Clifford and Miles
[2019] FamCA 41
•5 February 2019
FAMILY COURT OF AUSTRALIA
| CLIFFORD & MILES | [2019] FamCA 41 |
| FAMILY LAW – CHILDREN – Best interests – where the mother initially alleged that the father posed a risk of sexual harm to the child – where there is no objective evidence that supported the mother’s allegation that the father sexually abused the child – where the mother changed her position on the father posing a risk of sexual harm to the child during the final hearing –where the father contends that the mother falsely accused him of assaulting the child and is likely to do so in the future – where the father seeks that the child lives with him – where the father does not pose an unacceptable risk of harm to the child – where the child will benefit from a meaningful relationship with both parents – where there are some concerns about the mother’s capacity to facilitate the child’s relationship with the father – orders made for the parties to equally share parental responsibility – orders made for the child to live with the mother and spend time with the father. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 65DAC |
| Adamson & Adamson (2014) FLC 93-622; [2014] FamCAFC 232 Carlson & Fluvium [2012] FamCA 32 G & C [2006] FamCA 994 Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346 Mazorski & Albright (2007) 37 Fam LR; [2007] FamCA 520 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 |
| APPLICANT: | Ms Clifford |
| RESPONDENT: | Mr Miles |
| INDEPENDENT CHILDREN’S LAWYER: | Claremont Legal |
| FILE NUMBER: | PAC | 1653 | of | 2016 |
| DATE DELIVERED: | 5 February 2019 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 28, 29, 30 May 2018, 9, 10 August 2018 and 5 October 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Ford |
| SOLICITOR FOR THE APPLICANT: | Bowral Legal |
| COUNSEL FOR THE RESPONDENT: | Ms Haughton |
| SOLICITOR FOR THE RESPONDENT: | Wilkinson Throsby & Edwards |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Fermannis |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Claremont Legal |
Orders
All previous parenting orders be discharged;
That the mother and the father have equal shared parental responsibility for the child X born … 2014 (“the child”);
That the child live with the mother;
That the child spend time with the father as follows:
(a) Prior to the child commencing formal schooling:
(i)Each alternate weekend from 5 pm Friday until 5pm Sunday (or 5 pm Monday if Monday is a public holiday);
(ii)During the NSW school holiday period as follows:
A. During the short term school holiday period (following terms one, two and three) for a period of four nights, as agreed between the parents but failing agreement, commencing 11 am on the first Monday of that period and concluding at 5 pm on Friday; and
B. During the long term Christmas school holiday period as agreed between the parents but failing agreement, for two blocks of five days, commencing 11 am on the first Monday of that period and concluding at 5 pm on Saturday and commencing 11 am of the fourth Monday of that period and concluding at 5 pm on Saturday.
(iii)From 4 pm on the Saturday before Father’s Day until 4 pm on Father’s Day.
(iv)From 1 pm Christmas Eve until 1 pm Christmas Day in odd numbered years;
(v)From 1 pm Christmas Day to 1 pm Boxing Day in even numbered years.
(b) Upon the child commencing formal schooling:
(i)From the conclusion of school on Friday each alternate week (or 10 am if Friday is a non-school day) until 5 pm Sunday (or 5pm Monday if Monday is a public holiday).
(ii)During the NSW school holiday period as follows:
A. In all years ending in an odd number, for the first half of each school holiday period, commencing at 10 am on the first day of the school holiday period and concluding at 4 pm on the day that is the midpoint of the school holiday period; and
B. In all years ending in an even number, for the second half of each school holiday period, commencing at 4 pm on the day that is the midpoint of the school holiday period and concluding at 4 pm on the day immediately before the commencement of the next school term.
(iii)From 4 pm on the Saturday before Father’s Day until 4 pm on Father’s Day.
(iv)From 1 pm Christmas Eve until 1 pm Christmas Day in odd numbered years;
(v)From 1 pm Christmas Day to 1 pm Boxing Day in even numbered years.
That the father’s time as otherwise provided in Order 4, be suspended as follows:
(a) From 4pm the Saturday before Mother’s Day.
(b) During the Christmas period as follows;
(i)From 1 pm Christmas Eve until 1 pm Christmas Day in even numbered years;
(ii)From 1 pm Christmas Day to 1 pm Boxing Day in odd numbered years.
(c) The father’s time in order 4(b)(i) shall be suspended during the school holiday period and shall resume on the first weekend after the school term commences.
That where the father’s time with the child is to commence at the conclusion of school changeover is to occur at school unless the parents agree otherwise. When the father’s time with the child is to commence other than at the conclusion of school, changeover is to occur at C Town McDonalds.
That the mother and father keep each other advised of their telephone numbers and addresses at all times and notify each other of any change within 24 hours of such change.
That each party shall be restrained from:
(a) making any derogatory comments about the other parent or any other members of that parent’s household or extended family in the presence of the child;
(b) discussing with or disclosing to the child any allegations of sexual abuse raised in these proceedings or permit others to do so in the hearing or presence of the child;
(c) making any documents filed or relied upon in these proceedings available to the child or permitting others to do so.
These Orders constitute authority for the mother and father to each liaise with the child’s treating medical practitioners and obtain information about any treatment and any other medical issues.
The mother and father shall each follow all reasonable directives of the child’s treating medical practitioners and ensure that they each comply with all reasonable recommendations in relation to the management of the child’s health.
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 Clifford & Miles 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 PARRAMATTA |
FILE NUMBER: PAC 1653 of 2016
| Ms Clifford |
Applicant
And
| Mr Miles |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern four year old X (“the child”) the only child of Ms Clifford (“the mother”) and Mr Miles (“the father”).
The parents physically separated prior to the child’s birth and the child has lived for her entire life with her mother in the maternal grandparent’s home. The father had spent reasonably regular time with the child under various arrangements until February 2016. At that time, when the child was almost two, the mother ceased making the child available to the father and commenced proceedings in this court seeking parenting orders including an interim order that the child spend no time with the father.
Since February 2016 it had been the mother’s case that the father poses an unacceptable risk of harm to the child on the basis that he may sexually abuse her and this position was initially maintained at the final hearing which commenced in May 2018.
In the course of the final hearing when under cross-examination the mother changed her position and agreed that the father did not pose an unacceptable risk of harm to the child. She then changed her proposal for the child’s future parenting and thereafter sought orders that the parties have equal shared parental responsibility for the child, that the child live with her and spend defined time with the father, initially supervised but ultimately increasing to unsupervised weekend and holiday time.
The father is sceptical of the mother’s changed position and it is his case that she is not genuine in her proposal. He contends that if the child were to remain living primarily with the mother it is likely that the mother will once again take steps to prevent the child spending time with him in an effort to ensure that the child has no relationship with him.
It is the father’s case that the only way to ensure that the child has a meaningful relationship with both parents is for the child to move and live with him and spend defined time with the mother. Initially the father had also sought an order that he have sole parental responsibility for the child and that there be a period where she spend no time with the mother. By the close of the final proceedings the father sought an order for the parents to have equal shared parental responsibility, for the child to live with him and spend defined time with the mother.
It is the position of the Independent Children’s Lawyer (“ICL”) that it is in the child’s best interest for the parents to equally share parental responsibility and that the child continue living with the mother and spend defined time including weekend and holiday time with the father. The ICL also seeks a restraint upon the mother permitting the child to reside in the maternal grandmother’s home in an effort to reduce the influence of the maternal grandmother in the parenting arrangements for the child.
As each of the parties and the ICL propose that the parents have equal shared parental responsibility such an order will be made.
The question for me to determine is with which parent the child should reside and what orders with respect to her time with the non-residential parent and otherwise are proper having regards to her best interests being the paramount consideration.
Background
The mother who is 40 and the father who is 35 met in February 2012 and subsequently formed a relationship. The mother had a daughter and a son (“the mother’s other children”) from a previous ten year relationship who were then aged about nine and seven respectively.
There is significant dispute between the parties about the history of their relationship including the length of time they lived together and when the relationship was at an end. Although there is no dispute that the mother was pregnant in late 2012 or early 2013 with the father’s child or children which ended in miscarriage there is also significant dispute about the details of this pregnancy. It is not necessary to resolve these disputes for the purposes of the proceedings.
