her after this date.[23]
[22]Affidavit of the mother filed 21 January 2019 at 9 [62].
[23]Affidavit of Ms W filed 10 January 2019 at [38].
The mother said that, from 26 September 2016 onward, the child took her underpants off each day and night and refused to allow her mother to put them back on her.[24] She clearly attributed something sinister to this behaviour and also clearly linked it casually to the father’s behaviours toward the child when she stayed with him on 25 September 2016.
[24]Affidavit of the mother filed 21 January 2019 at [63].
What happened on 27 September 2016?
The mother said that, after she and the child arrived home from the maternal grandmother’s house on 27 September 2016, she picked up her daughter’s knickers to put them in the wash and noticed a small amount of dried blood on them. She said she was in shock and “did not talk to anyone about it and subconsciously shut it out.”[25] That is, despite, on her account, having seen blood in the toilet the day before, the mother did not contact her mother (the maternal grandmother) to discuss what she said she then discovered and did nothing to contact any external authority to report this asserted discovery: her account is that “eventually” she told hospital staff about the blood on the child’s knickers when she took the child there for an examination in November 2016[26] – about two months later.
[25]Affidavit of the mother filed 21 January 2019 at [59].
[26]Affidavit of the mother filed 21 January 2019 at [61].
I accept that, later on the morning of 27 September 2016, the mother took the child to X Clinic to see Dr Y. Whilst she said she discussed the child’s behaviours with him,[27] this assertion is not corroborated in any way by the contents of the notes of that consultation. Instead, the notes of the child’s consultation contain no mention at all of the child exhibiting any difficult or upset behaviours at all, let alone as summarised in paragraph [73]; there is nothing to suggest that the mother told Dr Y about the child having any toileting issues.
[27]Affidavit of the mother filed 21 January 2019 at [60].
Whilst I note Ms E lacked confidence in the mother acting positively to promote the child having an ongoing relationship with her father if their time was unsupervised, the evidence is that, since the end of January 2020, she has facilitated the child spending regular unsupervised time with her father (including, from August 2020, overnight unsupervised time) – even if only because she appreciates that such facilitation supports her case for the child to remain living primarily with her.
I accept that, when interviewed by Ms E on 27 February 2020, the mother told her that she proposed that the child live with her and spend unsupervised time with her father each alternate weekend and for ‘block’ periods of time during the school holidays. I accept Ms E’s recounting that the mother still felt that the father posed a risk to the child’s safety and welfare. I accept she advanced her proposal for the child to spend unsupervised weekend time with her father on the basis that she thought this was the best way of mitigating any risk he posed to the child, without disrupting other aspects of the child’s life, given her firm belief that the Court was going to order a change in the child’s primary residence: that is, given her assessment, she thought her proposal better mitigated the risks to the child than seeing her live with her father.
I accept that the mother’s report then was that she felt that the child’s time with her father worked well when the child was in familiar places like the AR Centre, but did not work well when the father tried to get her to go into his car or go to his house. I accept the mother told Ms E that the Saturday time was going well, despite the child struggling to separate from her at changeovers: she also described working with Ms H to encourage the child to be more independent. I accept the mother also told Ms E that she had been seeing a psychologist to help her manage her response to the child spending unsupervised time with her father and that she continued to have an “internal struggle” about this and the prospect of the child spending overnight time with him.
Given that the mother continued to seek orders in the terms advanced by Ms Pendergast, I can only assume that she has concluded that, with the benefit of assistance from Ms P, she will be able to manage this “internal struggle” so as to be able to continue to facilitate the child spending regular unsupervised overnight time with her father if her daughter remains living primarily with her.
The father: the relevant s 60CC considerations[83]
[83] Sections 60CC(3)(b), (c), (ca), (f) and (i) of the Family Law Act 1975 (Cth).
I accept that, in about May 2015 (after the mother and the child moved to live in rented accommodation) the father told the mother that, whilst he did not care if she had a boyfriend, he would hurt any man who hurt the child.
Ms E’s evidence
I accept that, when he was interviewed by Ms E in December 2017, the father told her that he had not experienced the child behaving in the manner described by the mother (that is: nightmares, anxiety around toileting or wedging her underwear up her bottom) but remembered her to be a happy girl who played and had a good sense of humour and a strong personality like her mother.
I accept Ms E’s recounting that, whilst the father was initially overcome with emotion on seeing the child, he was then able to contain himself. I accept Ms E noted that he demonstrated ability at engaging in imaginative play with the child, was gentle in his behaviour toward her and worked collaboratively with her.
