CRIBB & LANKESTER
[2017] FCCA 1629
•10 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CRIBB & LANKESTER | [2017] FCCA 1629 |
| Catchwords: FAMILY LAW – Children – child found to be at unacceptable risk of emotional harm in primary care of mother – change of residence to father – sole parental responsibility order in favour of father – moratorium on mother’s time with child for 6 months followed by supervised time with mother for 12 months. |
| Legislation: Family Law Act 1975, pt.VII, ss.60B, 60CA, 60CC, 65D, 65DA, 61DA, 61(4), 65DAA, 4, 4AB, 121. |
| Cases cited: Baghti & Baghti& Ors [2015] FamCAFC 71 |
| Applicant: | MR CRIBB |
| Respondent: | MS LANKESTER |
| File Number: | BRC 11371 of 2010 |
| Judgment of: | Judge Purdon-Sully |
| Hearing dates: | 23, 25 August 2016, 3, 4, 5, 18 & 19 May 2017 |
| Date of Last Submission: | 19 May 2017 |
| Delivered at: | Brisbane |
| Delivered on: | 10 July 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Linklater-Steele |
| Solicitors for the Applicant: | Parker Family Law |
| Counsel for the Respondent: | Mr Bunning |
| Solicitors for the Respondent: | Sarah Cleeland Family Lawyers |
| Counsel for the Independent Children's Lawyer: | Ms Carmody |
| Solicitors for the Independent Children's Lawyer: | Legal Aid Queensland |
ORDERS
That all previous Orders and Parenting Plans be discharged.
That the child, [X] born (omitted) 2009 (“the child”), live with the Father.
That the Father have sole parental responsibility for the child.
That there be a moratorium on the child seeing the Mother at all for six (6) months.
That the moratorium period be followed by a period of twelve (12) months during which the Mother’s time with the child is supervised by a suitably qualified supervisor from Life Care (or other agreed supervisor if it not available) with such supervision to be reportable and to be at the sole cost of the Mother.
That the child spend time with the Mother as follows:
(a)Supervised for three (3) hours on one day each alternate weekend for six (6) months subject to the availability of the supervision service;
(b)Thereafter supervised from 9.00am to 5.00pm on one day each alternate weekend for no less that a further period of six (6) months subject to the availability of the supervision service;
(c)Thereafter unsupervised on each alternate weekend from 9am to 5pm on Saturday and 9am to 5pm on Sunday for a period of twelve (12) months;
(d)Thereafter:
(i)From 9am Saturday to 5pm Sunday on every alternate weekend;
(ii)9am to 5pm on Mother’s Day (on the proviso the child spend Father’s Day with the Father);
(iii)Alternate Christmas Eve/Day/Boxing Day; and
(iv)Block time in holidays as may be agreed.
That the Mother is to pay the costs of any reports to be provided by the Supervisor.
That the Mother be restrained from attending at the child’s school or contacting the child’s school.
That the parties shall:
(a)Keep each other informed at all times as to their residential addresses and residential and mobile telephone numbers;
(b)Keep each other informed as to the names and addresses of any treating medical practitioners or other healthcare practitioners who come into any contact with the child and this Order shall be an authority to any such practitioner to provide to the other party any information that such practitioner may lawfully provide about the child;
(c)Inform the other party as soon as reasonably practical of any injury or illness affecting the child that requires any medical or hospital attention and this Order authorises any such medical practitioner or hospital to release the child’s information to the other party.
That by this Order the parties authorise any educational/child care institution attended by the child to provide to both parents any information about the child’s educational progress and school/child care related activities and supply both parents with copies of school progress reports, photographs, certificates and awards obtained by the child. Any out of pocket expense connected to any such request shall be the responsibility of the party who made such request.
That neither parent shall discuss any issues between the parties, including these proceedings, in the presence or hearing of the child and shall use their best endeavours to ensure that others do not do so.
That the Father be at liberty to change the child’s school and enrol the child is a new school either immediately or when the Father deems appropriate.
That the Father be at liberty to provide [X]’s school, the Police, the Department of Communities, Child Safety and Disability Services and Life Care (or such other agreed supervisor) with a copy of the Orders and Reasons for Judgment of the Court.