In October 2013 the parties along with the maternal grandparents and the mother’s other children went on a ten day holiday. After they returned the father moved from the caravan in the backyard of the maternal grandparents’ home where he had been living with the mother and returned to live at his parents’ home. A personal relationship between the father and the mother continued but this fact was concealed from the maternal grandmother who did not approve of it.
In November 2013 the mother became aware that she was pregnant with the child. She maintains that the child was conceived in September 2013 prior to the holiday. The mother informed the father of the pregnancy in late 2013 or early 2014.
In April 2014 when she was around 26 weeks pregnant, the mother developed some serious medical conditions. The father attended with her at some medical appointments in April and May 2014.
The father says he had significant involvement with the mother, the child and her family at around the time of the child’s premature birth in 2014. The mother disputes this and maintains that the parties were not in a relationship at the time of the child’s birth and that the father behaved poorly at the hospital and when in her company at this time.
After the mother and child were released from hospital the mother returned to live with the maternal grandparents and her other children at the maternal grandparents’ home. The father spent time with the child in the early weeks of her life though there is significant dispute about the nature of the parties’ relationship, their interaction with one another and attitude towards one another at the time.
On at least one occasion when the child was very young there was an incident between the father and the mother and maternal grandmother which resulted in the police attending the maternal grandmother’s premises.
In July 2014 the mother asked the father to pay child support which he considered confusing as he regarded himself and the mother as still being in a relationship together. The father obtained legal advice. His lawyer wrote to the mother expressing the father’s instructions that he believed that the relationship was ongoing, but accepted it if the mother felt there were no prospects of reconciliation. If that were the case he proposed that matters relating to the child should be resolved amicably and swiftly and preferably without recourse to litigation.
There was a further incident at the maternal grandmother’s home in July 2014 in relation to the father’s presence which resulted in the maternal grandmother calling the police who took no action.
The parties are in dispute as to the state of their relationship at this time. The father maintains that they continued their sexual relationship and were generally getting along well enough that the mother proposed that they go ahead with a trip overseas which had been previously arranged. The mother suggests that she felt coerced into continuing with the planned trip overseas.
The foregoing matters in dispute between the parties will be discussed later in these Reasons.
In January 2015 the parties and the child along with the mother’s other children and the maternal grandmother spent two weeks on an overseas holiday. The mother maintains that there was a violent incident between the father and maternal grandmother related to the care of the child during this holiday. The father denies that this incident occurred and says that in the course of the holiday the mother told him that she was planning to move away from Sydney with the maternal grandparents and he informed her that he did not agree to the child being separated from him.
According to the mother the father continued to engage in aggressive behaviour towards herself, the child and her family following their return and she reported this behaviour to police who gave her advice to relocate in the interests of all of her children.
As a result of the father’s concerns that the mother may move the child some distance from him he sought further legal advice and arrangements were made for mediation to occur in March 2015. The parties attended that mediation but the parenting arrangements were not resolved and the parties continued to attempt to reach an agreement about the matter themselves.
The mother then informed the father of her decision to move with the maternal grandparents and her other children to another location a distance of almost three hours driving time from her current home. In this context the parents continued to attempt to negotiate suitable parenting arrangements for the child through lawyers they had both engaged.
During the time that the negotiations concerning the child’s parenting were ongoing there was at least one further occasion on which the mother or maternal grandmother called police and complained about the conduct of the father and a paternal aunt.
In May 2015 the mother and extended maternal family moved to the town which had been discussed with the father (“the mother’s home town”) and referred to in the various versions of the parenting proposals that were still under consideration by the parties. The mother, maternal grandparents and a maternal uncle purchased a house together, in which they all lived together with the mother’s three children.
After the mother moved the father spent regular time with the child in and around the mother’s home town but the mother was always present when he was with the child.
In October 2015 the father committed a driving offence and was subsequently convicted and disqualified from driving until April 2016. During the period of disqualification he was driven to the mother’s home town by a friend on occasions that he spent time with the child.
The parties and the child spent time together celebrating Christmas in December 2015.
In January 2016 the parties applied for consent orders in relation to the child’s parenting and such orders were made in a Local Court in February 2016 (“the February 2016 orders”). The orders provided for the parents to have equal shared parental responsibility for the child, that the child live with the mother and spend time with the father each alternate Saturday for three hours and Sunday for five hours until she turned two (in May 2016). The child’s time with the father was then to increase to a block period from 11 am Saturday to 2 pm Sunday each alternate weekend.
The first occasion that the father was to spend time with the child pursuant to these orders was 20 February 2016. This was also the first occasion on which the father was to spend unsupervised time with the child. As it happened, the mother was present during the child’s time with the father though there is a dispute as to whether the father was left alone with the child at any time.
The mother says that after the father spent time with the child on this day she observed blood in the child’s nappy and slight nappy rash which gave her concern and that she took the child to the Emergency Department of a hospital. Staff at the hospital concluded that there was no obvious medical reason for the bleeding and that no further assessment was needed at the hospital. The events of this day which are significant in the dispute are matters to which I will return.
The mother cancelled the time the child was due to spend with the father the following day.
On the 21 February 2016 a report was made to the Department of Family and Community Services (“Community Services”) in relation to the mother’s presentation of the child to the hospital and her concerns that the child may have been sexually abused by the father.
Various investigations were carried out by Community Services including interviewing both parents and obtaining information from the child’s treating doctor.
After 20 February 2016, it appears that the mother and child may have met with the father on one occasion but she thereafter ceased making the child available to the father in accordance with the court orders.
On 24 March 2016 the matter was closed by Community Services as allegations of sexual abuse could not be substantiated.
On 15 April 2016 the mother filed an Initiating Application commencing proceedings in this Court and seeking interim orders that the father spend no time with the child. The proceedings were identified as forming part of the Magellan Program[1] and an ICL was appointed.
[1] The Magellan program is a fast-track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse.
On 5 June 2016 the child and mother met with the paternal grandparents and their teenage grandson in the mother’s home town.
On 10 June 2016 the Magellan Report[2] was released indicating that the allegation that the father sexually abused the child could not be substantiated and the investigation had been closed.
[2] A Magellan report sets out the involvement of Community Services with the family
On 15 June 2016 the father’s time with the child pursuant to the consent orders was suspended pending further order, the father was ordered to file a Response and the mother was ordered to file a paediatric report for the child.
On 20 June 2016 a paediatrician reported that the child was generally well and of normal development. He noted that the child had an episode of pelvic bleeding the cause of which could not be identified and would vomit regularly, most likely as a result of lingering gastritis.
In July 2016 the child and the mother spent time with the paternal grandparents and the child’s cousin.
In 2016 the father met his wife who is an overseas student studying in Australia. They married in 2016.
The child also spent time with members of the paternal family other than the father in January 2017. On this occasion the paternal grandmother had made a request to bring the child’s aunt and the father which the mother declined.
On 20 February 2017 an expert was appointed to provide a Single Expert Report to assist the court.
A daughter of the father and his wife (“the paternal half-sister”) was born in 2017.
On three days between May and August 2017 the expert interviewed the parties, the maternal and paternal grandmothers, the father’s wife and the mother’s other children and observed the child for the purpose of completing a Single Expert Report for the proceedings. This was the first occasion on which the father had seen the child since the mother stopped making her available (and orders being subsequently made suspending the father’s time). The report was released to the parties in November 2017.
The expert’s opinion to which I will return in detail later in these Reasons included that the child appeared to have appropriately supportive relationships with her extended maternal and paternal family and it was clear to the expert that the child enjoyed being with her father. The expert recommended that there initially be some supervised contact between the child and the father to provide some assurance to the mother about the child’s safety and quality of the relationship between the father, his wife and the child and that this period of supervision not exceed six months at the most.
On 18 December 2017 the father, through his legal representative, proposed to the mother that he spend supervised time with the child on three occasions in December 2017 and January 2018. Through her legal representative the mother did not agree on the basis that this would involve too much travel for the child. She offered that the paternal grandmother visit the child on Christmas Eve 2017, however this did not eventuate.
The father did not bring any application to the court in relation to the child’s time with him pending final hearing.
In April 2018 the mother, maternal grandparents, the child and the mother’s other children travelled to Asia for a holiday. The mother did not contact the father to ask his permission to take the child overseas or seek the permission of the court for this travel to occur.