I accept the father told Ms E that he anticipated that, if the child moved to live with him, she would experience heightened emotions which he said he thought he would manage by talking to the child nicely and distracting her with an activity. I consider such response to fail to demonstrate that the father had really given any serious thought to how, practically, he would support the child through such an enormous transition. I accept he then anticipated it may take some months for the child to adjust to such a change in her living arrangements.
In her following report, Ms E opined that there continued to be nothing to suggest that the father’s capacity to meet the child’s developmental needs was impaired. However, she also noted – and I accept – that he was then untested in terms of being able to consistently meet the child’s day-to-day needs. This really remains the current position.
I accept that, if the child moved to live primarily with her father, he would rely on before/after school care and vacation care to assist with her care during his work hours. I accept he has completed a Triple P Online program and a AP Services Parenting Orders Program.
Whilst a consequence of the Orders made since late January 2020 has been that the child has spent increased periods of unsupervised time with her father, it remains that he is untested in terms of meeting the child’s ongoing day-to-day needs in the same way as he would be required to meet the same if she lived primarily with him: their time together to date has only occurred on weekends and the father has not yet been required to manage aspects of the child’s parenting such as consistent attendance at school, homework, participation in extra-curricular activities and the like.
Given the events of the 2020 Australia Day weekend, Ms E’s expressed reservations about whether the father’s completion of the Triple P Parenting programme was likely to have been able to prepare him for the likely adverse responses she foresaw the child exhibiting if an order was made for her to live with him and her opinion that, given his inexperience in parenting the child when she was in a heightened emotional state, he was likely to be out of his depth proved prescient.
Further, her earlier evidence (when cross-examined) to the effect that, whilst the father had appreciated that the child moving to live with him would be a very hard and difficult transition, he might have lacked insight about what he would actually need to do to respond to such a situation seemed particularly pertinent to the consideration of his actions over the Australia Day 2020 weekend.
When interviewed by Ms E on 27 February 2020, the father confirmed to her that the child had been distressed at times when she spent time with him during the January 2020 weekend. He told her the child either directed him back to where she knew her mother was staying, or would not stay overnight with him, or would not leave with him once he returned her to her mother’s care: he also acknowledged that the child’s presentation caused him distress and he did not like seeing her in such a state. I accept Ms E’s report that the father cried as he told her about this.
I accept Ms E’s account that the father “impressed as unprepared” for the child’s emotional response to spending time with him that weekend and that his only plan had been to do what the child wanted. I also accept that the father was unable to tell Ms E what he may have done differently about the child and her emotional presentation. I accept the father indicated to Ms E that he understood the importance of him being able to better regulate his own emotions but, despite this, he continued to speak about his struggle in seeing the child upset, not wanting to see the child like that or be responsible for it: I also accept that he continued to cry as he told Ms E about this.
Whilst I accept that the father told Ms E that if the child was ordered to live with him or spend substantial time with him and was similarly distressed, he would have to be strong and get himself together, I also accept that he reiterated to her that he worried about the child’s presentation and indicated that he often found it hard not to acquiesce to her emotional presentation and requests.
I accept that, to Ms E, the father remained concerned that the mother would turn the child’s comments to her about their time together into something else. He also reported, at that time, that his plans for their weekend time never happened because, after the mother proposed something in front of the child, the child did not then want to leave the shopping centre, at least for long periods of time. Such resistance has, it seems to me, been largely overcome given the evidence about the child’s time with her father between, say, February 2020 and mid-August 2020.
The likely effect of any changes in the child’s circumstances[84]
[84] S 60CC(3)(d) Family Law Act 1975 (Cth).
I accept that the child’s primary attachment is to her mother.
I accept that moving to live with her father would require the child to experience a complete change to her current living environs, her school and remove her from the daily interactions with her mother and the very frequent interactions with her maternal grandmother that have attended her life to date. In effect, her life would be completely turned upside down and, as submitted by Counsel for the Independent Children’s Lawyer, such change to her current living arrangements would be “traumatic” for her.
I accept Ms E’s evidence that changing the child’s living arrangements so that she lives with her father would be a very significant change for her, given that she has always lived with her mother and has only lived with her mother since separation. I accept that moving to live with her father would very likely negatively impact the child’s emotional well-being in the short-term in particular – particularly given the history of her time with him, that her previous supervised time with him had been attended by a number of hiatuses and that, as a consequence of the historical parenting arrangements, she does not have the lived experience of him as the person undertaking her full-time parenting.