That the Father be at liberty to engage a counsellor for [X] to provide supportive, non-reportable counselling, such counselling to be undertaken by Dr E subject to her agreement and if unavailable, as nominated by the Father, the father at liberty to provide the child’s counsellor with copies of any or all expert reports in this matter including a copy of the Orders and Reasons for Judgment of the Court.
That the Father and Mother be at liberty to provide to their own therapeutic counsellors copies of any or all expert reports in this matter including a copy of the Orders and Reasons for Judgment of the Court.
That the Mother forthwith deliver the child’s Passport to the Father.
That Family Consultant, Mr J, meet with the child and explain the Orders to the child prior to the child being released into the Father’s care and that the child thereafter be released to the Father.
That these Orders and Reasons for Judgment be referred to the Registrar of the Federal Circuit Court of Australia for referral to the Marshal of the Court for investigation into a possible breach by the mother of section 121 of the Family Law Act 1975 and what action, if any, should be taken in that regard.
That the Independent Children’s Lawyer be discharged.
IT IS NOTED:
A. That pursuant to section 65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Cribb & Lankester is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 11371 of 2010
| MR CRIBB |
Applicant
And
| MS LANKESTER |
Respondent
REASONS FOR JUDGMENT
These reasons were delivered ex tempore and corrected for literal and grammatical errors.
Introduction
These proceedings involve competing applications under Part VII of the Family Law Act 1975 as amended (‘the Act”) with respect to [X], born (omitted) 2009.
In these reasons, I shall refer to [X]’s parents, Mr Cribb and Ms Lankester, as the “father” and “mother” respectively.
[X]’s interests are separately represented by Ms Huth the Independent Children’s Lawyer (“ICL”).
I deliver these Reasons ex tempore, given that the issues requiring determination present with some priority. I shall, however, publish these Reasons.
Following proceedings in the Family Court of Australia, final consent orders were made on 29 May 2013 by Hon Justice Forrest, following a six day Magellan trial. Those orders provided that [X] live with the mother and spend time with the father on a graduated regime of time such that, following Easter 2014, she would be spending time with the father each alternate weekend from after school Friday to before school Tuesday, with holidays to be shared and time on special events. The orders also provided for phone time with both parents and that the parents equally share the responsibility for major decision-making.
Further, pursuant to the orders, [X] was to engage with Dr E, a child and adolescent psychiatrist, “for as long as therapeutically indicated to assist the child to negotiate the incongruent evidence in her behavioural, emotional and cognitive response with contact with her father and subsequent changeovers.”
The father is seeking a change of [X]’s primary residence. He further seeks an order for sole parental responsibility in his favour. It is an outcome supported by the Independent Children’s Lawyer.
It is the father’s concern, inter alia, that the mother has continued to prosecute a belief to [X] and others, including at [X]’s school, that he has sexually abused [X]. On his evidence, [X] adopts highly stressed behaviours at changeover in the presence of others, but settles happily when alone with him and his partner. He is concerned that the mother diminishes his role and that she is unable to support his relationship with [X]. It is his case that if [X] continues to remain in the primary care of the mother that she is at risk of emotional and/or psychological harm. Further, it is likely to lead to a destruction of the father-daughter relationship.
The mother denies that she is not supportive of [X]’s relationship with the father. She is perplexed and concerned about [X]’s disclosures to others that the father has put his finger in her bottom and her level of distress at changeovers with the father. On her case, she does not seek to re-agitate a finding that the father poses an unacceptable risk to the child by reason of sexual abuse. She is, however, concerned that [X] has little bond with her father and continues to experience distress and anxiety at changeovers. She seeks a reduction in [X]’s time with the father to reduce the pressure on and limit [X]’s distress. She seeks that the parties engage in robust therapy. It is her case that at the end of these proceedings with the court making clear orders and with the cessation of the parental conflict, the parents will be able to engage in family therapy, which the mother views as necessary.
The proposals of the parties and the ICL are found in written submissions filed subsequent to a seven day trial, namely:
a)For the ICL filed on 30 May 2017;
b)For the mother, filed 2 June 2017 with reference to the orders sought by the mother in her Case Outline document; and,
c)For the father, submissions filed 20 June 2017.