The final hearing began on 28 May 2018 and on the 30 May 2018 the proceedings were adjourned part-heard to August 2018.
As noted briefly previously (and being a matter to which I will return), the mother made a number of significant concessions and changed her position in the course of giving oral evidence in May 2018. In line with these concessions and in accordance with the expert’s opinion (upon which she had been cross-examined), the parties agreed to interim orders that provided for the child to spend time with the father each alternate Saturday for six hours with the paternal grandmother being present on each occasion. It was also envisaged that the expert would be present at one or two of these contact events and would prepare a further report in relation to her observations.
The father spent time with the child in accordance with the interim orders. On one occasion during the adjourned period the expert was present during a period of time that the father [and other family members] spent with the child including at changeover. The expert provided a further report in relation to her observations and opinion concerning the events that day.
It had been arranged for there to be a second occasion at which the expert was to be present to observe the child’s time with the father. The mother attempted to change these arrangements through her solicitor so that the meeting with the expert would be for the purposes of the expert providing feedback to both parents which may assist them with negotiations to final settlement. The expert felt that in these circumstances a visit between the parents and the child would be a totally inappropriate venue for any discussion for unresolved issues given the allegations in the proceedings and did not agree to being present at such an event.
The final hearing continued on the 9 and 10 of August 2018. On 10 August 2018 interim orders were made with the consent of the parties for the father to recommence spending time with the child each alternate weekend.
On 5 October 2018 submissions were made by counsel for the parties and judgment was reserved.
Expert evidence
The single expert appointed in the proceedings is a forensic psychologist with a Masters Degree in Psychology. She is a member of various professional bodies and holds supervisor level accreditation with the NSW Child Sex Offenders Counsellors Accreditation Scheme. She has over 20 years’ experience as a psychologist specialising in the fields of sexual abuse and child protection and has experience in conducting assessments including risk assessments and providing therapeutic interventions in both domains. She writes expert reports for proceedings in Supreme and District Courts in two jurisdictions as well as the Children’s Court and Family Court.
The expert’s first report was prepared following a structured clinical interview with the mother and her two older children who were also spoken to individually as part of the assessment process. The expert also separately interviewed the maternal grandmother. The father was interviewed on two occasions and observed at a contact visit with the child, the paternal grandmother and the father’s wife.
The expert had been provided with various documents produced on subpoena in the proceedings from Community Services, the child’s medical centre, hospitals and police and affidavits filed by the parties. All of the documents produced on subpoena to which she had access were tendered in the proceedings. Prior to cross-examination the expert was also provided with the affidavits filed by the parties for the purposes of the trial she had also been given information about matters that had been revealed under cross-examination of the mother (which was concluded prior to the expert’s cross-examination).
The expert was cross-examined over two and half hours in May 2018 by each of the legal representatives. The expert was not challenged about any of the factual matters that underpinned her opinion nor was there any challenge to her opinions.
Each of the party’s proposals were considered by the expert at some length.
The expert attended at one of the further occasions on which the child had contact with the father and his family in August 2018 just before the proceedings resumed and provided a further update report. The expert was recalled for further cross-examination in relation to this report and once again was not challenged about the opinions she expressed in that report.
Having regard to the expert’s expertise and experience, the nature of her assessment process which I consider to be extensive and thorough, the documents to which she had access, the lack of challenge under cross-examination to the basis for her opinion and her opinion itself I accept the opinion of the expert and attach significant weight to it in determining these parenting proceedings.
The Areas of Dispute
The mother’s case concerning events prior to February 2016
In the mother’s Case Outline prepared one week prior to the commencement of the final hearing, it is stated at the outset that “the mother asserts that the father is an unacceptable risk of harm and seeks a sole parental responsibility order and a no time order.” The mother also sought at that time that orders be made against the father with an attached power of arrest restraining him from approaching, contacting or communicating with the child by any means or coming within 100 metres of the child’s home, school or extra-curricular activity locations. She proposed similar restraints in relation to the father approaching, contacting or communicating with her and sought orders giving her alone the capacity to obtain a passport for the child.
The mother’s trial affidavit is replete with allegations relating to the father’s alleged abusive and threatening behaviour and assertions that as a result of that behaviour the relationship between the parties lasted only a short time. These allegations include that the child was conceived in September 2013 as a result of sexual intercourse to which the mother did not consent and that the father was violent towards her in an incident on the cruise in October 2013, grabbing her by the hair, dragging her, pushing her and slamming the door of the cabin on her legs causing her to suffer “extensive bruising on [her] back and legs, a neck injury and significant bruising around [her] throat.”
The mother deposes that the relationship ended after the parties returned from the cruise.
According to the mother’s affidavit, when she first told the father about her pregnancy with the child he demanded that she terminate the pregnancy or threatened to take the child from her when born. She deposes that he was abusive and behaved unacceptably at the time of the child’s birth, was obsessed with her and regularly attended her home uninvited following the discharge of she and the child from hospital. The mother deposes to police being called to her home on three occasions due to the father’s demands to attend her home and see the child whenever he wished, and claims that the only reason that she travelled overseas with the father was because he insisted on attending and she was concerned about his aggressive behaviour.
The mother deposes that while overseas the father engaged in violence towards the maternal grandmother, which was traumatic for everyone and required security guards from the hotel to intervene.
The mother outlines in her affidavit that after returning from overseas the behaviour of the father when visiting the child “escalated” with the father threatening to take the child, refusing to return the child to her and refusing to leave her property when she asked him to do so. She deposes that the father stalked her, causing her to become frightened and intimidated and she reported his conduct to police who ultimately suggested that she make arrangements to relocate as it was no longer in any of her children’s best interests for her to remain living in the area. The mother claims that she and her extended family decided to leave their family home of 50 years and move due to significant safety concerns arising from the ongoing threatening and harassing behaviour of the father.
The mother deposes to insisting that she supervise the time that the father spent with the child, as she did not trust the father due to his alleged threats to “take” the child, because of the manner in which he treated her other daughter, his inappropriate sexual comments and incapacity to attend the child’s needs.
According to the mother’s affidavit, things “started to calm down” between she and the father after she and her extended family moved. The mother says she then felt sufficiently confident to enter into arrangements in relation to the child’s future parenting and the parties were able to reach consent about these matters.
Under cross examination, the mother was challenged as to all of her evidence in relation to the nature of the parties’ relationship and the father’s conduct prior to February 2016.
When questioned about her assertion that the relationship between she and the father had ended following the cruise in October 2013 the mother was shown text message interchanges between she and the father for a lengthy period after this date. It is to be remembered in this context that the father asserts that although the parties were not living together they continued to maintain a relationship including a sexual relationship which they concealed from the maternal grandmother.
The text messages sent between the parties after they returned from the cruise are civil and often affectionate in tone and in many of them the mother told the father that she loved him and wished him “sweet dreams” to which the father reciprocated in similar terms. There are also many messages sent by both parties which are overtly sexual in nature. Although the mother continued to attempt to maintain that it was only the father whose communications were of this nature, she conceded that she did send the messages in question, and in my view they speak for themselves.
The mother’s case with respect to the father’s conduct prior to the February 2016 orders is difficult to reconcile with the orders she proposes. Under cross-examination she maintained her allegations concerning the father’s assault upon her in October 2013, and his aggressive, threatening and intrusive conduct at the time of the child’s birth and the following months which necessitated the intervention of police. She also remained firm concerning her evidence that he had assaulted the maternal grandmother and that his behaviour after the return from overseas caused she and her family to move due to their significant safety concerns. This position about the father’s conduct is also completely at odds with the February 2016 orders to which she consented.
Under cross examination, the mother agreed that the February 2016 orders provided for the parents to exercise equal shared parental responsibility and that in the exercise of that parental responsibility she and the father were able to engage in meaningful discussions for the purpose of making long term decisions regarding the child. She also acknowledged that the time the child was to spend with the father was to be unsupervised and accepted as at January 2016 she was of the view that the father posed no risk of harm to the child or else she would not have agreed to that parenting arrangement. She further agreed that she then trusted that the father would be able to provide for and care for the child when spending time with her.