Ms E previously opined, in essence, that the child’s historical care arrangements and the impact of the same on the child’s relationship with her father meant that it was unlikely he would be able to provide her with the comfort she would need if she was to live with him and be required to adapt to that circumstance. I consider this opinion to be particularly important, especially given that, despite seeking, in 2019, orders that the child live primarily with him and that a moratorium be imposed over her interactions with her mother for a period to enable her to settle into his care, the father proved himself incapable of caring for and comforting the child, without recourse to the mother, when she went into his care as a consequence of the 24 January 2020 order.
Whilst the child has consistently spent time with her father in the manner outlined earlier in these Reasons and whilst I accept Ms H’s report (as at 14 January 2020) that the child had overall given a positive account of her supervised time with her father after an initial adjustment phase and note that she has since mid-August 2020 spent unsupervised overnight time with him, I still think it more likely than not that the child would face significant emotional struggles if she was to move to live primarily with her father.
That the father was unable to manage his own emotional response to the child’s upset and distress on that occasion and that he presented as he did to Ms E in February 2020 when discussing such issues suggests to me that it is highly likely that he would struggle significantly to appropriately support the child through the distress, upset and these significant emotional struggles that I think would inevitably accompany her moving to live with him.
Family violence
No Protection Orders have been made as between the parties.
I accept that, on 23 November 2016, a notifier told the Department that the mother had reported the father was violent during their marriage: that he had punched walls, would break glass, yelled, put his fist in her face and screamed at her, but never hit her.
When interviewed for the first time by Ms E in December 2017, the mother told her that the father had raised his voice at her and intimidated her by making threats to rape her, by causing damage to their property and putting his fists up to her face: she described this as a regular occurrence. She said there had been no actual physical violence toward her, but his reported behaviour caused her to be fearful of him, particularly given his martial arts ability which she said he reminded her about. She also told Ms E the father had attempted to intimidate and manipulate her by threatening to kill himself.
When he was first interviewed by Ms E in December 2017, the father told her that he and the mother argued regularly about his work and that she blamed him for their financial situation; he said he tended to be more passive and the mother was the more vocal; he denied screaming or name-calling but conceded that there was one occasion when, in frustration, he kicked the wall: he denied any other physical violence or intimidating behaviour. The father denied clenching his fists and getting up close and into the mother’s personal space: he admitted yelling at the mother at times, but said that, when they argued, he usually walked away or went silent.
The mother said that the father threatened to rape her on three occasions during their relationship and that she was fearful that he would carry through with the threats he made; in contrast, the father said that, during the relationship, he jokingly told the mother that he could rape her: he said that this was said during a playful conversation between them – he denied ever making that threat seriously. That the mother provided the father with a key to her premises after their separation to facilitate him caring for the child there whilst she worked persuades me that she was not fearful of him at that time.
I accept the father’s admission that he broke a glass picture frame by hitting it with his hand, which made it fall and break. I accept that the father has never physically struck the mother. I accept that the father yelled at the mother during the relationship. I accept his admission that he kicked the wall on one occasion after an argument with the mother about money and that, in doing so, he caused a hole in the wall - which he subsequently repaired after the mother left the home with the child.
Given that, after their separation, the mother returned to live in the same house as the father pending its sale and permitted him access to her home when she was absent from it and provided him a key to the maternal grandmother’s home to facilitate him spending time with the child there whilst she and the maternal grandmother were at work, I am sceptical about the mother’s assertions that she was generally fearful of the father during, and after the end of, their relationship.
Even if I am wrong in these conclusions, I note that the mother told Ms E in December 2017 that the parental separation ended “the violence” between them; she described an initially amicable relationship with the father during which she facilitated the child’s time with him – she also said that, whilst she made most of the decisions about the child’s care, she and the father had talked about the big things.
Given this, Ms E did not assess family violence and abuse as being current risk factors.
Any concern that this assessment was wrong is quelled by the mother’s behaviour (even on her account of the same) toward the father during the Australia Day 2020 long weekend.
Ms E’s understandable assessment that she found it difficult to envisage how these two parents could or would co-parent in the future needs, in my view, to be reconsidered in light of the events of the Australia Day 2020 long weekend and thereafter. Such events have persuaded me that the mother is perfectly capable of communicating and interacting with the father, and permitting him to communicate and interact with her, about the child if she perceives such communication is beneficial to her (the mother).
Given that I consider the father to have previously raised on a number of occasions that he would be happy to consult with the mother about the child and matters pertaining to her, I have concluded that he too is perfectly capable of communicating with the mother about matters relating to the child.
