Conrad and Killen
[2017] FamCA 737
•22 September 2017
FAMILY COURT OF AUSTRALIA
| CONRAD & KILLEN | [2017] FamCA 737 |
| FAMILY LAW – CHILDREN – where allegations are made by the mother against the paternal grandmother and pursued to the point that the father’s time with child is affected – where mother retracts allegations and apologises – where the more pressing issue is the experts’ views about mother’s attachment to the child – urgency in changing residence. |
| Family Law Act 1975 (Cth) |
| Donaghey & Donaghey [2011] FamCA 13 M v M (1988) 166 CLR 69 Napier v Hepburn [2006] FamCA 1316; (2006) 36 Fam LR 395 R & C [1993] FamCA 62 |
| APPLICANT: | Mr Conrad |
| RESPONDENT: | Ms Gillen |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 1582 | of | 2015 |
| DATE DELIVERED: | 22 September 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 12. 13, 14, 15 September 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Dickson QC |
| SOLICITOR FOR THE APPLICANT: | Carew Counsel |
| COUNSEL FOR THE RESPONDENT: | Ms Burt |
| SOLICITOR FOR THE RESPONDENT: | Westminster Lawyers Pty Ltd |
| Ms Boymal Victoria Legal Aid |
Orders
That all parenting orders relating to B are discharged.
That the father have sole parental responsibility for major long term decisions relating to the child.
That the child live with the father.
That unless the parents agree otherwise, the child spend time with the mother as follows:
(a)For each of the weekends commencing Saturday 23 September 2017 and ending on Sunday 5 November 2017, on each of the Saturday and the Sunday from 10.00am to 5.00pm on each day; and
(b)During each alternate weekend commencing Friday 17 November 2017 from 3.30pm on the Friday (from the father’s nominated kindergarten, day care or school) until 9.00am on the following Monday (to the kindergarten, day care of school).
Until and including 5 November 2017, all changeovers take place at the C Store, Suburb D supervised by the family contact service at the joint expense of the parties.
That in respect of the mother’s time and communication with the child, in addition to that set out in paragraph (4) hereof, and specifically concerning special occasions, that time may be as agreed in writing or in a parenting plan.
That the order for the appointment of the Independent Children’s Lawyer is discharged.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all applications are otherwise dismissed save as to costs.
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 Conrad & Killen 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 MELBOURNE |
FILE NUMBER: MLC1582 OF 2015
Mr Conrad
Applicant
And
| Ms Killen |
Respondent
Independent Children’s Lawyer
REASONS FOR JUDGMENT
This parenting dispute concerns the child B aged four years. The two fundamental issues for determination are:
(a) which of the parents is best able to meet the child’s needs?; and
(b)of the parties’ proposals, which will best enable the child to enjoy the benefits of a meaningful relationship with both parents?
B’s parents are Mr Conrad (“the father”) and Ms Gillen (“the mother”). Each had the assistance of legal representation throughout the hearing and the court also had the benefit of an Independent Children’s Lawyer.
Of the two issues, in respect of (a) above, the experts say that the child is attached to the father but his attachment to his mother is insecure; consequently, the father is better able to meet the child’s needs. In respect of (b), the answer depends on whether or not the court accepts that the mother has significantly changed her view about the father.
This second controversy focussed on serious allegations of sexual impropriety made by the child’s mother Ms Gillen (“the mother”) against the child’s paternal grandfather. No impropriety was raised about the father other than an assertion that he was supportive of the grandfather. How that unfolded and why the father was unilaterally excluded from the child’s life by the mother (even for short periods) is explored below.
Suffice to say, I find:
(a) the father is the better parent able to meet all of the child’s needs but particularly his emotional needs; and
(b)I cannot accept that the mother’s position (and sadly that of all of her family) is such that I could be confident endeavours would not be made to damage the relationship between the child and his father and not just with sexual abuse allegations.
Put simply, the mother’s position was that the child should remain in her care whilst she endeavoured to rectify the attachment problem identified above. As I discuss below, the flaw in that proposal is that the expert’s evidence is that the required therapy is a long process. In the meantime, the child experiences difficult behaviour issues that need attention.
I find that it is not in the child’s best interest for that long process to take place whilst he remains in the mother’s care.
As for the mother’s views of the father, only time will tell whether she is genuine in ensuring the father’s role in the child’s life is seen as valuable and important. That has been missing until now. That too is explored below.
The sexual abuse allegation
For the reasons that follow, the sexual abuse allegations are less significant now because of the mother’s position at trial. Their context however is important. The background provides context.
Background
The background to the child’s birth is uncontentious. The parties lived together for a short time between March 2012 and July 2013. In between those dates, the child was born.
B is presently a healthy child who attends a day care centre. He has a good relationship with his father whom he sees during a fortnightly regime totalling three days and nights. That was not always the case.
In July 2013, the child was six months old. By arrangement between his parents, the child began spending one overnight per week with the father. There is a contentious issue about whether the arrangement was mutual but it is not necessary to make any finding about that because of what soon happened thereafter. Having said that, an inference about the parents being in conflict may be drawn from the fact that by the child’s first birthday, changeovers were occurring at a police station.
Despite the need for some supervision at handover, the child at 20 months of age, began spending another overnight with the father. This was something agreed and encapsulated in a parenting plan. They also agreed on therapeutic counselling.
The father’s frustrations with what he saw as interference in his time with the child (which the mother disputes), led him to issue an application in the Federal Circuit Court. At the time, the mother responded. Each alleged that the child was at risk of harm in the other parent’s care. In the case of the father, he alleged the child was exposed to verbal abuse towards him from the mother. In the case of the mother, she alleged that the father was aggressive at changeover.
In April 2015, both parents attended psychologist Dr E who expressed concern about the time the child was spending away from the mother because of his age. The child had difficulty separating from the mother and it was obvious to Dr E.
Dr E prepared a comprehensive report in 2015 but in the context of the dispute that exploded a year later, she observed the parents convivially trying to settle the child. She thought both parents were focussed on reassuring him but the handover from the mother to the father was unsuccessful. A later appointment to that initial observation, was more successful.
This was all unusual because the child had been accustomed to separation from the mother because, in addition to time with his father, he had also been attending long periods of day care when the mother had to work. Dr E considered the father lacked insight and imagination but was a devoted and loving father. She was of the view that the child had been exposed to significant parental conflict at changeovers. Subsequent experts provide a much less complimentary view of the mother but no criticism of the father.
The problem was the child’s separation from his mother. The solution according to Dr E was to reduce time with the father to one overnight per week and a shorter visit “a few days beforehand”. The father accepted that, as can be seen from the orders made in the Federal Circuit Court in July 2015. Sadly for the child, the orders did not resolve much.
Between July 2015 and April 2016, there were ongoing problems that seemed to be about the father’s parents collecting the child from day care. There was also verbal conflict when the parties met at changeovers.
Each parent complained about the other concerning that period but specific incidents were not explored in cross-examination. Each perceived the role of the other parent differently and the few meetings between them were unpleasant. The opinion therefore of Dr E about conflict resonates.
In April 2016, without warning, the mother’s solicitor sent a letter to the father’s solicitor saying that “allegations” had been made but no details were provided. The letter said there was an open investigation by the Department of Health and Human Services in relation to the child’s safety and wellbeing. That was misleading.
When cross-examined, the mother conceded she should have contacted the father directly but I find that would have been unlikely because of the undisputed conflict going on at that time.
Significantly, the father’s time was unilaterally stopped by the mother. The critical question is why that was necessary.