The issues
The issues requiring determination in this matter are as follows:
a)Whether either parent should have sole parental responsibility for the major decisions to do with [X];
b)Whether, as proposed by the father, the child should live primarily with him, with a moratorium on the mother’s time for a period of six months, with a further period of 12 months supervision thereafter leading to unsupervised time between the mother and the child or, as proposed by the ICL, a four months moratorium on time with a period of four months supervised time between the child and the mother, with three hours on one day each weekend for one month moving to 9am to 5pm on one day each weekend for a further three months, with a further review to be undertaken at the end of that time with respect to the progress of [X]’s time with the mother, or, as proposed by the mother, that the child continue to live primarily with her and that, consistent with the distress that [X] is exhibiting, the father’s time be reduced. In her Case Outline document filed 16 August 2016, this was 9am to 5pm each alternate Saturday and on some special days only, or, as detailed in written submissions in the alternative, each alternate weekend Friday to Monday to continue during school holidays;[1]
c)Who should pay the costs of supervision if ordered, the father and the ICL seeking that the mother pay the costs and the father seeking that the mother pay the costs of any report, if ordered; and
d)Whether [X] should attend another primary school, as proposed by the father and the ICL or as proposed by the mother, continue at her current school.
[1] See paragraph 3, written submission of Mr Bunning, Counsel for the mother filed 2 June 2017
Personal Details
The father is 49 and a (occupation omitted) by occupation. He resides at (omitted) in Brisbane with his wife, Ms C, also a full-time (occupation omitted).
The mother is age 47. She is employed on a part-time basis as a (occupation omitted) at (employer omitted). She works 10 to 15 hours a week around school hours and then on the weekends when [X] is with her father. Since September 2016, she is no longer in a relationship with Mr T who filed an affidavit in support of her case on 12 August 2016.
Both parents presented at trial in good physical health. However, the mother has a history of some anxiety and reactive depression for which she has sought professional assistance. In 2009, the father was diagnosed with post-traumatic stress disorder, anxiety and depression experienced while serving in the (employment omitted) and in (omitted), for which he saw a clinical psychologist.
The parties married on (omitted) 2007, separated on 3 December 2009 and divorced on 10 November 2013.
[X] was six months of age at the date of separation.
It is undisputed that since the parties separated [X] has been in the mother’s primary care and that at the time the orders were made by Justice Forrest in 2013, she was spending supervised time with the father.
[X] attends grade 3 at the (omitted) Primary School at (omitted).
Her 2016 semester 2 school report for her Grade 2 year annexed to the affidavit of the mother filed on 6 March 2017 refers to [X] as an “enthusiastic, inquisitive and confident student” who had made “pleasing progress” during the semester.
That report does not evidence any concerns about [X]’s educational progress or her behaviour. However, [X]’s attendance at school and her behaviours have caused some disruption to the school community as a whole.
Issues arising on the evidence
It is necessary to traverse in some detail the background to the parent’s dispute to enable the issues that require determination to be properly considered.
This will include reference to matters detailed in expert reports prepared in the earlier Family Court proceedings. Whilst objection was taken to the admission of those reports on the basis that, inter alia, they were historical in nature and occurred at a time when allegations were being made of sexual abuse and that, further, the documents and other information upon which they were based, namely the affidavits and subpoenaed material, were not relied upon or before the court in these proceedings, to exclude the reports would be contrary to the best interests enquiry because:
a)Firstly, given the history of litigation and the nature and extent of the allegations made by both parties, the reports have probative value where:
i)there has been a consistency of comment and observation of the mother by a range of experts over a time-frame relevant to and supported by the evidence of experts in these proceedings;
ii)the reports provide context to the issues, including the evidence available to the court when the mother made an important concession in earlier Family Court proceedings;
iii)the mother was cross-examined in these proceedings about the reports where they make adverse observations about her and therefore had the opportunity to advance reasons for either her non-acceptance of the opinions expressed or how they may have been misconceived and whether she had taken on board the criticisms of her by earlier court experts, potentially relevant to her insight and what, if any, steps and/or strategy she thereafter took to advance [X]’s relationship with the father;
iv)the father’s concerns in the earlier proceedings about the mother’s parenting capacity and ability to support his relationship with [X] and his concern that the sexual abuse allegations raised by the mother were detrimental to [X]’s emotional and psychological development were documented in the reports and known to the mother.