Parental communications, interactions and relationship
Whilst the mother told Ms E, during her second interview, that she would feel unsafe and would not know how to go about engaging in dialogue with the father, such reported concerns did not prevent her from engaging with him over the Australia Day 2020 long weekend.
I accept that the father has previously said that he wanted to co-parent the child with the mother. I also accept that he has previously identified that the child would be the one who would be most hurt if he sought revenge against the mother for what he regarded as her false allegations.
I accept that, in the period after 29 January 2020, the mother was generally likely distant but polite to the father at changeovers (even if she was subsequently critical in her affidavit about his actions); her evidence was that, whilst their communication was brief, she kept him informed about the child’s health. Whilst she also said that she had told the father in late July 2020 that she would prefer it if he did not approach her car at changeovers, but allow her to collect the child from him, I accept that the parents were able to agree to change the location of changeovers from about mid-May 2020 without the involvement of their respective legal representatives. I also accept the father’s evidence to the effect that the mother agreed to a request he made in late April 2020 to be able to speak with the child by telephone every Sunday, Tuesday and Thursday at specified times.
Further consideration: what orders are in the child’s best interests?
Allocation of Parental Responsibility
The presumption that it is in the child’s best interests that her parents have equal shared parental responsibility for her does not apply given the father’s admitted actions.
If the Court makes an order that the parties are to share parental responsibility for the child and the exercise of that parental responsibility involves making a decision about major long-term issues in relation to her, such order requires the decision to be made jointly by the parties.
Ms P’s evidence that the mother then appeared anxious about interacting with the father and was mistrustful of him because she was concerned for the child’s physical safety when with him predated the events of late January 2020 and thereafter.
My previous assessment that it was unlikely that these parents would be able to make decisions jointly about major long-term issues relating to the child has been changed by the events of the Australia Day 2020 long weekend and thereafter. Whilst the requirement of an order that the child’s parents have equal shared parental responsibility for decisions about the major long-term issues relating to her may well be attended by a risk of an impasse about the same, the mother’s change of position to seek an order for equal shared parental responsibility and her actions on the Australia Day 2020 weekend and thereafter in proposing the orders that she has persuades me that such risk is neither unacceptable nor insurmountable.
Even given the allegations made in this proceeding, the parents’ respective stances about the same and their previous lack of meaningful communication, I consider that both are capable of engaging in the type of communication necessary to facilitate joint decision-making: even if, on occasion, they may need the assistance of a third party to broker their discussions.
Despite her earlier representations about her inability and incapacity to communicate with the father, the mother has shown herself perfectly capable of doing so when it suited her. Her manifested capacity to communicate with the father and my concern that, absent the requirement to make joint decisions about major long-term issues for the child, the mother may make decisions which, practically-speaking, adversely affect the child’s ability to continue to spend regular time with her father so as to continue to develop an ongoing, meaningful relationship with him have combined to persuade me that, in this case, it is in the child’s best interests for her parents to have equal shared parental responsibility for the major long-term issues relating to her.
Living and spending time with orders
The difficulty in attempting to determine what to make of the mother’s most recent parenting proposal is, I think, starkly demonstrated by noting the following: when she spoke to Ms E in January 2019, the mother proposed that, even if the father was found not to pose an unacceptable risk to the child, the child’s time with him should remain supervised; however, her 24 January 2020 proposal was that, even if the father is found to pose an unacceptable risk to the child (a finding she continued to seek), the child’s time with him should occur on an unsupervised basis.
I accept the thrust of the submissions made by Counsel for the father to the effect that, in acting as she did with the maternal grandmother to undertake genital examinations of the child on the days on which she did, the mother acted in a manner that was harmful to the child, particularly given that, in the circumstances in which the second examination occurred and on the information known to the mother, there was no way that the father could have caused the child to suffer any damage to her genitalia that warranted her undertaking an examination of the same immediately before she implemented her decision to take the child to the hospital that evening. However, there is no evidence before me to suggest that the mother has, at any time after this examination on 24 November 2016, acted again to inspect the child’s genitalia.
The father’s position that behaviour of this nature would be likely to occur again unless the mother addresses the beliefs she asserted she held about his alleged actions toward the child is an entirely understandable and reasonable one. Whilst the mother’s change of position to propose that the child spend unsupervised time with her father has not been accompanied by any expressed change of her beliefs, the reality for the child is that – for reasons that may justifiably be seen as self-serving – the mother has in fact facilitated the child spending increasing amounts of unsupervised time with her father and proposes that, into the future, she continue to do so, as well as spend longer periods of consecutive nights in school holidays with him. That is, whilst the mother’s asserted beliefs have remained the same, her actions have changed.