By May 2016, anticipating some form of investigation as set out in the letter, the father had heard nothing further so he approached authorities who advised him that not only was the investigation already concluded but it concerned his father and not him. The mother’s silence was said to be attributable to the lack of response to her by authorities. I accept she had not received a formal response but she knew the authorities found nothing to work with. The concerning aspect was her concession at trial that she should have contacted the father. Over a year later, still nothing had been said to the father by the mother.
It is of assistance to observe here what these allegations were. The mother said that in April 2016, three year old B pulled his penis out of his pants and said:
I want to put my doodle in your mouth and wee in it.
It was the mother’s evidence that she told the child to stop his behaviour and then distracted him. She then said she saw him try to put his penis in a doll’s mouth. Days later, she said the child said that his grandfather “touches the child’s doodle”.
These events precipitated the mother taking the child to a police special abuse unit. Although no evidence was called about this, the mother said she was advised by the police that the child’s behaviour was not normal. Just what that meant and how that came about remains unclear.
Subsequent to the police visit, further statements were made by the child all of which were about the grandfather. All, until more recently, were made only to the mother.
The contentious evidence is that the child said nothing of note to the investigators whose role was concluded by the end of April 2016. The mother’s written evidence was that this lack of response by the child (then only three years of age) to the investigators was “unfortunate”. In cross-examination, the mother wanted to distance herself from what was her solicitor’s drafting but I find that when the affidavit was sworn, the use of the word was intended to mean she was disappointed that the child did not “disclose”.
On the advice of the police, the mother sought a psychologist’s assistance and took the child to Dr F for 15 visits. A joint approach to Dr F was suggested by the mother’s solicitor but the father did not agree to sign the letter of instructions. This “joint approach” was remarkable. The mother’s solicitor wrote what might be described as a joint set of instructions but it was never going to be accepted because it contained concepts that could only be seen as an acceptance that abuse had occurred. In cross-examination, the mother could not understand the father’s reluctance. More importantly, the report by Dr F prepared after 15 visits gave me little comfort that the psychologist was doing any more than trying to obtain a disclosure from the child. She certainly did not get one. There was an impasse by the middle of 2016 about what sort of time the father should be having.
The mother’s solicitor then wrote to the father’s solicitor suggesting that time be resumed with the father on a supervised basis provided he would not allow contact between the child and the grandfather. The evidence does not indicate why the father needed to be supervised other than the emphatic rejection by the father of any impropriety by the grandfather. It remains unclear why the father was not seen as protective of the child.
The father issued proceedings in the Federal Circuit Court which were then transferred to this court. No contact between the father and the child occurred from when the mother unilaterally stopped it until the court orders were made. In the interim, the mother said that the child made further statements about the grandfather.
On 28 September 2016, a hearing was undertaken by Senior Registrar FitzGibbon. The Senior Registrar sought personal undertakings from the paternal grandparents. In respect of the grandmother, an undertaking was given that she would not allow the child to come into contact with her husband and in respect of the grandfather, an undertaking was given that he would not come into contact with the child.
The Senior Registrar then ordered that the child spend time with the father in the presence of the maternal grandmother. His time was to be build up to 3.00pm on Saturday until 6.00pm on the Sunday with the maternal grandmother facilitating the handover if it was not at the day care centre.
The Senior Registrar also ordered that the mother suspend counselling with Dr F unless there was written agreement from the father and the Independent Children’s Lawyer.
The Senior Registrar’s reasons
During the hearing, it became apparent that the reasons given by the Senior Registrar at the Magellan hearing in September 2016 were never transcribed or published. I indicated that I would make those reasons available to the parties should they desire to see them but having read the transcript, it is uncontroversial that the Senior Registrar expressed concern as to exactly what Dr F was doing. This becomes important when I look at the number of people who had expressed concerns about the mother’s focus on the sexual abuse allegations.
The Senior Registrar gave very brief reasons for both the resumption of time and the restriction on the child seeing Dr F. He said:
[3]…Insofar as the arrangements with [Dr F], it’s my view that should be suspended…There’s relevance evidence about it. There’s sufficient in that material that does cause me concern that it’s not entirely clear to me as to the full nature and construct of the interventions
[4]But it’s a very intensive process that has been undertaken, with 15 sessions to date. But I would need further and better evidence…
…
[10]There is nothing clear about why ([B]) behaves as he does. There is supposition. There are the matters which mother deposes as to his disclosures to her. They are contentious. It’s why [Dr F] is also contentious in the sense that, on view as put, but I would hope not, and in acting on the best advice, at least if the process is designed to see if he does make some disclosure, as against working on some other bases. And I make the general comment, as I do in many cases, that if the counselling is designed to assist a child on the basis that they are a victim of such abuse where it is not entirely clear that something has occurred, and that the only evidence of that which is said to have been his comments and things said or done to his mother or in her presence and no one else, then it must be called into question.
…
The parties had reached agreement and that was incorporated into the order, for the mother engage with psychologist Ms G for therapeutic reportable counselling “in relation to the child’s anxiety” and for the father to attend if Ms G directed. That occurred and the court now has the benefit of the evidence of Ms G.
The mother’s change of mind
During 15 months between 2016-2017, of the allegations about the paternal grandfather, and the concerns about the father’s incapacity to protect the child, the mother had access to a number of expert views.
First, the mother had a report by consultant forensic psychologist Ms H. Her report was dated 20 December 2016. Her evidence was contained in an affidavit filed 23 January 2017 and she was not required for cross-examination. Her expertise was not questioned. She wrote:
Consequently, based on the available information, the combination of (the grandfather’s) absence of risk factors in conjunction with absence of victim risk considerations for [the child], culminates in a Low Risk Situation for sexual abuse with no clear present risk. (Underlining as per the original)
The mother also had the views of the Department of Health and Human Services and police. It would seem that there were at least three visits to police stations and save for what she asserted that the child said to a Constable J, (and which the constable did not record in his report) those investigators acknowledged that nothing had been said to them by the child to corroborate what the mother alleged he had said to her.
From March 2017, the mother had the affidavits of the paternal grandparents. Specifically, she had the affidavit of the paternal grandmother who said:
[7]Aside from the Wednesday afternoon of 9 September 2015 when (the grandfather) spent two hours with [the child] I can’t recall a time when (the grandfather) was ever on his own with [the child]. (The grandfather) and I have slept in the same bed throughout the 41 years of our marriage. (The grandfather) has never been in bed with [the child].
Despite the evidence of the grandparents and that specifically of the grandmother, in her trial affidavit filed 21 days later, the mother said that the child had stayed in the care of the paternal grandparents in the absence of the father, and that he would sleep “in the same bed” as the grandfather whilst the grandmother slept in a separate room. She went on to say at [41] that the source of her information was initially the child who said that he had disclosed to her on “various occasions” that he slept in the same bed as his grandfather but that the child’s statement was corroborated when she spoke to the father on 26 February 2016.
The father filed an affidavit in reply where at [13(c)] he said that he denied the allegation and specifically then said:
I have never discussed my parents’ sleeping arrangements with (the mother) and at no time did I tell her that [the child] slept alone with my father and that my mother slept in another room. That is not and has never been the case, and I have never said it to (the mother) that it was.
Such a direct conflict in the evidence gives rise to an issue of the truthfulness of both parties.
For a number of reasons discussed below, I accept the father’s version of evidence generally and specifically, on the balance of probabilities, I accept his version of that conversation.
Psychologist, Ms G was dealing with the parties and in January 2017, she wrote [page 5]:
The allegations of abuse against the paternal grandfather are concerning and this is an area that will require further investigation by the courts.