The mother’s consent to orders for the father to spend fortnightly time with the child during the May – August 2018 adjournment also does not sit well in my view with her firm evidence about the father’s conduct and capacity as a parent prior to February 2016.
Many (but not all) of the mother’s allegations that the father engaged in a pattern of violent, aggressive and sexually inappropriate conduct over a number of years were put to the father under cross-examination. Although this gives rise to an inference that the mother continued to maintain these allegations about the father’s conduct as recently as August 2018 she continued to consent to interim orders in relation to the father’s time pending delivery of judgment which included the introduction of fortnightly overnight time.
Further, in final submissions made on her behalf the mother did not seek that I make findings about the father’s adverse conduct. In these circumstances and in proposing orders which provide for equal shared parental responsibility and that the child spend substantial time in the father’s care the mother must be taken to have abandoned these allegations.
Allegations arising from incident on 20 February 2016
Although the mother’s counsel persistently tried to re-characterise the mother’s position in the proceedings, it is clear that she initially took the position that on 20 February 2016 following the first period of time the father spent time with the child under the consent orders the presence of blood in the child’s nappy and mouth ulcers gave rise to an inference that the father posed an unacceptable risk of sexual harm to the child.
As noted when considering the mother’s case generally it is unequivocally stated in the case outline filed on her behalf that she contended at the outset of the trial that the father poses an unacceptable risk of harm to the child. Further, there can be no doubt that the basis upon which she suggested that the father poses such risk is that he may sexually abuse the child as he had done in the past and particularly on 20 February 2016. Specific paragraphs in the mother’s trial affidavit which appear under the heading “sexual abuse allegations” are referred to in the Outline.
Records from the hospital to which the mother presented the child indicate that the mother’s concerns arose from alleged “vaginal bleeding” following access with the father. The records indicate that the mother reported to the hospital staff that the child had never previously been by herself with the father and the father “has stated very inappropriate comments to the mother about female babies looking like grown up women.”
The mother also agreed when first cross examined about her concerns arising from the observations of blood in the child’s nappy that this suggested to her that the child had been possibly sexually abused.[3]
[3] Page 10, Transcript 29 May 2018.
The notification to the Community Services was treated as a notification of “sexual penetration” and was investigated on this basis. The proceedings were also included in the Magellan Protocol on the basis that it was alleged in the proceedings that the child had been sexually abused.
The information given by the mother to the expert in May 2017 indicated that both she and the maternal grandmother then believed that the father had sexually abused the child and posed an ongoing risk of harm.
In November 2017 after the release of the expert’s report the mother consulted with a psychologist as the expert had suggested that she would benefit from psychological treatment to address her concerns about the father having unsupervised contact with the child. In a report concerning that treatment (which consisted of the mother attending seven one hour appointments) the psychologist states the following:
[The mother] believes that [the father] sexually assaulted [the child] during a daytime visit [place deleted] on February 2016. [The mother] states she is unsatisfied with the integrity of the investigation that followed and no medical explanation was found to explain the blood that was found in [the child]’s nappy and witnessed by medical staff at [the hospital] after the visit…
…[the mother] believes her stress is a reasonable response to her belief that her daughter had been harmed and the ongoing process of attempting to secure her daughter’s safety.
Elsewhere in the report the psychologist refers to the incident “where [the mother] believes [the child] was sexually abused” and that “[the mother] remains convinced that the blood that was found in [the child]’s nappy following visitation with [the father] in February 2016 was the result of abuse at the hands of [the father]”.
In my view, in these circumstances, it cannot be maintained as the mother’s counsel attempted to do, that the mother’s case at the outset was anything other than one in which she alleged that the father posed an unacceptable risk of harm to the child on the basis that he had sexually abused the child in the past.
The mother initially agreed under cross-examination that the presence of blood in the child’s nappy on 20 February 2016 suggested to her that the child was “possibly sexually abused”. The mother then shifted her position and said that she did not know what the presence of blood suggested to her but continued to describe the presence of blood as “vaginal bleeding”. The mother then denied suggesting to hospital staff that she believed the child had been sexually abused despite hospital records indicating that she had raised this concern.
The mother then shifted her position again and agreed that on all the evidence it did not “look like” the father had sexually abused the child. She then said she did not believe the sexual abuse had happened.
The mother also conceded that from at least June 2016 there was no evidence to establish that the father or any other person had sexually abused the child.
By the completion of cross-examination of the mother in May 2018 she had accepted that if supervision of the child’s time with the father were to occur this was for the purposes of the child emotionally reconnecting with the father rather than protecting the child from any risk of harm.
In the course of the cross-examination of the expert when interim orders for the child’s time with the father were being considered the mother’s counsel showed the expert the mother’s proposal at that time for parenting orders in relation to the child. The minute of order began with a number of recitals including that “the mother accepts that the father does not pose an unacceptable risk of harm to the child” and “the mother accepts that the father did not sexually abuse the child”.
When the proceedings resumed in August 2018 the mother continued to run her case on the basis that the father did not sexually abuse the child and poses no unacceptable risk of harm on this basis.
For the sake of completeness as it had been such a central issue in the proceedings I will briefly consider the allegation relating to a risk of harm posed by the father even though it was not pressed by any party.
The child spent some time with the father on 20 February 2016 but the mother was in the general vicinity of them both during that day. Some hours after the child was with the father the mother changed the child’s nappy and observed that it was blood stained. Shortly before this day the child had been constipated and required treatment and this constipation may have been the cause for some blood in the child’s nappy. The father had also observed the child to express some discomfort when sitting on a piece of play equipment on that day. The mother took the child to a hospital and showed the hospital staff a nappy which appeared to be lightly blood stained and expressed her concerns about possible sexual abuse. There was no further bleeding observed by staff while the mother was at the hospital and it has not ever been determined that the blood was of vaginal origin as asserted by the mother. The mother did not tell the staff at the hospital about the child’s recent constipation. Community Services who were contacted did not authorise further forensic investigation following discussion with the Child Protection Unit. The child was discharged with a plan for the general practitioner and later a paediatric gynaecologist to arrange for follow up appointments. Subsequent investigations by a paediatric gynaecologist confirmed that there were no findings to explain the child’s symptoms.
As was conceded by the mother and is a necessary inference drawn from the orders that are proposed by her she does not now contend that the father poses an unacceptable risk of harm to the child. The ICL also takes a similar position in the proceedings. I am of the view that the foregoing evidence does not support a positive finding that the father sexually abused the child in the past or that he poses an unacceptable risk of harm to the child arising from sexual abuse or on any other basis.
The father’s case
The father maintained at all times in the proceedings that the mother has not ever supported the child having a relationship with him and it is necessary for the child to move and live with him to preserve that relationship. After the mother conceded that he did not pose an unacceptable risk of harm to the child, he contends that the mother’s change in position is not genuine, and was adopted in an attempt to escape the consequences of matters revealed under cross examination.
In submissions made on his behalf the father seeks a finding that the mother still genuinely would prefer that the child have no contact with him but for forensic reasons adopted in the proceedings has presented herself as supporting the child’s relationship with him. In terms of the orders proposed by the father, it is submitted that the court should have real concerns if such a finding were made that after the proceedings are complete and the child remains living primarily with the mother, it will only be a matter of time before she takes steps to stop the contact between he and the child.
In advancing the position that the mother genuinely does not support the relationship with the father, it is submitted on his behalf that the court should also make a finding that the allegations that he sexually abused the child were false, and that the mother knew them to be false when they were made. Many pages in the father’s written submissions are devoted to this matter and an analysis of the evidence that is contended to support this finding. Virtually all of the written submissions made on behalf of the mother and much of the time in oral submissions was also devoted to addressing this issue.
In my view, it is unnecessary to determine whether the mother knowingly made false statements about the events of 20 February 2016 in order to resolve this parenting dispute.
As was observed by Kent J, in Carlson & Fluvium (“Carlson”)[4], there are good reasons why, as a general proposition, civil courts usually refrain from specific adverse findings against litigants, and these reasons apply with at least equal, if not greater force in parenting proceedings where the decision does not bring an end to the litigants’ relationship.[5] Kent J commented at [168]:
...These parties are, and will remain, the parents of D and K and adverse credit findings in this decision carry the inherent risk that, rather than bringing an end to long-standing conflictual issues, they may be embraced as vindication for the pursuit of further conflict in the future.