b)Secondly, whilst care must be taken to the admission of reports to ensure that they are not misused in an unfair way where the court experts who prepared those reports are not witnesses in this case and/or the mother may not have cross-examined some or all of those witnesses in the earlier proceedings, that fact alone is not necessarily determinative of the issue of admission and I refer to the particular cases referred to by Mr Linklater-Steele, Counsel for the father, although there were some errors in the identification of some of those cases which will be corrected in my published Reasons,[2] and further, where no complaint with respect to asserted factual errors was placed on the record by the mother at the time the 2013 orders were made, the mother, then represented by experienced Counsel Mr Fleetwood and an experienced solicitor, Ms Cleeland (who continues to act for her in these proceedings) and where, by consent order, those reports were included as part of the briefing materials and source materials upon which Dr E embarked upon her therapy as part of the court order consented to by both parties and where Ms M’s reports or some of them were considered and referred to as part of the investigations of Child Safety and where her Section 65L report and the report of Dr F and LifeCare report was part of the material provided to Mr F in these proceedings.
[2] Galvin v The Queen [2006] NSWCCA 66 at [40]; R v Sutseki [2002] 56 NSWLR 82 at [127]; Papakosmos v The Queen (1999) 196 CLR 297 at [93]
Material relied upon
The parties and a number of witnesses gave evidence at the trial, including expert witnesses.
I do not propose to make any general comments about the credibility of either of the parties or their witnesses. Insofar as I need to make findings of fact, I shall do so in the course of my discussion about the matters relevant to my considerations.
Mr F, who prepared a family report in these proceedings, gave evidence and was cross-examined. I find that his recommendations are consistent with and supported on the whole of the evidence before the court. I accept that his recommendations reflect not only his expertise and experience, but also the advantage afforded to him by his interviews with and evaluation of the parents and [X].
I further accept that his opinions were his own and that he did not adopt the evaluation of Ms M, the court expert in the Family Court proceedings, as a starting point for his investigation.
Dr E, a senior and highly qualified psychiatrist, as evidenced by her Curriculum Vitae attached to her affidavit filed on 9 August 2016, also gave evidence and was cross-examined. The court places significant weight on her evidence. She also gave oral evidence about her expertise.
The court does not accept, as submitted on behalf of the mother, that there was no proper way for the mother to test the conclusions of Dr E by reason of the absence of some of her notes. Dr E was an impressive and assured witness with an excellent recall of the parties, [X] and the issues. In the giving of her evidence, I found her to be scrupulously fair to both parties. Her evidence was complemented by the records of the Department with respect to her involvement with it and the family in 2014 and 2015. She was cross-examined at length by Counsel for the mother, Mr Bunning.
I have considered all of the material relied upon, the exhibits and the submissions. A great deal of evidence was canvassed in detailed written submissions by the parties’ experienced legal representation, for which I thank them. I do not, however, propose to respond to every submission made, however, in reaching a decision as to what orders to make in [X]’s best interests I have considered all submissions.[3]
[3] Baghti & Baghti & Ors [2015] FamCAFC 71 at [63] to [64]
Contextual background
On 3 December 2010, the father commenced property and parenting proceedings in the Federal Magistrates Court of Australia.
On 2 January 2011, a Child Concern Report noted that the child was becoming distressed during handover to the father for contact visits and that the father was an alleged sexual abuse victim with his father (the paternal grandfather) as perpetrator.
On 5 April 2011, it was further noted that the child disclosed to the mother a “sore wee-wee” after a three hour visit with the father. A later police record recorded “victim child questioned by mother” and “mother stated that she discussed this with the subject person on 5 April 2011 and tape-recorded the conversation, stated that subject person became defensive and denied washing the victim child.”[4]
[4] Exhibit 34
On 7 and 9 April 2011, it was noted that the mother asserted that the child demonstrated abuse on a doll using a white eraser, pushing it into the crotch area of the doll repeatedly. A subsequent police record noted:
Mother questioned child and video recorded it.[5]
[5] Exhibit 34
On 10 April 2011, it was noted that the mother asserted that the child complained of a “sore area”. A later police report noted:
Again demonstrated on doll and questioned by mother in presence of friend of mother’s – Ms K”[6]
[6] Exhibit 34
On 11 April 2011, the mother presented at the (omitted) Hospital alleging that the child had been abused by the father during access visits. [7]
[7] 9 November 2011 - Child Concern Report
On 11 April 2011 a colposcopy was performed on [X] at the Child Advocacy Centre.