I have already mentioned the psychologist Dr F whose attendances on the child were stopped by order of the court in September 2016. On 4 July 2016, Dr F wrote:
To date there have been no verbal disclosures and I am not wishing to rush or overly shape the play process. To avoid further traumatising [the child] we are sticking to symbolic play rather than use any toys that are too directly related to any potential trauma. In combination, (the mother’s) reported history of disclosure (that I have no reason to doubt), [the child’s] severe anxiety, regressed behaviour and themes of burying babies in play suggest that there may well have been a significant trauma that warrants ongoing monitoring and treatment. In my opinion there is sufficient indication to recommend protection of young the child from the paternal grandfather in terms of further grooming and/or abuse, and from any family dynamics that could serve to reinforce denial of abuse and trauma.
Although that report may have been intended to be some form of updating or interim report, it was directed to the solicitors for the mother and was no doubt intended for the purposes of evidence. Indeed, on 13 July 2016, that report was attached to an affidavit for the purposes of the then court proceedings and, as late as 8 September 2017, the mother’s outline indicated she intended to rely upon it for the purposes of this final hearing. It is remarkably short on detail and to the extent that the Senior Registrar in September 2016 expressed concern about the purpose of the therapy, I agree.
On 1 May 2017, Ms G did a second report and wrote [Page 10]:
The future steps will need (the mother) to suspend her focus on alleged sexual abuse by the paternal grandfather, as this only serves to re-traumatise [the child] if she still sees [the child] through that lens and behaves in such a manner to suggest to [the child] that the paternal household is (a) risk to him. This is a challenge for (the mother) and given her stated need to “protect the child” would be difficult to achieve. (My emphasis)
That warning was that there was another issue for the child that was more problematic. It arose from his behaviour and, as has become apparent, related to his lack of attachment or insecure attachment to his mother. The mother did not suspend her focus as suggested by Ms G. In early August, the parties attended upon the family consultant Ms L and of the mother’s views, the family consultant wrote:
[29](The mother) resolutely maintained that [the child] was at risk of on-going sexual abuse should he live in the primary care of his father and alleged that (the father) had continued to expose [the child] to risk by permitting the paternal grandfather to spend time with [the child] in contravention of the current orders.
The mother also told the family consultant that she had read the psychosexual assessment of the grandfather (by Ms H) and thought that it was “unreliable given that a number of the tests had been carried out at home. She alleged that these were likely to have been completed by someone else. Thus, not only did the mother reject the opinion, she alleged a conspiracy or cover-up.
Of all of that information, I have no doubt that the most challenging for the mother would have been the observation of Ms G that she needed to suspend her views for the purposes of addressing the bigger issue to which I turn in a moment. She did not do so.
The case outline document
On 8 September 2017, just days before the commencement of the final hearing, the mother’s then solicitor filed an outline of her case. In it was a statement which read (Page 12):
Throughout these proceedings the mother held a reasonable concern that [the child] had experienced sexual abuse, based on [the child’s] allegations to her, and the allegations made by [the child] to family members. She accepts the relatively recent consensus of the professionals that [the child] is not displaying signs of trauma likely to have been caused by sexual abuse.
The mother accepts that the evidence does not support a finding that [the child] has been sexually abused by his paternal grandfather, nor a finding that he is an unacceptable risk of harm in the care of his father or paternal family. She does not seek findings in those terms.
The first of those two paragraphs asserts that the mother was acting reasonably. Two points need consideration here. First, nothing corroborates the mother’s evidence. I reject any suggestion that extended family members might corroborate her evidence about what the child said to her because that was not only well after the event but there had also been intervening expert assistance from Dr F, police investigators and Department of Health and Human Services employees. Secondly, it is concerning that therapist Ms M who had numerous sessions with the child, described his language skills as “limited”. The mother’s evidence about what the child said to her was unequivocal. It was not part of the proceedings to examine whether or not the child did or did not say the words asserted by the mother. Indeed, it was not suggested to the mother that he did not say them. However, the warning of Ms G and the concerns expressed by Ms M that there were other issues than the sexual abuse allegations, went unheeded.
The first day of the hearing
The mother adopted as her evidence in chief, the contents of the affidavit she had filed. That was confusing because the outline of case document indicated that she was not seeking findings that the child was at risk in the father’s care nor indeed, in the care of the paternal family. She did not seek any permanent injunctive orders to preclude contact between the child and the paternal family. Any reading of her evidence in the context of the family consultant’s report would indicate that she strongly believed that the child had been sexually assaulted.
In cross-examination however, she volunteered that she had always had an “open mind” about the allegations. She conceded never having said that to the father, and she thought she should have contacted him straight away.
Furthermore, having adopted her affidavit material as her evidence in chief, she acknowledged that she “probably” should have put something about her “open mind” in her affidavit. When asked whether she believed the events occurred, her response was that she was “not sure”. When asked how long she had had this mindset of an open mind, she described it as the last couple of months. Her explanation for having changed her position was when she read all of the professional reports. She was given a second opportunity to put her position about the allegations and she repeated that she was still not sure whether they happened or not. She acknowledged having received the psychosexual analysis report on the grandfather and acknowledges that she had said that it was a flawed process. When asked whether she accepted that the grandfather had not committed the atrocities she had alleged, insofar as there may have been any other possibilities, she said she did not know. She confirmed also that her change of position to an open mind had never been communicated to the father through her lawyers. She explained that was something to do with the fact that she did not have money to continue to have her lawyers act for her.
Thus, at the end of the first day of the hearing, the mother’s position was certainly not as strident as indicated in her affidavit material or as she had expressed to the family consultant some four weeks before. That soon changed.
The mother’s statement
In the midst of her cross-examination but at the commencement of the second day of the hearing, the mother announced that she wished to make a statement to the court. She was offered, and she declined, an opportunity to obtain legal advice before making the statement.
The mother said that overnight she had reread all of the expert’s materials and accepted that there was no foundation for the abuse allegations and she publicly apologised to the grandfather, the grandmother and the father. Suffice to say, neither the father nor the Independent Children’s Lawyer accepted the statement as a basis to stop the hearing, alter their planned proposals nor, answer the two questions I earlier mentioned in the mother’s favour.
An open mind?
As the cross-examination exposed, the mother’s mantra was that she had an “open mind” about the allegations prior to making the statement just mentioned. When pressed, she asserted that she was only acting protectively of the child based on the advice of the Department of Health and Human Services because of what the child said. She claimed that the advice of the Department was to cease the father’s contact with the child. I find that evidence has a hollow ring about it because of what the Department’s records show.
The mother’s extended family and their views
In addition to affidavits filed by the maternal grandmother and her husband along with the child’s adult sister, the mother also relied upon evidence of two family friends. Because of the statement above, counsel for the mother indicated that she was no longer relying upon the evidence of the child’s sister or the two family friends but continued to rely upon the evidence of the maternal grandparents. The evidence of the sister and the two friends is not relevant to this determination save for the fact that it was filed for the purposes of corroborating the sexual abuse allegations. Nothing was said by the mother to indicate that those people had distanced themselves from those allegations. That is troubling because of the evidence of the maternal grandmother.
Ms N
Ms N is the maternal grandmother. She cares for the child one day per week but she has the same difficulties with his behaviour as does the mother. Her evidence was contained in an affidavit sworn in March 2017.
The maternal grandmother said that after the April 2016 report to police, the child’s behaviour regressed. Here she was referring to hygiene and toileting matters. She saw the child playing with his penis and thrusting his pelvis at her. That was followed by aggression in the child. The significance of this evidence was that the grandmother’s view was that these behaviours “generally” coincided with the post-contact period with the father. That was undoubtedly a criticism of the father yet her own daughter conceded that the behavioural problems did not always follow those same periods.
The grandmother was involved in the first handover after the September 2016 orders and whatever she observed on that occasion, she felt the father was “very dismissive” of her concerns “and the child’s disclosures”. Her partisanship was thus evident notwithstanding the mother’s change of heart at trial.