[4] [2012] FamCA 32
[5] [2012] FamCA 32 at [165] - [169]
The Full Court in Adamson & Adamson[6] (“Adamson”), approved the observations of Kent J in Carlson, holding that a trial judge should refrain from making adverse credit findings in a parenting case, unless it is necessary to determine the real issues in dispute where this cannot legitimately be achieved otherwise. In particular, the Full Court said at [90]:
…in parenting proceedings an adverse credit finding against a parent should not only be necessary to determine the real issues joined between the parties but should be soundly based, with due allowance for the limitations referred to [in Carlson at 165-169].
[6] (2014) FLC 93-622, [2014] FamCAFC 232
In these proceedings, the parties are both seeking equal shared parental responsibility for the child, and will be required to maintain a positive relationship in order to facilitate decision making in relation to the child in the future. The making of a finding as sought by the father in my view is likely to lead to further conflict between the parties in the future which would not be in the child’s best interest. This is especially so when the father takes a position in these proceedings on the basis of personal feelings of grievance about the awful allegations made by the mother concerning his conduct. While he may be quite justified in feeling so aggrieved about this matter the resolution of these proceedings entail a consideration of the child’s best interests alone.
Further, the findings sought by the father may also have a negative impact on the mother’s relationship with the maternal grandmother in the future. The maternal grandmother has steadfastly supported her daughter in relation to her concerns about the father, presumably on the basis that she accepts the genuine nature of that mother’s concerns. If the mother were not found to have been genuine and in effect to have deceived the grandmother there may be a fracture in that relationship. This would not be in the best interests of the child in circumstances where the maternal grandmother lives in the same house as the mother and provides great practical support to her.
The manner in which the mother has approached the proceedings and the orders she has sought together with her evidence about the father’s conduct and contentions about the risk of harm posed by him are a matter of record. The father is entitled to rely upon those matters of record and seek inferences that can be drawn from those facts. In this way the issues between the parties may be resolved without the necessity of determining whether the mother knowingly made a false allegation about her concerns about the risk of harm posed by the father.
The Law & Discussion
The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The objects are to ensure that the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.
Primary considerations: s 60CC(2)
The primary considerations (under s 60CC(2)) are:-
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.
The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[7] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[8] and has also agreed with the reasoning of Bennett J in G & C[9].
[7] (2009) FLC 93-405; [2009] FamCAFC 92
[8] (2007) 37 Fam LR 518
[9] [2006] FamCA 994
Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
The Full Court said in McCall & Clark (supra) at [117]:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).
As previously discussed at length the mother took the position for some time including at the commencement of the final hearing that the father posed an unacceptable risk of harm to the child, had been the perpetrator of violent harassing and inappropriate conduct towards her and had such shortcomings as a parent that she proposed an order that the child spend no time with him and an almost complete restraint on him having contact with the child. The clear implication in this position is that the mother did not consider that the child receives a benefit from having a meaningful relationship or any relationship with her father.
At one stage in the course of her oral evidence in May 2018 despite having made many concessions about the risk of harm posed by the father the mother still maintained that she was seeking an order that the child spend no time with the father because she did not want the child to have a relationship with him. A short time later in answer to further questions about her proposal in light of her concessions the mother then proposed that the child have supervised time with the father. When pressed about whether she was genuine with respect to an order for supervised time, the mother changed her position within minutes and said that she did believe that there was a benefit to the child in having a relationship with the father.
The mother’s case from this point onwards has been that the child does receive a benefit in having a meaningful relationship with the father. The orders she proposed thereafter foster that relationship and are consistent with this positon.
However, the question of whether the mother is genuine in her changed position in relation to the benefit to the child in having a meaningful relationship with the father is central to the orders proposed by the father. The father contends that such a relationship between he and the child will not be promoted for so long as the child lives with the mother. He contends that based on the mother’s past allegations and conduct there is a likelihood that she will withhold the child from him in the future, placing the child’s relationship with him in jeopardy.
A significant issue in the cross-examination of the expert thus related to the expert’s opinion about whether the mother was genuine in her change of heart.
First the expert described the mother’s change in position as follows:
Your summary of the mother’s evidence is really a huge leap forward from the position that she maintained when I met with her. She was very concerned about the risk, I think, of sexual abuse, and I think that was a primary – and certainly to the front of – of our discussion – concerns for her. It was held by family – members of her family as well. So there was a genuine concern that [the father] did pose a risk. I think to not have that as a prominent position now makes it much easier to believe that … [the child] could have a positive and meaningful relationship with her father whilst remaining in the care of the mother.
The expert agreed that if I were to find that the mother’s changed position was not authentic or genuine there would be a risk of the same events recurring after orders are made, that is, the mother will find some way of not co-operating with them. The expert also agreed that this risk if found to be unacceptably high could form the basis of orders for a change in residence.
An associated issue relating to the question of whether the child will receive the benefit of a meaningful relationship under the mother’s proposed orders relates to the attitude and influence of the maternal grandmother.
It is to be remembered that the maternal grandmother has played an important role in the parenting of all of the mother’s children. Following the breakdown of the mother’s previous ten year relationship with the father of her two other children the maternal grandmother played a significant role in supporting the mother. In particular the maternal grandmother assisted the mother to protect her two other children from the harm associated with exposure to family violence which had characterised the mother’s earlier relationship. Those children have spent much of their life living with their mother in the home of the maternal grandparents. The child who is the subject of these proceedings has lived her entire life with the mother in the home the maternal grandparents.
The maternal grandmother’s affidavit evidence about the father’s conduct is consistent with the mother’s. She deposes to permitting the father to stay with the mother in a caravan at the rear of her premises in April or May 2013 and although she had little to do with him she says she was concerned that he may have been drug affected at times. She also deposes to the father being possessive and verbally abusive of the mother and her other children. She deposes to the father’s violence during the cruise in October 2013 and to observing the mother as “visibly distressed and frightened and covered in bruises on her legs arms and neck” following an incident in which the mother reported being assaulted by the father. The maternal grandmother gives evidence of the mother reporting to her the circumstances of the child’s conception and the father’s behaviour at the hospital at the time of the child’s birth and in the weeks following the release of the mother and child from hospital in similar terms to the mother’s affidavit. She reiterates similar concerns about the father’s demands, attendance at the home whenever he wished, refusing to leave the home and threatening to take the child “whenever he wanted” and being aggressive and abusive which caused her to contact police. The maternal grandmother also deposes to the incident overseas in which the father was aggressive and abusive in the presence of the child and the mother’s other children and to the father assaulting her causing security to intervene. She deposes in a similar vein to the mother to the father’s abusive and threatening behaviour escalating following their return from this trip and receiving advice from police to move due to the father’s behaviour and fears about what he would do if they remained in the area.
Curiously, the maternal grandmother does not depose to any events after about April 2015 shortly before she and the extended maternal family moved away from Sydney.
In my view the evidence of the maternal grandmother under cross-examination was difficult to accept and internally inconsistent. The tenor of her evidence was that she abhorred the threatening and violent conduct of the father towards the mother and her children and recognised that the children’s exposure to such conduct was harmful to them. At the same time she maintained that she would support the mother if the mother chose to have a relationship with a man who engaged in such conduct. This is difficult to accept when the maternal grandmother in all other respects seems to have been particularly protective towards the mother and the children. The maternal grandmother was incongruous in maintaining her evidence about the father’s concerning conduct while also conveying the impression that she would support the mother in her changed position towards the father’s contact with the child.
The expert’s assessment of the maternal grandmother for the purposes of her report had been arranged to take place following the assessment and observations of contact between the child and the paternal family which was observed by the expert. The expert had some interaction with the maternal grandmother prior to her formal assessment following the contact visit with the child which the expert described in the following terms:
At the end of the contact visit I walked [the child] back to her mother and grandmother in the carpark. In response to their questions about what [the child] had eaten for lunch I told them what [the father] had provided. [The maternal grandmother] became very angry and abusive in her attitude and tone saying I had been negligent in my supervision of [the child] because she is “allergic” to dairy products.
[The mother] and [the maternal grandmother] then settled [the child] into the car saying they expected she would vomit on the trip to [the mother’s home town].