A colposcopy, according to the Macquarie Dictionary, is an examination of the cervix and vaginal walls using an instrument which allows magnification of the area.[8]
[8] Macquarie Dictionary, Macquarie University NSW 2006 at [240]
[X] was then about 22 months old.[9] There was no visible injury, abnormality or trauma.
[9] Exhibit 34 (See also Report of Dr F at page 15; See mother’s evidence under cross-examination by Counsel for the ICL, Ms Carmody on 5 May 2017 where she accepted that the child was vaginally examined at that time).
On 18 May 2011, Ms M conducted a Child Inclusive Conference in the context of the ongoing parenting proceedings.[10] In her evaluation, she noted as the one key issue the parent’s ability to engage in constructive communication with each other about [X]’s parenting needs.
[10] Exhibit 30
With regard to [X]’s separation anxiety, Ms M said:
….[X] appears to exhibit initial separation anxiety. This is developmentally normal for a child [X]’s age. [X] appeared to settle quickly in her father’s care during the observation period and he reported the same after changeovers at Ms Lankester’s home. I sense that Ms Lankester herself becomes distressed when separating from [X] in response to her anxiety. This is likely to further compound the problem. Further, [X] might also sense her parent’s apprehensiveness with each other, which may also heighten her uneasiness. If [X] is exposed to and picks up on the parental conflict, then this might also in part explain her unsettled behaviour.
On 5 July 2011 following mediation, the parties agreed to the terms of consent orders on property and parenting matters.
On 18 July 2011 Consent Orders were made and the proceedings finalised. Pursuant to those orders, [X] lived with her mother and was to spend time with the father in a graduated regime of time over six months, culminating in [X] spending every second weekend with the father from 8 am Saturday to 5 pm Sunday and each Wednesday from 4 pm to 8 am Thursday. The weekend time would then increase to incorporate Sunday overnight in June 2012.
Between 20 July 2011 and 4 August 2011, the mother recorded complaints by [X] of a “sore wee-wee”, “daddy touched, bottom sore”, “daddy touched me” and that [X] had a red, inflamed vagina area.
Departmental records indicate a number of notifications made throughout the year with the concerns related to the possible sexual abuse of [X].
It was noted in the police record that the mother had contacted police, who advised her to return to her doctor for assessment, which she did on 5 August 2011; that the child continued thereafter to make complaints, including on 28 August 2007 “Daddy touched me with finger, poo-hole”; and that the child had made disclosures that the father had touched her to the maternal grandparents.
On 9 September 2011 there was a referral to the police as a result of a further notification to the effect that the father was sexually abusing the child during access visits.[11]
[11] Police noted that “Mother has presented child to doctors twice in 2011. One in August 2011 and again today (9/09/2011). The notifier wanted the child medically examined for any possible sexual abuse. Notifier alleges that the child is being sexually abused by her father and the child has made disclosures her ‘bottom sore’. Notifier advised that medical examinations have shown no indications of sexual abuse.” (Exhibit 34)
The notifier was likely the child’s General Practitioner, Dr M. The police record that the mother had given an audio recording to the doctor on 9 September 2011 for her to listen to out of earshot of the child and that the “doctor has returned and then questioned the child with regard to what was disclosed. Doctor has then contacted the Child Abuse Unit and raised a notification.”[12]
[12] Exhibit 34
On 10 September 2011, the mother and [X] attended the (omitted) Police Station. It was noted by police that the child became upset and irreconcilable when the mother left and until she re-joined her. It was also noted that the mother had been keeping a diary of her disclosures and concerns. [X] was not formally interviewed. The police recorded the following:
…due to the continued questioning of the victim child about the subject both by the mother and medical staff - as early as the previous day. The mother has stated that she would ask questions of the victim child when the victim child would disclosure and discuss. Due to the frequency of this approach, it could be argued that it was suggestive and misleading – convoluting evidence.