In her affidavit at [27], the grandmother said that the child’s behaviour had escalated to the point that he begged and cried when he knew he was going to see his father and said “No grandpa, no grandpa”. That is not the evidence of the independent observers.
The grandmother described herself as intimidated by the father and she was fearful of him. No similar view was held by the mother. To the extent that there was a verbal confrontation between the father and the grandmother, both contributed but I consider the father was entitled to be frustrated as the allegations were against his father yet he was the one who bore the brunt of the conflict.
At [31], the grandmother said it was difficult to watch the child “so traumatised”. No other objective evidence supports such a conclusion. The trauma seemed to be a behavioural problem which neither she nor the mother could control. I have no doubt that the grandmother’s evidence was presented as a form of corroboration of the mother’s serious allegations yet the change of heart meant that the grandmother’s observations were of little assistance.
The maternal grandmother was a loquacious person and very certain about her views. One might have thought that she would have been taken by surprise by the apology and retraction statement of her daughter. That was not to be the case.
When pressed, the maternal grandmother made clear that she still had no doubt that the paternal grandfather had perpetrated the atrocities that the child alleged. She thought that nothing would dissuade her from that view. When asked about her knowledge of the apology bearing in mind that her daughter had been warned not to discuss her evidence with any witnesses, the grandmother candidly acknowledged that she had been in an interview room when she heard her daughter speaking to her biological father (the grandmother’s former partner) to indicate that that apology course was about to be taken. That did not dissuade her from her own view.
When the grandmother was asked whether there were any other possibilities than the worst, she said that she thought that the child might have seen a “porno” movie or heard a conversation. When asked whether she had told people that the grandfather was a paedophile, she acknowledged she had but only to people who knew about the incident and people with whom that she was well acquainted. Clearly therefore, not only was the grandmother partisan but unwilling to consider any other prospect than the worst.
One piece of evidence that gives me great concern not just about her partisanship but her truthfulness is the fact that on 5 September 2016 she described witnessing “[B’s] first disclosure”. She was with her husband in the lounge room of her home where she said that the child said words to the effect of “[O] licks my doodle and so does grandpa”. She said that both she and the husband were shocked by the comment and immediately told the mother when she arrived to collect the child. However, three weeks later, when a second statement of a similar nature was made by the child, she went with the mother to the police to “report the disclosure”. Why the second statement was more important than the first such as to warrant police intervention remained unsaid. There was a court hearing on 26 September 2016 and no reference had there been made to the 5 September “disclosure”. When asked why she had not gone to the police station in respect of the first allegation, all she could say was that she could not explain it.
I have sufficient doubts about the accuracy of the grandmother’s reporting to find that her evidence does not assist me save that I would be very concerned about whether she would encourage the child’s “disclosures”. There is no application for any injunctive relief and it may be that with the mother’s change of view, it is not necessary because she will be primarily responsible for the care of the child in the times when he is in her care.
B’s behavioural problems
The other remarkable fact here is how disjointed the child’s life has been. I accept without any hesitation that the mother needs to be employed. Her employment has (and I suspect continues) to impact upon her lack of attachment to the child. Conversely, the father who has had less consistent periods of time with the child, gives all the appearance of being able to provide a secure home for him and the child exhibits no behavioural problems in his care.
B has lived with the mother and his relationship with the father has been disjointed. Despite significant breaks, the child now settles well with the father. The child goes to day care four days per week. They are long days. One day each week, he is cared for by his maternal grandmother. Only every second weekend does he spend time exclusively with the mother and her family.
The limited time otherwise during the week days has not cemented the relationship between the child and the mother. The manifestation of the problem is seen in significant behavioural issues in the mother’s care. No such problem exists in the father’s care. That manifestation has been seen by a number of experts and they have described both the problem and how they needed to be addressed. The mother has not taken those steps.
B has seen various professionals and if added to that is four visits to police stations, it is hardly surprising that the Department of Health and Human Services expressed the view that the mother had to stop those activities. Added to the amount of time that the mother is working and the limited time that she has with the child, the lack of attachment is partly explained.
The urgency
The competing proposals here are stark. The father’s position is that the child should be removed into his care and the mother be given an opportunity to obtain therapy for her own assistance including establishing an attachment to the child. That would still require the child’s involvement. The mother’s position is that the therapy needs to take place but that it should be done with the child in her care.
The distinction between the two positions can be decided by reference to how long this process is going to take. Ms M indicated that it would be a long term process. Of great significance here is the unchallenged evidence of the family consultant who said:
[76]While it is recognised that [the child’s] relationship with his mother needs to be maintained and repaired it could be considered that [the child’s] current developmental stage indicates his immediate need for a stable, predictable, nurturing and emotionally attuned parenting experience. (The father) impresses as capable and equipped to provide [the child] with quality primary care and to fulfil his developmental needs. Such an environment, coupled with appropriate therapeutic interventions, would enable [the child] to explore and resolve the intrinsic difficulties in his relationship with his mother. As [the child] is about to begin formal education it is imperative that he is in the primary care of an emotionally attuned parent who is able to fully support [the child’s] transition into school whilst maintaining an ongoing relationship with both parents. It appears from the material available to the court that (the father) is best placed to assist [the child] to succeed in this transition period where his behaviour is contained and calm without the anxiety prevalent in his relationship with his mother. In considering the long term emotional needs of [the child], this assessment would suggest that these would likely be best met in the primary care of (the father), which whom he is reported to have a secure and healthy relationship.
Rather than concentrate on the recommendations of the family consultant, my view is that it was more important to consider her opinion. She said:
[77]While (the mother) expressed a commitment to maintaining [the child’s] relationship with his father, the writer lacks confidence that this is a sustainable commitment. The history of this case indicates that she has repeatedly withheld [the child] from time with his father and although she consents once the matter has returned to court, this is short lived.
The family consultant considered that the mother’s view about the role of the father indicated an inability or an unwillingness to facilitate a meaningful relationship between the child and his father. I accept that evidence and accept that opinion. I find that there is an immediate need for a stable, predictable, nurturing and emotional attuned parenting experience for the child.
With the child in the care of his mother, the time he spends with her is limited because of her employment requirements. The limited morning and evening time means that the child is being transported to day care or from day care where he spends with a variety of others. One day per week he is in the care of his paternal grandmother whose views about not just the father but also the grandfather, are very concerning in the context of the statement by the mother. There are days where the child is collected from day care by people other than the mother because of her work commitments. I stress that is not a complaint about a working mother but a fact of life that the child here is not able to settle into a secure, stable or predictable routine.
The mother volunteered in evidence that she could work from home but no such evidence was called nor was it corroborated. The father on the other hand established to my satisfaction that he was capable of caring for the child by working at home and that was corroborated by his employer.
An assessment of the family through the eyes of the child
One remarkable piece of evidence highlights the dilemma. The child was asked by the family consultant to describe his family and whilst he included his mother, he included his paternal grandparents but not his maternal grandparents. He also included his sisters’ partners but not the sisters.
Ms G’s evidence
Ms G
The evidence of forensic psychologist Ms G was that when observed with his father, the child was engaged and they played Lego blocks. His behaviour was in line with his developmental age. His language was simple and defined with no adult words evident. She observed that the father was attentive, helpful and supportive of the child and he in turn, responded well to his father.
When observed with his mother, the child’s demeanour was entirely different. The child had built some blocks with his father and wanted to show his mother what he had done. The mother began to collect the blocks and put them away in a box which upset the child and he began to call for his father. From the perspective of Ms G, this was important and symbolic for the child. When the mother tried to reason with the child by offering him that they were to go to a party, the child ran around the room, angry, sobbing and having a distressed emotional dysregulation event.