Subsequently, it came to light that the child is not allergic to dairy products and that the maternal grandmother had also apologised for her earlier comments to the expert. However the maternal grandmother maintained in her interview with the expert that she felt that it was unreasonable of the father to have given the child a cheese sandwich.
In her report the expert describes the maternal grandmother as wanting to talk about her concerns regarding the father having contact with the child and the belief within the maternal family that the child was assaulted by her father. In expressing concern about the father the maternal grandmother not only referred to the allegations of sexual abuse but to the father’s harassing conduct and violence towards the mother. The maternal grandmother told the expert that she has “a child protection focus” and added that it was her belief that the father’s behaviour puts everyone in her family “at risk”. The maternal grandmother told the expert that her three grandchildren and the mother were coping better with their life circumstances [without the father in their lives] and this would be at risk if the father were to have any form of contact with the child in the future.
The maternal grandmother attempted to distance herself in oral evidence from the expert’s reports of her views relating to the sexual abuse allegation and her conduct on the day of the first assessment meeting. She did agree however that she and the mother were reluctant to leave the child and the father on that day due to concerns regarding the child’s safety and that she did not think the expert would be able to protect the child. Although the maternal grandmother appeared initially under cross-examination to take issue with the expert’s description of her behaviour on the day of the assessment she subsequently agreed that it was entirely inappropriate. She described herself as being “totally devastated and upset” at how upset the child was but then agreed with the proposition that her state of mind was because she “hates the fact that the father is going to have a relationship with the child”.
The maternal grandmother maintained under cross-examination however, that the expert was inaccurate when she reported that “the family remained convinced that the child was assaulted by the father”.
For the reasons previously given I attach significant weight to the opinion of the expert. I also accept her evidence over that of the maternal grandmother about the views expressed by the maternal grandmother when she was assessed. The expert was not challenged under cross-examination about her report of the maternal grandmother’s views and the expert’s evidence is consistent with the maternal grandmother’s concessions under cross-examination.
Much of the cross-examination of the expert was concerned with the influence of the maternal grandmother in the maternal family system. The expert described the maternal grandmother as “a very dominant personality” “very unwilling during the assessment to entertain any contact whatsoever with the father” and “very adamant with [the expert] that the sexual abuse had happened and that there was only one person [the father] who could have done that”. The expert confirmed that a very real question remains whether the mother will be able to take an autonomous stance if the maternal grandmother also does not genuinely support the mother in her changed position with respect to the father.
The expert’s cross-examination in relation to the influence of the maternal grandmother included the following:
…[D]o you think the influence would be so great that it would actually present a real impediment to the mother being actually able to comply with the orders?
...There was a very strong sense that the mother had nowhere to go. You know, the mother has nowhere to go if she’s – she has three children and she’s living – you know, the family moved and she’s – this is her circumstance. So I - I think that if she was to stand up to her mother, and she may well be able to do that, but I don’t know what her mother would do in retaliation.
Yes?—I – I’m not certain. Her mother certainly indicated to me that she wants a role in her grandchildren’s lives. That can be, you know – that can be used in a positive way to help the mother, but I don’t know. I didn’t – my sense of the grandmother is she’s very strong and I think she likes to have her own way, which a lot of us do, but she didn’t give, you know, she was quite aggressive.
…[W]ould you have any confidence in an arrangement where live with mum, spend time with the father of some configuration – that if the maternal grandmother remained on the scene, so to speak, would you have any confidence that such an arrangement would actually work?...
Well, I can really only speak from my contact with her…
Based on your contact?...
[N]ot in anything that she may have said since then or have done since then I’m unaware. Her view of [the father] is incredibly negative – was incredibly negative to me. She – she indicated to me quite clearly she believed that he had sexually abused [the child] and that if I didn’t understand that then I was really stupid. You know, it was that sort of factual understanding. She became quite agitated and unable to talk about it further than that because her view, you know, it just is what it is and you need to face that. So I think that that’s a difficult – difficulty. If the maternal grandmother is able to support her daughter’s position now, she would need to step back a little bit and let the mother be the person that deals with it rather than her, I think, because she really did not like him and that – she stated that quite clearly.
Having regard to my findings in relation to the maternal grandmother’s evidence and the opinion of the expert in relation to her role and influence in the maternal family I am of the view that it is likely the maternal grandmother has not changed her attitude towards the father and the benefit that the child will receive from having a relationship with him.
On the basis of the expert’s opinion I am also of the view that so long as the mother is able to take an autonomous stance she has the capacity to promote the child in having a positive relationship with the father. I further accept the expert’s opinion that the mother “may well be able to do that”.
The ICL proposes orders which are intended to mitigate the risks associated with the maternal grandmother’s influence and support the mother’s autonomy and capacity to promote the child having a positive relationship with her father. The proposed orders restrain the mother from permitting the child to reside in the same residence as the maternal grandmother and are proposed to begin operating after a period of three months from the date of these orders. Pursuant to a further order proposed by the ICL, in the event that the mother does not comply with this restraint then the child is to live with the father and spend time with the mother each alternate weekend.
I am of the view that the order proposed by the ICL to restrain the mother from permitting the child to reside with the maternal grandmother is not practical nor in the child’s best interest to mitigate this risk.
In coming to this view I attach some weight to the mother’s evidence of her son’s disability and the level of assistance provided by the maternal grandmother in the care of this child even though I formed the impression that the mother did exaggerate when giving evidence as to the level of this child’s needs and the impact upon her availability and care giving capacity. I formed this impression as details of this child’s disability and level of assistance provided by the maternal grandmother are omitted from the mother’s affidavit. Further, the maternal grandmother’s affidavit is silent about her role in this regard and as the expert who is a qualified psychiatrist and observed this child makes no reference to him having such serious levels of disability, nor did the mother inform the expert of these matters. However there is evidence from a service provider which provides some support for the mother’s claims about the level of this child’s disabilities. Further, as opined by the expert, there was a strong sense that the mother has nowhere else to go having lived at all times with the maternal grandparents.
Although I am not satisfied that the maternal grandmother provides such a high level of assistance in the care of the mother’s son as the mother contends, there is no doubt that she has generally provided great support to the family for many years and the requirement that the mother and her children reside elsewhere may diminish the practical support she is able to give to the mother in her care of all of her children.
It is also my view that even if the mother were to reside elsewhere it is still inevitable that the maternal grandmother will be highly present in the children’s lives given their past relationship with her and the pattern of their care and it cannot be assumed that the maternal grandmother’s influence will be less than if she were living in the same home as the mother and children.
Finally, it is of significance in my view that despite the apparent dominant influence of the maternal grandmother in the past the child has been able to develop a familiarity with the father and the foundation of a sound relationship with him which has been further developed over the past eight months as the proceedings have been ongoing.
The father submits that the need to protect the child from psychological harm in the mother’s household is a significant feature in these proceedings.
Section 60CC(2)(b) is concerned with protecting a child from harm arising in particular ways, being harm that arises from being subjected to or exposed to abuse, neglect or family violence. There is no suggestion that the child will be neglected or subjected or exposed to family violence in the mother’s care and it seems that the father’s concern relates to psychological harm arising from abuse.
In this regard the father relies upon the expert’s oral evidence about the risks to the child if she is exposed to a belief in the mother’s household that she had been sexually abused by her father with whom she is now spending regular time. The expert outlined a number of long term risks to the child if that narrative were to be ongoing in the mother’s household. These include risks of self-harm, teenage sexualised behaviour, teenage pregnancy, difficulty in integrating the sense of self and difficulties in relationships all matters that arise from a belief system of being a victim.
The expert also agreed with the proposition that the child will be protected if her lived experience of the father’s care is safe and protective.
The expert did not express the view that there is an unacceptable risk of harm to the child on this basis if she were to remain in the care of the mother and said that she was not aware of anything “in the mother’s care of the child that is abusive or harmful to the child.”
I am unable to make a positive finding that the child has been exposed to the narrative that she may have been sexually abused by the father or that such a narrative has continued in the mother’s household since May 2108 when the mother conceded that she no longer held the view that the father poses an unacceptable risk of harm to the child.