I can certainly understand the reasons underpinning the submissions made by Counsel for the father that I would ultimately conclude that, because of the mother’s conduct vis-a-vis the allegations made against the father, the child will be at an unacceptable risk of suffering at least psychological harm if she continues to live primarily with her mother – such harm arising via exposure to the mother’s asserted beliefs that the father has sexually abused the child or caused her to be circumcised.
Whilst it is often said that it is necessary for a parent to change a belief that such parent has held about the other in order to ensure that a child is not exposed to their views and, thereby, harmed, it seems to me that the real issue is the likelihood of the child being exposed to the beliefs - rather than the parental holding of the same.
Whilst others may disagree, I have ultimately concluded that, provided (which I deliberately emphasise) that the mother continues to restrain herself and manage any emotional distress she may have about the child spending unsupervised time with her father in the child’s presence, in the manner discussed by Ms DD (as discussed in paragraph 213 above), the child will not be at an unacceptable risk of suffering psychological harm if she remains living primarily with her mother.
Given that I will make an order for the parents to have equal shared parental reasonability for the major long-term issues relating to the the child, I am required to consider, having regard to the reality of the situation for her and her parents and by way of a practical assessment of the feasibility of the possible parenting regimes, [85] whether her spending equal time with each parent is in her best interests and reasonably practicable. [86]
[85] See, for example, MRRv GR (2010) 240 CLR 461.
[86]Family Law Act 1975 (Cth) ss 65DAA(1) and 65DAA(5).
The geographical distance between the parents is the major, but not only, reason I have concluded that it is not in the child’s best interests to spend equal time with each of her parents. Additional reasons include that, in my view, equal time would simply be such a significant change for the child as not to be in her best interests at present, given her historical care arrangements and that it would simply not be reasonably practicable.
Whilst other may well have reached a different conclusion, I have ultimately determined that, provided (which I deliberately emphasise) the mother continues to facilitate the child spending regular unsupervised time with the father in accordance with the orders I shall make, the child’s best interests at the moment will be better met by continuing to live with her mother, rather than being required to undergo the very significant disruptions to all aspects of her life that would accompany her moving to live primarily with her father. In arriving at this conclusion I have also placed particular weight on my significant reservations about the father’s capacity to undertake consistently all of the day-to-day parenting tasks that he would be required to do if the child lived primarily with him.
However, having determined that the child will not be at an unacceptable risk of harm if her time with her father remains unsupervised, I accept Ms E’s opinion to the effect that the child should be afforded every opportunity to continue to form and build a meaningful relationship with her father. With this in mind and in order to minimise the possibility that, if their time together is attended by interruptions of the duration that would occur if the child spent only alternate-weekend time with her father during school terms, I have concluded that it is in the child’s best interests to spend time with him on all but the third weekend of every month during school terms, as well as for periods during the school holidays in the manner prescribed in the Orders set out at the commencement of these Reasons.
Whilst I appreciate that such an arrangement will limit the child’s time with her mother on weekends (as well as, possibly, imposing restrictions on her ability to engage in those extra-curricular activities which occur on a weekend), I have accorded priority to affording the child additional time with her father to ensure that the gains in their relationship, which I think are likely to have accrued during the course of these proceedings, are not lost after the same have ended. I have also taken into account that the child currently spends weekly overnight time with her father.
Overseas travel for holiday purposes
The mother has consistently maintained her opposition to the father being able to take the child to Country F. She maintained this even when she proposed, on 24 January 2020, that the father’s time with the child occur on an unsupervised basis. Her opposition to such travel is based on her assertion that she is extremely concerned about the child’s wellbeing and safety if she was to visit AB City, Country F or overseas and that she is “certain” the father will allow his mother and grandmother to have the child subjected to female genital mutilation or female genital cutting if she travels to Country F to spend time with them there.
Whilst I accept that it is highly likely that the child would benefit from the opportunity to travel to Country F to visit members of her extended paternal family, I am not persuaded that her best interests will be met by permitting her to undertake any overseas travel before 31 December 2025 (unless her parents otherwise agree in writing), at which time she will be a little over 12 ½ years of age.
I consider it much more likely than not that to permit the father to remove the child from Australia prior to then will almost certainly result in an exacerbation of the mother’s anxiety – a consequence I consider not to be in the child’s best interests.