When the grandmother was questioned about the child’s behaviour aspects, her best explanation for why the child behaved as described above was that everybody had a bad day now and again. She was adamant that the explanation otherwise was that it occurred after the child had come back from weekends with his father. That turned out to be incorrect. Whilst it is true that there were weekends immediately after which the child went to his grandmother, the child was unmanageable and so the mother and the grandmother changed the day around to the Tuesday. That meant that the problem fell to day care. It certainly did not resolve the dilemma.
The day care centre also reported difficulty with the child.
Ms G reported that the mother was inadequate at coping with the child’s outburst and blaming the child’s time with his father. Ms G said:
(The mother) was not able to absorb the writer’s comments that the engagement between [the child] and his father was positive and no such behaviours were displayed.
Ms G also reported that what had been described about the child’s behaviour with extended member of the father’s family saw no replication of the behaviours described at day care. She wrote:
If the play descriptions between [the child] and his cousins are accepted, then this calls into question the source of his difficult behaviour at child care.
The evidence about what was happening in the father’s extended family visits with the child was not challenged. There is no reason for me to doubt the accuracy of that information and accordingly, the evidence of Ms G resonates.
In summary, Ms G said:
The writer has seen the child’s contrasting behaviours with his two parents. The Contact Service has also seen how the child is chameleon like with his two parents. From the writer’s observation and the Contact Service observation the child is not at risk with his father. (The mother) however now has a lens that the paternal family is a hazard and dangerous to the child.
Ms G’s observation must be seen in the context of the recent change of view of the mother. It could no longer be said that the paternal family is a risk for the child at all.
Ms G contemplated what the child needed and said:
If it is accepted that [the child] has been subjected to some level of trauma, given his age, a sensory-informed trauma assessment and treatment is called for. Apart from helping [the child] to make sense of his world, attachment treatment is important. Trauma is often a source in disrupted attachment. Support to strengthen the attachment of [the child] to his mother is a treatment issue. At present, [the child] has a positive attachment to his father and this should be maintained and not disrupted hence a reconnection with his father is vital This will diminish some level of attachment trauma.
The evidence of Dr K
Dr K is a consultant psychiatrist whose evidence was not challenged nor was he called to expand upon what he said in a report prepared in July 2017.
Dr K had no concerns about the psychiatric health of either parent however reported that the mother told him that the attachment behaviours of the child did not emanate from her home environment (as Ms G had said) but rather, the primacy of her relationship with the child was not allowed to continue and settle in the normal manner due to the father’s various demands and the ongoing acrimony and tension which exists between them to this day. (See page 5).
The mother had an obsession until now, of endeavouring to establish some form of guilt on the part of the paternal grandfather. That has undoubtedly blurred the bigger issue of the attachment problem. As she described to Dr K, the problem relates to the demands of the father but even if that was so, it does not overcome the fact that she has no solution for an immediate amelioration of the child’s problem.
Ms M
Ms M described herself as psychotherapist who has a Masters Degree in Social Work and other qualifications. She has a number of years of experience and I found her evidence helpful. Ms M provided the court with the unique opportunity to watch how the child related to each of his parents over a space of seven months. Ms M described the therapeutical session as making use of directive and non-directive play therapy. She said this program was done to help children overcome their mental health issues and build emotional stability.
In February 2017, when the child had his time with his father increased, the mother reported complaints about behaviour at day care including the child throwing blocks and other parents complaining about him. In March 2017, the child attended Ms M with his father after a weekend in his father’s care. The child was calm and relaxed and showed no signs of stress, anger or frustration. Ms M described the child as seeking out his father’s attention and it was observed that there was positive interaction and bonding between them.
After that session however, the mother reported to Ms M that the child was “suffering from extreme anxiety and was physically ill and was vomiting”. The mother reported to Ms M that she had to call her mother to help settle the child down. The metaphorical finger was pointed at the father.
In March 2017, the mother reported to Ms M that she was feeling powerless and helpless but importantly, that no-one was listening to the child.
In April 2017 it was to Ms M that the mother reported the killing of the child’s chicken and the turtle and also that the child had hurt the family dog. At that time, she also reported that the child’s anger had got to the stage where he hit her. She told Ms M that everybody was looking at the “custody issues” but nobody was getting the picture of what was really going on. The criticism by the mother was of everyone except herself.
Later in April, the child’s behaviour seemed to calm down a bit and he showed no signs of aggression or anger. However by the end of April, the child was describing his mother’s anger.
This was the half way point in the work of Ms M and her concern was that there was an insecure-ambivalent attachment between the child and the mother. She described the child as being confused about attachment.
Ms M reported that the child’s confusion about the whole process may also reflect his “mirroring” of his mother’s behaviour as he was in her care for most of the time. She was also not particularly enamoured with the confusing history provided by the mother.
By May 2017, Ms M had had an opportunity to observe the child with his father. She described the natural bond where there were lots of laughs, touches, enjoyment and problem-solving in the play. By June, she saw father and son playing together and no aggression or stress in the child. In the same month however, the child was brought to Ms M by the mother and he was hesitant wanting his mother to attend the session as well. That seemed inconsistent with what Ms M was observing in relation to the father.
By July, Ms M had an opportunity to see father and son again and she reported the same observations as she had seen previously. In the same month however, when the child was brought in by the mother, he pulled his mother’s hair and would not listen to her attempts to discipline him. The mother struggled to get the child to settle and, to use the words of Ms M, “the whole situation was observed to be quite chaotic and out of control”.
In August 2017 Ms M again saw father and son and simply reflected what she saw previously. There were no problems.
Ms M opined that there was a very strong bond and secure attachment between the child and the father and that it was consistent. She described the father as having a natural ability to engage and play with the child. On the other hand, she described signs of oppositional defiant disorder behaviour in the child when he was with his mother that were absent when with his father.
Ms M opined:
One the causes of ODD is environmental problems such as parenting skills which may include inconsistent discipline, abuse and neglect. Further indications is (sic) when these behaviour (sic) happens in more than one setting. It is therefore possible that the child may have present (sic) with mild to moderate ODD symptoms because his disruptive behaviour happens in more than one setting which is in the presence of his mother and her reports of these behaviour (sic) at day care and other settings.
Ms M had no doubt about the secure attachment between father and son and thought that the child would benefit greatly if he was to spend more time with his father.
It is important to observe that Ms M is not a psychologist. She did however have the benefit of the assessment of Ms G particularly in relation to anxiety. Whilst she opined about ODD, Ms M conceded that it was possible that it was pervasive in all situations.
No evidence better described the capacity of the parents than that of Ms M. She described the situation in which the child was brought to her rooms by the mother for a consultation and he was virtually uncontrollable. He ran around and was anything other than calm. When the child was brought by his father, the antithesis of that occurred. The child was seen to be reading a book sitting with his father and was extraordinarily calm. That sort of evidence was viewed independently by the family consultant.
I found the observations of Ms M very helpful because they were consistent with what Ms G had seen but also factually identified by others such as the maternal grandmother and apparently, the day care.
The evidence of the family consultant
Ms L was the family consultant who prepared the comprehensive report. It is unnecessary for me to deal with her evidence in much detail. Her evaluation was consistent with what the other experts had said save that when asked about her qualifications and ability to assess attachment, she said that it was not her role. Her assessment therefore was looking at how best to deal with the child’s needs. As I have already noted above, the family consultant was very concerned about dealing with the matter urgently. But in addition to that, the family consultant said that her recommendations were dependent upon findings by the court. In my view, having regard to the concession by the mother about sexual abuse, the only issue about which a finding is necessary is which of the two parents is able to find a secure attachment for the child in circumstances where the mother seems to be reluctantly conceding that there is a problem.