Additional considerations: s 60CC(3)
Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
Nature of the child’s relationships
Likely effect of change in the child’s circumstances
Attitude to the child
Both parents expressed love for the child and a desire to keep her safe from harm. I am satisfied that each of the parents has a loving and caring attitude towards the child.
The expert was not challenged about her opinion that the child appeared to have a secure attachment to the mother and that the mother’s behaviour suggested she is bonded with the child.
When the child was first assessed with members of the paternal family, having not seen the father for almost 18 months it was observed that the child “engaged in a happy and appropriate way with her father who was responsive to her needs and did not rush or pressure her”. The expert reports the child seeking the father’s protection from ducks around the pond in the park where the observation was taking place and a willingness to be held by the father. The expert did not observe heightened or prolonged anxiety or fear responses from the child when with her paternal family and the child did not ask for her mother or maternal grandmother during the visit.
In summary the expert opined as at October 2017 that the child’s interaction with the father and his wife indicated to her that the child knew them but did not know them in a way that she knows people that she sees regularly.
The expert expressed the opinion then that the child appeared to have appropriately supportive relationships with her extended maternal and paternal family.
As it became clear in the course of the final hearing in May 2018 that the evidence would not be completed within the allocated time the expert was interposed. In addition to being cross-examined on her report the expert also gave an opinion in relation to interim orders given the mother’s evolving change of position in relation to the father’s time with the child.
The expert agreed that it would be appropriate and in the best interests of the child (while not prejudicing each parent's final position) for the child to remain living with the mother during a period of an adjournment in the proceedings and for some regular time with the father to be introduced. The expert was of the opinion that introducing time with the father in this way would assist the child in getting to know the father “in a more comfortable way”.
The expert also felt that if supervision were to be imposed the paternal grandmother may be an appropriate supervisor because she also wanted to build her relationship with the child and missed her. The expert did not however feel that supervision was required and was of the view that the father and his wife could take adequate care of the child. She also felt that the time with the father should be fairly frequent and not too short and suggested half days or longer which should occur more frequently than monthly. When asked about whether the child would benefit from some sort of family therapy to support this interim time with the father the expert felt that “the most powerful support of [the child] would be her mother giving her permission to enjoy it” and this would be preferable to family therapy.
The expert maintained that the increase in the father’s time with the child should be gradual but that there were disadvantages to the child for the gradual increase occurring over a long period of time. Bearing in mind that it became apparent that the proceedings would be adjourned for about two and half months the expert proposed fortnightly contact during the adjourned period of about half a day on each occasion. The expert also offered to observe one or two of those sessions of time.
Following cross-examination of the expert the proceedings were then adjourned for two and a half months and the parties consented to interim orders being made generally in accordance with the expert’s recommendations. The interim orders provided for the child to spend time with the father each alternate Saturday during the period of the adjournment for a period of six hours with the paternal grandmother being present on each occasion. It was also envisaged that the expert would be present at one or two of these contact events and would prepare a further report in relation to her observations.
When the proceedings were resumed following the adjournment the expert had prepared an update report concerning her observations of the child on the one occasion that she had participated in the child’s time with the father and paternal family. The expert observed the child to be talkative and engaging with the father and paternal family and co-operating with the father. The expert observed that the child consistently sought attention from the father, her paternal half-sister, paternal grandmother and step mother by smiling at them and approaching them in a relaxed and confident manner. The child was observed to run towards the father and her half-sister for hugs and cuddles at times during the visit and speaking to the half-sister who was responsive and smiling at the child. The expert did not observe any obvious signs of discomfort or anxiety in the child’s presentation throughout the visit.
In oral evidence when the proceedings were resumed in August 2018 the expert described the father’s relationship with the child as ‘emerging’. She described it as an attachment relationship and opined that the father ‘definitely shows bonding’ with the child.
Under cross-examination about her observations on the first occasion, the expert continued to stress that she was surprised about the child’s reaction to seeing her father given the long period of his absence from her life. However, she also remained firmly of the view that the child’s “primary attachments” and her “hierarchy of attachments” are within the maternal family.
Given her opinion about the child’s primary attachments being the mother, maternal grandmother and maternal half siblings the expert felt that the biggest risk factor in the father’s proposal was that it would remove the child from her primary attachments to live with people with whom she has had limited contact. The expert described such a change as “emotionally quite traumatic” for the child.
While the expert did not think that the father’s capacity as a parent was an impediment for the child living with him she still felt that a transition to his primary care is “a very big ask of a four year old” in light of the nature of the child’s attachments. Later in cross-examination the expert referred to the loss and grief that the child would experience if separated from her positive hierarchy of attachment.
Overall I regard these matter as weighty in determining the best interests of the child.
Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the child and to spend time and/or communicate with the child
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child
The mother has taken it upon herself to make all of the long term decisions in relation to the child. Until her change of heart in the final proceedings the mother has in my view acted in a somewhat high-handed way in excluding the father from long term decision making.
There is little dispute between the parties that the mother and maternal grandmother operated as gatekeepers concerning the child’s contact with the father when she was an infant and at that stage the father’s main concern was to have a relationship with the child through spending time with her and participating in decision making about her.
I am satisfied that the reason the mother and her family moved away from the area in which they had lived all their lives was due to the maternal grandfather’s retirement from work rather than any concerns about the father’s conduct. When the father became aware of the intention of the mother to move away the parties began negotiating a parenting plan which involved the child continuing to live with the mother, the parents sharing parental responsibility and the child spending defined time including overnight and unsupervised time with the father when she turned two.
While I do not make a positive finding that the mother did not ever have an intention to comply with these orders and effectively manufactured a reason to not comply with them I do have significant concerns about her attitude towards the father’s role in the child’s life and her apparent sense of greater entitlement in decision making concerning the child. While I am not critical of the mother for initially taking steps to safeguard the child’s welfare following her concerns in February 2016 there is no reason why she continued with her application for changed parenting orders after around July 2016 when she concedes there was no evidence to support her concern that the father posed an unacceptable risk of harm to the child.
Despite the parents continuing to hold equal shared parental responsibility for the child under the February 2016 orders the mother acted as if she had sole parental responsibility and made unilateral decisions in relation the child’s medical care, enrolling the child in child care and preschool and travelling internationally with the child without seeking the consent of the father.
After the release of the expert’s report in November 2017 it is curious that the father did not make application to the court for his time with the child to be reinstated. Rather he chose to seek the mother’s agreement for supervised time consistent with that report through the legal representatives. This suggestion was rejected by the mother though there does not seem to have been a reasonable basis for her position given her concession under cross-examination she did not believe by that stage that the father did pose a risk of harm to the child.
Under cross-examination the father said that he did not know that he was required to make application to the court for a resumption of his time with the child and believed at the time that the mother had the right to decide whether he could spend time with the child and respected that right. He added “if I knew that I have gone – done it way earlier. I would have tried to get to see my daughter heaps earlier.”
The mother asked the father to pay child support at an early stage when the father still believed that he and the mother were in a relationship. The father has paid child support as assessed.
Practical difficulty or significant expense involved in spending time with and communicating with the other parent
As each of the parents intend to continue residing at their current locations which are a distance of 260 kilometres apart, practical difficulties arise on each of the parties’ proposals. These practical difficulties were also of course inherent, though to a slightly lesser degree, in the February 2016 orders.
The mother deposes to suffering from a back condition that she says caused her periods of severe back and neck pain which is exacerbated if she drives for more than an hour, and annexes an updated medical certificate to her affidavit to this effect.
Under cross-examination she said that at the time the February 2016 orders were made she had no physical difficulty in driving the required distance, and that she had since developed a back and neck condition that make it difficult for her to drive long distances. Ultimately however, it was not suggested in final submissions that any medical condition would prevent the mother from driving the child to spend time with the father, or driving herself to spend time with the child under each of the respective proposed orders.
It also had been suggested from a fairly early stage (during the expert’s assessment in August 2017) that the child suffered from fairly significant motion sickness when travelling in a car and this was initially explored under cross-examination. However when the expert travelled in a car with the child and paternal family for some distance in the course of her observations in August 2018 the child did not exhibit any signs of motion sickness. Thereafter the issue did not feature in the proceedings.
Although these practical difficulties were acknowledged, it was not suggested in final submissions, nor do I find that any such difficulty would substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis as is envisaged by this consideration.