Whilst it may be thought that it is in the child’s best interests to be permitted to travel overseas with her mother before 31 December 2025, the mother did not seek to be able to remove the child from Australia for travel purposes and, in any event, I think it more likely than not that to permit the child to travel out of Australia with her mother, whilst preventing her from travelling out of Australia with her father, would simply be productive of further conflict between these parents to which it is likely the child would be, directly or indirectly, exposed.
Leave to provide Reasons to specified authorities
Given my findings about the manner in which the mother acted to manipulate the D Town Hospital on 24 November 2016 in furtherance of her desire to have the child undergo an internal genital examination, I consider that her capacity to engage in manipulative behaviour in support of her views about what is necessary to ensure the child’s safety to be considerable.
Given this, it is appropriate that the parties are accorded liberty to provide a copy of these Reasons to the Department, the police and if he thinks necessary, the child’s school.
It is also appropriate and proper that each parent have liberty to provide a copy of these Reasons to any therapist engaged by either of them for their own therapy or to support the child.
Final comments about the terms of the orders to be made
In making the orders set out at the commencement of these Reasons, I have taken into account the recommendation that the mother attend counselling to assist her to cope and come to terms with my findings that the father does not pose an unacceptable risk of harm to the child. I also consider that it is in the child’s best interests that each parent have the ability to have another adult known to the child participate in changeovers so that, if they desire, each parent can minimise the occasions on which they are required to come into contact.
The orders to be made in relation to the child’s time with her father on his birthday take into account the reality of the travel required for them to spend time together – given this, no specific provision is made for in-person time when the father’s birthday falls on a school day and longer time is provided when it falls on a weekend.
The orders to be made in relation to the child’s time with her mother on her mother’s birthday take into account that it will always occur during the end of Term 4 holidays and the reality of travel when the child is in her father’s care at that time; they are fashioned as they are with the intention of giving the child the opportunity to wake up in her mother’s care on her mother’s birthday and to attempt to prevent her from feeling like she has to leave when she may feel like she has only just arrived.
The orders to be made specifically do not provide for the child to spend time with her mother on her (the child’s) birthday because she will likely be living with her on that day in any event: further, where the child’s birthday falls on a Friday or a Sunday, she will spend time with her mother on those days even if it that is a weekend on which the child will be spending time with her father; the disruption to the child’s time with her father which would be caused by an order requiring the child to travel to spend time with her mother on the Saturday she is in in her father’s care seems to me to outweigh the likely benefit to the child of the opportunity to spend time with her mother on that day.
To the extent that any other aspects of the parenting orders to be made are not the subject of particular discussion in these Reasons, I have concluded that the same are in the child’s best interests because such orders will, for example, enable both parents to be kept informed about her and her progress and will afford her the opportunity to maintain communication with each parent in the time between face to face interactions; the orders are also intended to ensure, as far as possible, that the child is protected from the harm which may be caused to her as a consequence of exposure to derogatory comments about each of her parents.
To the extent that the orders made do not include orders sought by either parent or the Independent Children’s Lawyer, that is because I have not been persuaded that the same are in the child’s best interests.
It would be remiss of me to fail to emphasise that I have ultimately concluded that it is in the child’s best interests to remain living primarily with her mother only because the mother’s January 2020 change of position and her implementation of the subsequent orders for the child to spend unsupervised time with her father has persuaded me that, provided the child continues to be afforded the opportunity to spend regular overnight unsupervised time with her father in the manner provided for in the orders set out at the start of these Reasons, the benefits to the child of moving to live with her father do not outweigh what I regard as the highly likely significant disruptions to her life.
Should, though, the mother be unable to continue to provide the child to spend time with her father, such conclusions may need to be revisited. In order to facilitate this if necessary, I have accorded the father liberty to apply in the circumstances outlined in that aspect of the order and I have also directed that, if practicable, any application by him in reliance on this liberty be brought immediately to my attention.
Whilst any such revisitation of the parenting orders set out at the commencement of these Reasons would, of course, depend on the evidence then adduced, it would obviously occur against a background where – as a consequence of these proceedings – the father’s time with the child has progressed from occurring infrequently under supervision (and with significant lacunae) to unsupervised, weekly overnight time and then as provided for in the orders set out at the commencement of these Reasons.
For the reasons outlined above, I consider that the orders set out at the commencement of these Reasons are the orders which are in the child’s best interests and proper.
I certify that the preceding five hundred and twenty (520) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 12 February 2020.
Associate:
Date: 12 February 2020
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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