The family consultant observed that if the findings about sexual abuse allegations were against the mother, it would raise significant concerns with regards to her behaviour and mental health functioning but she then added:
And subsequently her capacity to provide the child with primary care.
That last observation draws together all of the other experts’ views. Attachment in this case is a significant problem for the child. The person who has been seen by the experts to provide the most stable relationship, is the father. Nothing in the mother’s presentation or her evidence would indicate that she has the capacity to do what the father can do.
The family consultant referred to all of the experts and said that the mother presented a somewhat confused picture of her relationship with the child reporting that her relationship was secure but then professed to engage with therapists in order to develop a more secure attachment.
In respect of what the mother reports, I have significant reservations. Dr K and Ms M thought that the mother had been to counselling but that was denied by the mother. She said she had made inquiries but there had been a long waiting list. Despite the long waiting list, she had done nothing further about it.
Ultimately at [73], the family consultant wrote:
Given (the mother’s) limited capacity to conceive that the child’s relationship difficulties may be to some extent located in the maternal home environment, the recommendation from Ms M that the child and his mother engage in a more intensive therapeutic intervention to build a stronger relationship between them appears likely to be met with some resistance from (the mother) who considers that the problem and responsibility for resolution lies with the father.
It is not at all clear what the mother ultimately believes but her whole case was that she would attend to therapeutic assistance on the basis that the child remained with her. In my view, the court cannot take that risk.
Conclusion about the mother’s position
In my view, this is not just a case of the mother making a statement which is too little too late. I do not accept that even if her apology was genuine, it would make any difference for the foreseeable future.
Section 60CC(2) requires the court in determining the best interests of a child to consider the benefit to that child of having a meaningful relationship with both parents. I am satisfied that on the evidence of the father, supported by his mother, there is no hatred or bitterness towards the mother. Each was asked about their views of the mother and each indicated separately that they were very disappointed by the role that she had adopted. I have no reason to doubt their evidence. Each was candid.
Credit of the parties
Earlier, I mentioned about the question of the credit of the parties. Nothing in the evidence of the father suggested to me that he was endeavouring to hide any of the flaws in his own character. For example, the maternal grandmother referred to the confrontation with the father and complained that he swore at her. The father admitted allegation but confirmed that he was extremely frustrated. The mother went to extraordinary lengths to subpoena the telephone records of the paternal grandmother and found text messages between the father and the paternal grandmother in which the latter had described the mother as evil. The paternal grandmother too, when cross-examined, made no effort to hide that disdain but made it clear that it was out of a sense of frustration for her own son. I accept that evidence as entirely understandable.
As historians, the father was much better than the mother. He certainly made errors but he conceded them. Those were innocuous.
I have already mentioned one concern about the mother but another was that she had inserted into her car an electronic device equivalent to a “dashcam”. She conceded that a letter written to the solicitors for the father that all recordings had been provided was untrue. Indeed, she conceded it was a lie. Initially she indicated that the electronic device automatically commenced when her ignition started but later in her cross-examination, her responses were more equivocal.
The most significant doubt I have about the mother’s evidence lies in the fact that she maintained that the unilateral ceasing of contact between the father and the child was on the advice of the Department. The Department records do no bear that out. It was the mother’s case that the records were equivocal but in my view, there would be no need for the Department to give that advice.
The mother maintained that the advice she received came from an intake worker. However, Exhibit F1 tended in evidence by consent shows the following:
Mother stated that she wanted direction from the writer as to whether to send the child for access to his father. Writer clearly stated to the mother that CP cannot advise her regarding this matter and encouraged her to seek legal advice. Writer attempted to explain the differing roles of CP and the FLC. Writer stated that as the mother had acted protectively in responding to the reported disclosure by contacting SOCIT and seeking legal advice there was no role for CP to become further involved at this time.
In circumstances such as occurred here where nothing was substantiated and the mother had access to legal advice, the record of the Department makes sense. The record gives me great cause for concern about the truthfulness of the mother.
Combined with my doubts about the mother’s truthfulness, is the lateness with which she adopted her position. That has to be also seen in the context of the events that occurred after the psychosexual report of the grandfather.
The mother’s pursuit of the grandfather
In 2016, having had the court determine that contact between father and the child should resume but with an undertaking by the grandfather that he would not be present, the mother left the court and engaged a private investigator in endeavour to establish that the court was being misled. She spent something between $4000 and $5000 to obtain from the private investigator a series of photographs. Those photographs which were not tendered in evidence but which were shown to the court depict the grandfather mowing the father’s lawns. This was on a specific day when there was to be some family event. From those pictures, the mother concluded that the grandfather had breached the undertaking and clearly that the father had allowed it to occur. The evidence went no further and I must infer did not support such a conclusion.
However, more disconcerting was that the photographic material was in the mother’s hands in March 2017 prior to the date upon which she filed her trial affidavit. No mention of it was made in the trial affidavit. To compound the problem, an affidavit was prepared some weeks later for the purposes of an interlocutory hearing designed to stop the contact arrangement continuing. For reasons best known to the mother, the affidavit was served but not filed. In that affidavit, the photographs appeared. The mother was unable to explain why all that happened but it was noticeable that on 12 May 2017, the parties agreed by consent for the father’s time with the child to resume forthwith. The mother’s application was otherwise dismissed. That was a consensual arrangement after the mother had unilaterally stopped contact.
By the end of 2016, the mother had the report of Ms H and as she later told the family consultant, the report was flawed because someone else had undertaken the tests. A reading of that report not only shows embarrassing concessions by the grandfather of details that had to be read by his own children let alone his wife, but they have a ring of plausibility about them and also truthfulness. If some other person had (as asserted by the mother) participated in those tests, where would that information have come from. As I have already said, only months later both grandparents filed affidavits and each was prepared to subject themselves to cross-examination.
Before the major concession was made by the mother on the second day of the trial, she required the paternal grandmother for cross-examination. Nothing was put to indicate that the grandmother would have countenanced that testing process to have been flawed or doctored.
In conclusion, I have significant doubts as to just what view the mother has about the father. She told the court that on weekends the child spends with her, the family gathers. With the views of the maternal grandmother and her husband combined with what the paternal grandparents were put through, I could not be confident that the subject of the child being at risk in his father’s care would not somehow be raised again. It is significant also that the mother agreed all undertakings should be discharged, she agreed and that there be no restrictions. That position is the antithesis of the views held by virtually all other members of the mother’s family and by the mother only weeks ago.
In assessing the benefit of the child to having a meaningful relationship with both parents, I have no concerns about the paternal family at all. I could not say the same of the maternal family and accordingly, I find that it is more likely than not that the child would benefit from having a meaningful relationship with both of his parents whilst primarily in the father’s care rather than the mother.
The submissions of the parties
The Independent Children’s Lawyer’s view was that the father should have sole parental responsibility for the child and that the child should live with him. There was great uncertainty in the mind of the Independent Children’s Lawyer about what time the mother should spend with the child but in my view, practicalities here will resolve that problem. Even if the child is “ratty” during the time that he spends with his mother including immediately thereafter, a reasonable gap of days will give him a chance to settle in the one stable environment rather than the disjointed arrangements that he currently has to endure
The Independent Children’s Lawyer submitted that the mother had to get her house in order and she expressed concern about the mother’s late change of mind about the sexual abuse allegations. The Independent Children’s Lawyer submitted that this change was scripted and when challenged, the mother was unable to answer satisfactorily why the change occurred. She submitted that the mother had been aware of these problems for a long time including as far back as the time that the parties spent with Dr E in 2015. She described the mother as disingenuous because of the fact that as late as 17 August 2017 when she received the family consultant’s report, she did nothing until the hearing. Even the outline of case document remained equivocal. Counsel for the Independent Children’s Lawyer described the mother’s position as a capitulation and that her mind was not open at all. On the basis of all of the evidence, I accept that submission.