Capacity of each parent and any other person including grandparent or other relative to provide for the child’s needs including emotional and intellectual needs
Maturity, sex, lifestyle and background (including culture and traditions) of the child and either parent
Attitude to the responsibilities of parenthood demonstrated by each parent
Although the mother deposes in her affidavit to the father having very limited capacity to meet the child’s needs she can be taken to have abandoned this contention by the completion of the final hearing. In final written and oral submissions the mother’s counsel did not approach the competing proposals on this basis or contend that the father is incapable of assuming even the role of primary caregiver for the child.
I accept the opinion of the expert (which was not challenged in this regard) that the father is “a particularly adept father” who is “very intuitive”. In summary the expert said she thought that the father was very appropriate in his interactions with the child, had come prepared for his time with her and overall was of the view that he and his wife could take adequate care of both the child and their own child. Even in May 2018 when interim orders were under consideration the expert was not of the view that supervision was required.
It is submitted on behalf of the mother that the father’s proposal for a change of residence is “in unchartered waters” and untested. It appears to be suggested in this regard that the father is untested in his capacity to care for the child. Although the father had not had an opportunity prior to August 2018 to care for the child for more than a period of a few hours the expert’s opinion about his capacity in this regard was not challenged. The father and his wife have also had the full time care of the child’s half-sister since her birth in 2017. By the time this judgment is delivered the father will also have had the experience of caring for the child for more extensive and overnight periods for around five months. Such an arrangement was agreed to by the mother.
I am unable to make a positive finding that the mother lacks the capacity to support their child having a relationship with the father but am of the view that there are some concerns about the mother in this regard.
By the time the final submissions were made in October 2018, the child had been spending regular time with the father for five months, three months of which included overnight time. It is now eight months since such orders were made and there is no suggestion of non-compliance by the mother or any evidence to suggest that the mother did not facilitate that time. I agree that this has been an opportunity to test the mother’s capacity to comply with such orders albeit while under the eye of the court.
Despite the mother’s demonstrated capacity in recent times to comply with orders for the father’s time, on the basis of her past conduct, there remains some risk that the child’s relationship with the father will be jeopardised through the mother’s non- compliance especially when she is no longer under the eye of the court. This is also a weighty matter to be considered in these parenting proceedings.
Apart from having grave reservations about the mother’s capacity to support the child’s relationship with him, the father does not contend that the mother lacks capacity generally to care for the child. The father conceded in my view quite properly and reasonably that she was a “good mother”. The most significant concern about her capacity was ultimately articulated as her alleged ability to parent the child in an autonomous manner without the influence of the maternal grandmother while accepting her practical support.
As discussed previously in these Reasons I acknowledge that the capacity of the mother to take an autonomous position and resist the maternal grandmother’s influence is a risk factor but I cannot positively find that it is likely that the mother will not be capable of acting autonomously. The expert opined that the mother does have such a capacity and the events of the last eight months do not give me undue cause for concern.
Family violence
The mother’s affidavit is riddled with allegations in relation to the father’s conduct that would fall within the definition of family violence.[10]
[10] S 4AB of the Act defines family violence as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
As discussed earlier in these Reasons the mother’s allegations include that the child’s conception resulted from sexual intercourse to which she did not consent, that the father assaulted her brutally during the cruise in October 2013 and that he was regularly threatening which caused her to be extremely fearful and give into his demands. She alleges that the father assaulted the maternal grandmother when overseas and upon their return engaged in aggressive and threatening behaviour which caused her to have significant safety concerns and ultimately resulted in a decision of the family to leave the area in which they have lived for 50 years to escape from his behaviour.
Although the mother and maternal grandmother maintained some of these allegations under cross-examination and many of them were put to the father under cross-examination, others including the very serious allegation of sexual assault against the mother simply faded away or appeared to have been abandoned in the course of the final hearing. Further, the mother did not seek a finding as to any of these matters and did not refer to them in final written or oral submissions. It was also not suggested that I should not apply the presumption of equal shared parental responsibility on the basis that there are reasonable grounds to believe that the father had engaged in family violence.
In these circumstances family violence is not a weighty matter in determining the parenting orders that are in the best interests of the child.
Any other relevant fact or circumstance
Each of the parties and the ICL approached the proceedings as if the court were required to consider the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and other parent even though this has not been a mandatory matter to consider since June 2012.[11]
[11] S 60CC(3)(c) of the Act requiring the court to consider the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent was repealed on 7 June 2012 under the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth).
Although the removal of this matter from the mandatory considerations does not prevent the court considering it as a relevant matter I do not treat it as a separate matter but have considered it when dealing with the primary considerations and parental capacity.
THE PARENTING ORDERS
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode[12] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[12] (2006) FLC 93-286
Where the Court is to determine parental responsibility, the starting point is s61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for her (subsection 61DA(4)).
Neither party nor the ICL suggests that the presumption that it is in the best interests of the child for her parents to have equal shared parental responsibility does not apply. Each of the parents and the ICL seek an order for equal shared parental responsibility and none submit that there is evidence to rebut the presumption that it is in child’s best interests for the parents to have equal shared parental responsibility.
Accordingly in these circumstances I propose making an order for equal shared parental responsibility.
As an order will be made for the parents to have equal shared parental responsibility for the child, under s 65DAA of the Act, I must consider whether the child spending equal time and then substantial and significant time with each of the parents would be in her best interests, and whether such an order is reasonably practicable.
Given the distance the parties live from one another and as there was no proposal of either of the parties to move from their current residence contemplated in the proceedings it is not reasonably practicable for an order to be made that the child spend either equal time or substantial and significant time with each of the parents.
Accordingly, I propose making an order that the child live primarily with one parent and spend time with the other that falls short of substantial and significant time.
Conclusion
The mother commenced the final hearing on the basis that the father posed an unacceptable risk of harm to the child and sought orders that would see her have sole parental responsibility for the child, for the child to spend no time with the father and for the father to be restrained from virtually all contact with the child.
In the course of cross-examination the mother did not resile from many of the serious allegations she made against the father. She did however accept that the father does not pose an unacceptable risk of harm to the child on the basis of sexual abuse and proposed orders consistent with her changed view that the child receives a benefit from having a meaningful relationship with her father. The orders she proposed from this point in the proceedings foster the child’s meaningful relationship with the father by providing that she spend time with him and by an order that the parents share parental responsibility for her.
I have some disquiet about the genuine nature of the mother’s change of heart particularly as there has been no change in the evidence supporting her contention about the risk of harm posed by the father from about mid-2016. For the reasons given however I do not make positive findings that the mother falsely made the claim about the unacceptable risk posed by the father.
Further, I do not find that it is likely the mother will not support the child having a meaningful relationship with the father in the future if her current living arrangements remain unchanged. While concerns do arise about the influence of the maternal grandmother upon the mother it is significant in my view that notwithstanding any negative attitude towards the father in the maternal household the child has been able to develop a meaningful relationship with him. This has occurred despite the child having limited face to face contact with him for a lengthy period.
For the past eight months the child has also had a lived experience of the father’s care. For the reasons given this is likely to have been positive and also bodes well for her future relationship with the father.
While there are some risks that the mother will not continue to foster a meaningful relationship with the father in the future these are outweighed by the risks inherent in changing the child’s current parenting arrangement whereby she lives with the person to whom she is primarily attached and with whom she has lived her entire life.
In general I have made orders as proposed by the ICL with the significant exception of the restraint sought against the mother. For the reasons previously given I do not consider that the injunction on the mother residing with the maternal grandmother is in the child’s best interests. Further I have made some small amendments in relation in relation to the changeover location which will be ordered to occur at a place closest to the midpoint between the parent’s homes. I also do not consider that it is in the best interests of the child for her father to ensure that she attends extra-curricular activities in the mother’s home town during his time with her. It is hoped however that the parents are able to agree upon an arrangement for the child to participate in extra-curricular activities while in the care of each parent. Otherwise the orders are as proposed by the ICL.
For the foregoing reasons I make the orders as set out in the forefront of these Reasons for judgment.
I certify that the preceding two hundred and thirteen (213) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 5 February 2019.
Associate:
Date: 5 February 2019
0
3
1