The police report went on to note that there had been several attendances at doctors and that medical examination showed no signs of sexual abuse. The police also noted the child’s “limited vocabulary”.[13]
[13] Exhibit 34
Other than forward the matter to the Department the police took no further action.
On 10 September 2011, less than two months after the making of the Consent Orders, the mother suspended time.
[X] was referred by her general practitioner to Ms T, a psychologist, under a mental health plan. [14]
[14] Exhibit 27
On 6 December 2011, [X]’s unprompted greeting to Ms T was, “Daddy touched my bottom.” Ms T recorded in her notes, “no reason for this disclosure.”
Notwithstanding the earlier police report recording a concern about the frequency of what they viewed as arguably suggestive and leading discussion of the mother’s concerns with the child by various people, during the child’s second session with Ms T on 14 November 2011, [X] was asked further arguably leading questions by Ms T, including when “Daddy had touched her bottom” and “Does daddy touch you on the vagina or bottom?” and with reference to a doll, where the father had touched her.
On 16 September 2011, the father filed a contravention application. On the same date, the mother filed an application alleging the sexual abuse of [X] by the father and seeking orders for sole parental responsibility and supervised time with the child and the father.
The father discontinued his application by Notice on 28 October 2011.
The Department of Child Safety’s investigation with respect to the sexual abuse allegations was conducted in October and November 2011.
Their assessment found insufficient evidence to support concerns that [X] had been sexually abused. The concerns were unsubstantiated with both parents assessed as willing and able to provide for the child’s future care and protective needs.
The assessment noted that [X]’s disclosures may have described her experience of typical parenting tasks, such as meeting her hygiene needs, were made in her mother’s presence, and that her behaviours could not be exclusively attributable to sexual abuse and were considered to be within the realms of appropriate play for her age group.
The assessment raised a concern in relation to [X] potentially experiencing emotional harm as a result of repeat interviews with the mother in relation to her concerns and having repeat medical examinations, however it was assessed that there was insufficient evidence available to suggest [X] suffers significant harm as a result.[15]
[15] The Department prepared a report for the Family Court pursuant to a s.91B order of Registrar Kane dated 11 November 2011 (Exhibit 24)
On 31 October 2011 the matter was transferred to the Family Court and designated Magellan. Orders were made for the appointment of an Independent Children’s Lawyer.
Ms M produced two further reports for the assistance of the Family Court dated 19 December 2011 and 21 June 2012.
In her report of 19 December 2011[16] Ms M noted, inter alia, that:
a)The mother adamantly believed that the father had sexually abused [X] (at [17]);
b)On the day of the interviews, when greeting [X] with the mother, [X] informed Ms M, “Daddy touch my bum” (at [19]);
c)In her view, there may be some support for the father’s assertions that the mother had influenced [X]’s disclosures and exposed her to emotionally harmful situations (at [57]);
d)Whether [X]’s distressed behaviour in the interview was a
…manifestation of her actual experience in her father’s care or a conditioned performance response by her mother’s actions or perhaps an emotional response to the parental conflict or other reason is unknown. It is my opinion that regardless of the origins of [X]’s distress, the quality of her relationships with both parents is likely to be severely compromised if interaction with (the father) continues to elicit such a strongly negative emotive reaction. This is likely to impact adversely both on [X]’s short and longer term social and emotional developmental outcome (at [59]).
[16] Exhibit 30
Dr F completed a psychiatric assessment of the parties dated 8 June and filed on 12 June 2012.
On page 17 of his report he made some observations including that the mother’s belief with respect to sexual abuse was not based on any inference from the child’s behaviour but rather actual statements the child had made to the mother, witnessed by others. He opined that what needed to be established was the context in which the child made the statements and whether it was in response to a particular type of questioning. He said:
a)It was his view that the mother did not firmly believe that the child had been sexually abused based on her contradictory position (“If the father has indeed treated this young child as an object of sexual gratification as against someone who is deserving of protection, care and nurturance, it is difficult to see how any relationship could develop for the benefit of the child.”)[17]
b)The recordings of the mother’s questioning of the child indicated that the child’s responses were a reflection of the method of questioning and context was important. (“It is impossible for a father to change a soiled nappy without touching the poo-hole.”)
c)There was no medical evidence that the child suffered any injury (“…as one would expect if she had been digitally penetrated”).