It was submitted by the Independent Children’s Lawyer that there was no real acknowledgement by the mother of the nature of her relationship with the child. That underpins the need to do something urgently as described by the family consultant.
When the issue of the maternal family was raised, counsel conceded that she could not discount or exclude the possibility that the extended family would cause difficulties for the child but she agreed that at least the problem could be minimised.
Her real concern on behalf of the child was that the mother’s attachment problem was a long term process and the court could not take the risk of waiting out that time.
Counsel for the mother submitted that the history showed that there was a middle ground rather than as described by both other counsel. She submitted that if one examined the Magellan report prepared by the Department of Health and Human Services, it remained unclear just what the Department had told the mother and therefore, criticisms of the mother about unilaterally stopping time were unjustified. For the reasons that I have earlier set out, I reject that.
Counsel conceded the mother should not have taken the steps she did but submitted that they were genuinely held that the child was still seeing his grandfather. That was a reference to the unilateral actions that precipitated the court proceedings in 2017 and the private investigator. She said that the mother now conceded that it was not appropriate for her to have done what she did. That concession is very important but one wonders why, with the benefit of legal advice and expert witnesses all round her, she could not see that at the time.
In respect of the attachment problem, counsel for the mother submitted that the mother had engaged with a psychologist but it was the father who had pulled back from that on the basis that he said that the psychologist had said that it was not appropriate for her to be involved. It was submitted that the evidence is unclear about just what that psychologist’s position was but in my view, accepting the father as an honest witness, there is no reason for me to reject his evidence. Whatever the father’s position was, the mother did not persist.
It was submitted that there was a “breakthrough” in the mother’s views as early as May on the question of attachment. Counsel pointed to the fact that the mother was willing to continue to obtain assistance and that the court had to be cautious about the impact of any change upon the child. That is a matter that I shall deal with below under the best interest principles. In my view, even though there is no doubt that by May 2017, Ms M was addressing with the mother the attachment issue, little was done to fix that problem. No new evidence was presented to the court subsequent to the affidavit file in March 2017 and nothing was said to the family consultant in August 2017 to indicate that the mother’s focus was on getting the problem fixed rather than addressing the concern she had that the child was at risk in the father’s care.
Counsel for the mother conceded that the allegations had not assisted. I accept that but in my view, the dilemma for the mother was that she had been aware of the ignominy that the grandfather underwent by attending the psychosexual report yet he was even criticised for that until the courtroom apology. The suggestion that the mother changed her position after reading all of these professional reports has a hollow ring about it bearing in mind those reports have been around for a long time.
Counsel for the mother conceded that the change of position came at the “11th hour” but that it was not a “capitulation”. It was submitted that the mother’s perception was that the risk was genuine and that the difficulty for her was that no-one could say that the events had not happened. I reject that when one analyses the sequence of the filing of the affidavits in March. By that time, the grandfather had already undertaken the psychosexual report and Ms G was warning about the need to focus on the issue of the child’s attachment. Counsel for the mother submitted that the mother was deserving of a degree of sympathy. I reject that because the child endured terrible dysfunction as a consequence. Little was said about the entitlement of the father to sympathy.
In respect of parental responsibility, counsel for the mother conceded that the major issues associated with health and education should follow the parent who had the major time with the child but in my view, that would be artificial. Until such time as the cooperation occurs between the parties and their communication and trust resumes if it ever existed, there is little point in endeavouring to have these parents negotiate with one another.
In respect of any order that the child live with the father, counsel for the mother submitted that the appropriate time with the mother was from Friday through to Monday. That is contrary to the father’s position of Friday through to Sunday but in my view, it may be sensible to extend it into the Monday morning after a few weeks for the reasons that I set out below.
Senior counsel for the father went through all of the evidence and pointed to the difficulties that the father endured and the vehemence with which the maternal grandparents held their views about him and the grandfather. Nothing was going to change their views and that must have some impact upon the nature of the relationship between the child and them. He submitted that the unilateral suspensions were unjustified as could be seen by the subsequent orders. I accept that submission.
In terms of the specific two issues that began these reasons, I shall deal with them below in the best interest principles.
PRINCIPLES IN PARENTING PROCEEDINGS
Part VII of the Family Law Act 1975 (Cth) (“the Act”) is a mandatory provision which sets the framework for this decision.
The court is obliged to make the order that best meets the interests of the child. The two questions underpin much of the way the case was conducted but to determine best interests, the court is to consider the matters set out in s 60CC of the Act.
Sexual abuse allegations drove the immediate proceedings and it is timely to remember that the High Court in M v M (1988) 166 CLR 69said that the resolution of an allegation of sexual abuse is subservient and ancillary to the court’s determination of what is in the best interests of the child and cannot be diverted by the “supposed need” to arrive at a definitive conclusion on the allegation of sexual abuse. In her outline of argument, the mother said that she did not seek such a finding. M v M is a reminder that the pursuit of such a finding would have been a distraction from the primary focus in any event. But the mother drove that pursuit dragging the father and his family along with her throughout 16 months. Had her focus been on the second of the two issues, she might have been in a different position. In respect of the issue of sexual abuse however, the evidence has highlighted the importance of the court’s consideration of s 60CC(2)(a) in relation to how the child could benefit from a meaningful relationship with his father with the mother, (and I would add her family) having an obsession-like view that the child had been assaulted.
The sexual abuse evidence and particularly her views, indicates that the mother would not discuss anything with the father. That makes the prospect of any future relationship very problematic and unlikely.
In contemplating orders, s 60B makes clear the importance of the role of both parents in a child’s life. The Court is mandated to try and ensure the benefit of both parents being involved. Thus, the examination of how the mother has conducted herself gives some insight as to what might happen if she had the major caring role of the child. In that context, an examination of her late change of mind is important and as I have found, there is little comfort in what she now says. But, that is only one of the two issues.
It is in a child’s interests to maintain the relationship with both parents so there is a need to endeavour to ensure that whilst the mother endeavours to fix the identified attachment problem, the child can still develop his relationship with her without it being further stressed.
The evidence here is that the child has been anxious in his mother’s care. There is evidence that preceding changeovers, he was anxious to the point of vomiting. His behaviour was concerning because he was at times uncontrollable. He killed a chicken and a turtle. That surely cannot be the normal actions of a four year old child. All of this occurred in his mother’s care.
Returning to the allegations of sexual abuse and their connection with the father, it is still perplexing that even if there was some substance to the grandfather’s role, the initial unilateral action of the mother did not take into account the nature of the relationship between the child and the father. The mother’s focus was on establishing the truth of what she understood she heard but, had she contemplated what the High Court said in M v M, the more significant issues may not have been overlooked. I find that her pursuit of the allegations did great harm to the child. That can be seen in her recording of his conversations, her trips to authorities and her refusal to involve the father in the child’s challenging behaviour and indeed blaming him for it. The harm was not just noticed by the experts who provided evidence but it can be seen in the report of the Department of Health and Human Services who were troubled about systemic abuse perpetrated by the mother on the child. From seeking assistance and support through the Department, the mother exposed herself to their criticisms because of her behaviour.
The letters written to the father in the aftermath of the “disclosures” were misleading and irresponsible and the mother conceded as much in cross-examination by saying she should have contacted the father. Had she done so in a less than accusatory way, this problem may never have occurred. All of that affects the finding of the court in relation to both her capacity as a parent but also her responsibility. She had a number of people assisting her including lawyers. Her conduct was therefore inexplicable even if she believed that what the child told her might have had some foundation. It is understandable that the repair of any such relationship will be difficult. All of that however, affects the determinations of best interests in assessing what orders best meet the child’s needs. I cannot find that the mother’s sudden change of approach will change her attitude to the father’s important role in the child’s life.
Concluding the discussion of the sexual abuse issue, Counsel for the mother referred me to Donaghey & Donaghey [2011] FamCA 13 and Russel v Close (Unreported, Family Court of Australia, Fogarty, Baker and Lindenmayer JJ, Appeal SA45 of 1992, 25 June 1993). These authorities were raised in the context of whether the mother’s belief was reasonable and how should the court approach the issue of a parent who is placed in the situation asserted by the mother here.
In Russel v Close (supra)the Full Court considered the parent's belief that the child had been sexually abused and the effect of that belief on them as the primary caregiver. There are a number of immediate distinctions. They are the knee jerk reaction of the mother rather than a call to the father; the obtuse letter of allegation, the lack of consideration for the child’s language skills and the fact that the issue related to the grandfather but the effect of the unilateral action was to exclude the father.
The authorities refer to the court taking into account any anxiety of the mother and in particular, where such anxiety is likely to impact adversely on that parent's care-giving ability. That was not the situation here. The mother’s capacity to care for the child was already a problem as was indicated by the evidence of Dr E. The conflictual nature of the parties’ relationship that required handing the child over at a police station indicates that there was no love lost. This was not a situation of anxiety on the mother’s part but a situation where she took matters into her own hands instead of treading warily.
The same authority talks of the employment of a subjective test in assessing the genuineness of the mother’s belief. As the Full Court observed, where it appears on the whole of the evidence that such belief is entirely irrational and baseless, the genuineness of the subjective belief of the custodial parent will clearly be open to doubt. I have that doubt here for the reasons earlier set out.
The importance and the relevance of the assessment about the mother’s views must relate to the adverse effect upon the welfare of the child. The denial of time with his father and the paternal family somehow still did not stop the child slipping easily back into his father’s life when time was resumed but also in including the grandparents as his family. The greatest doubt about the subjective intention of the mother must lie in her connection between the complaint and the father. She has failed to establish to my satisfaction that the father would have put the child at risk at that time.
The mother’s concession is that there is not only no risk to the child but that the events did not occur.
In Napier v Hepburn [2006] FamCA 1316; (2006) 36 Fam LR 395, Warnick J observed about the importance of judges in examining the question of unacceptable risk that the goal to provide “a platform, for any future consideration of the family circumstances”. That examination, said his Honour, was to enable parents to “subsequently explore options for change”. Because of not just the timing of the asserted change but the mother’s present inability to plausibly explain why that occurred, I have doubts about whether there is a prospect of any future exploration of change. I have no similar concern about the father whose counsel made clear on the record that if there was such a change, his client would expand and extend time.
Taking into account the mandated considerations in s 60CA, s 60CC(3)(m) and s 65CA, I am satisfied there is no risk of harm to the child in his father’s care.
I find that there is a serious risk to the child’s emotional health in the mother’s care. She disclosed in evidence that she had been seeing counsellors yet none of that evidence was before the court. That would have possibly given some insight as to how she was coping with the child’s behavioural problems. Rather than just say (as she did) that his bad behaviour after weekends was attributable to his time with the father or that the child’s lack of attachment to her was attributable to the father’s conduct in insisting on time during his first 16 months of life such as to disrupt her breastfeeding, discussions might have been had about her lifestyle and her pursuit of evidence to establish disclosures and how those were bad for the child’s emotional welfare. The absence of that evidence was concerning.
Parental Responsibility
It is unnecessary for me to consider the provisions of s 61DA and its relevant presumptions. Only the mother sought some form of sharing of responsibility but not in respect of health and education if the court placed the child with the father. There is no basis here to contemplate the presumption having regard to how any communication would occur between the parties anyway. I find that s 65DAA is not engaged because an order will not provide for equal shared parental responsibility.
Even if that was not the case, I would not apply the presumption having regard to my incapacity to make a finding that the parties could fulfil the requirements of s 65DAC of the Act. It would not be in the child’s best interests to have that potential impasse whilst the parties who do not speak to each other endeavoured to not just work out a solution but a process to work out a solution.
In the case of the father, I consider he will need time to digest the apology and work out a way to communicate with the mother. In final address, I inquired about handovers and senior counsel for the father requested that a handover service be used. That is a sad reflection on the state of the relationship. I intend to make the use of the service short-lived because, for the foreseeable future after the transition period, the changeovers will be at day care for at least the next 16 months until the child starts formal schooling. In my view, but I make no order, the mother must be involved in all of those handovers in an ordered and calm way and if the child is distressed about her leaving, she needs to discuss the issue with the father and together, they need to construct something for the child’s benefit. It may be that time should be commenced and concluded between the parties themselves rather than an external paid agency.
Whilst sole parental responsibility for major-long term issues may not be defined by the Act, the exclusion of the mother from decision-making will prejudice the child if some form of courteous communication does not occur. The mother will not know what is happening in the child’s life if she is not told. The history here shows that she left the father completely in the dark with a vague allegation hanging around caused enormous problems for the child with trips to authorities and the systemic abuse that followed. The parties have to avoid that and this time, the father will need to work out a way of ensuring that the mother knows of the child’s education, illness and his discipline routine.
I am satisfied that the child’s best interests require parental responsibility for major long term issues must vest in one rather than both of his parents.
Section 60CA takes the court to s 60CC. I can make simple findings here that have not been comprehensively addressed above such as the nature of the relationship and the parental responsibility questions.
I am satisfied:
· B is too young to have a “view” about what should happen to him. The mother did endeavour to say that her reference to “B’s choice” was a reference to him deciding what extra time he should have with the father. I do not accept she meant that at all. It was said at a time when she was rejecting any other possibility than that the child was at risk;
· The father has never given up on his pursuit of a significant involvement in the child’s life yet the mother’s actions have shown her unilateral actions indicating her view about what little role the father was to have;
· The likely impact on the child of such a significant change is hard to predict. However, he has had such a disjointed childhood to date that I consider a stable relationship with his father will not be problematic. His mother has had him picked up, dropped off and cared for by a number of people. The father says that will stop. If so, the child should settle into a secure routine quickly. The difficulty is how the child will handle the absence of his mother. She has had a limited time in his life because of her work and the child has had numerous professional visits. He went to police stations, spoke to social workers and psychologists. Is it any wonder he is at times “ratty”;
· The contact I set out at the beginning of these reasons is to enable the child to settle into his father’s routine but also not to become too settled back into his mother’s house where the disruptions occurred. He can spend all day on the Saturdays before returning to his father and then the Sundays playing and doing things where he is the focus of attention without being distracted by extended family members. I will not restrain others being there but common sense says that this should be dedicated time with the mother;
· I consider the mother’s capacity as a parent to provide for the child’s emotional needs has been sadly lacking; I could not say the same about the father;
· There are no family violence considerations here notwithstanding the vague assertions of the mother and the grandmother about fear. Nothing in the evidence supported a conclusion that the father had done anything other than perhaps an aggressive and frustrated look. The mother gave evidence that she had security lighting put into her house but the details remained sketchy. No serious evidence indicated why it was necessary.
In my view, it is necessary here to make orders that will least likely lead to further proceedings. I do not intend to deal with the minutiae of holidays and special occasions on the basis of the father’s assurance that if the mother sorts out her life, he will be flexible. There is no reason for me to doubt that. Mother’s Day, Father’s Day, birthdays and Christmas times are all important to children as they develop an understanding of the importance of another parent in their lives. If that importance is not fostered and encouraged, there is not much the court can do. If there is no agreement, the parties will have no choice but to go back to court.
I certify that the preceding One Hundred and Seventy-Eight (178) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 22 September 2017.
Associate:
Date: 22 September 2017
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