[17] See also comments on page 13 in a similar vein
Ms M’s third report, dated 21 June 2012[18] noted at [36] that [X] told court staff and her that she “did not want to see (her) daddy” and that “Daddy touched my poo-hole”, the latter said to Ms M by [X] in the mother’s presence while Ms M was greeting her. She went on to record in her report:
a)The mother had reported [X]’s pattern of behaviour had escalated in that she was making disclosures to other persons that her father had touched her and that [X] reacted adversely when reminded of her father in any way and remained unsettled for a period of two to three weeks (at [13] to [15]);
b)Based on [X]’s prevailing adverse reaction to her father, the mother can no longer see the value in facilitating a relationship between [X] and the father, expressing the belief that “this would only cause [X] further trauma.” (at [39]);
c)That in her view “the risk of future harm to [X] of sexual abuse in the father’s care is low” based on an earlier risk assessment that had been undertaken and identified by her at [46];
d)At [47] she went on to opine as follows:
In my opinion, if [X]’s reactions are not justified, [X]’s continued exposure to Mr Cribb is likely to reinforce her fear and distress if Ms Lankester maintained her perspective and fails to genuinely facilitate a relationship between [X] and her father. The likely consequence of this is that [X] will imbue her mother’s relativity without being provided the opportunity to benefit from an alternative perspective to assist her to develop her own construct of Mr Cribb. Further, the impact to [X]’s emotional development and her construction of herself is likely to be extensive if she grows up falsely believing that she was sexually abused by Mr Cribb. Further, [X] will not have the opportunity to develop a meaningful relationship with her father. This would most likely adversely affect her social and emotional development or outcomes.
e)Finally, that the parties demonstrated a highly conflicted relationship and she, Ms M, was “not confident that Ms Lankester would be able to promote an ongoing relationship between [X] and her father” (at [50]).
[18] Exhibit 31A
The Family Court trial commenced on 30 July 2012, initially over four days.
On 2 August 2012, before the conclusion of the trial, the court ordered that [X] be reintroduced to her father by means of orders pursuant to Section 65L of the Act with Ms M charged with supervising a number of visits between [X] and the father and reporting on the same.
The parties were also required to attend therapeutic support to assist them in the implementation of that process. Copies of reports of Ms M and Dr F were provided to the therapist. The mother engaged with Ms J, a social worker, and the father another therapist.
In her Section 65L report dated 12 November 2012 at [13],[19] Ms M was critical of the mother’s persona and demeanour during the interviews, viewing her management of handovers as obstructive and damaging to [X]. She said:
It is my opinion that Ms Lankester did not encourage [X] to separate. As examples, Ms Lankester held [X] to her, stroking her back and uttering soothing words, or she would sit motionless and unresponsive as I attempted to take [X] from her lap. At the conclusion of the fourth visit, [X] excitedly told Ms Lankester that she had been to the park and showed her chocolate bars. Ms Lankester reported negatively to [X], being given chocolate by Mr Cribb, telling [X], ‘Chocolates bad for you’.
[19] Exhibit 32
Ms M observed several statements by [X] incongruent with her body language or which she later contradicted and her extension of the father’s family in her disclosures (“the grandmother that let you touch me in the poo hole”). [20]
[20] at [19]
In her summary at [28] to [29], she said the following:
In my opinion [X] will be exposed to continuing distress and confusion about her relationship with Mr Cribb while she lives with Ms Lankester. Ms Lankester does not possess the reflective functioning necessary to assist [X] to successfully navigate the transition into her father’s care. Consequently every changeover will be a highly stressful experience for [X]. This will affect [X]’s emotional and social development. It is also likely to impact upon [X]’s capacity to connect positively with Mr Cribb.
It is my opinion that Ms Lankester has demonstrated that she is unwilling to support [X] forming a relationship with Mr Cribb. Ms Lankester continues to ardently express the belief that Mr Cribb sexually abused [X]. Ms Lankester presented as anxious and reluctant to separate from [X], and she was unable or unwilling to consider how her behaviour might have contributed to [X]’s presentation. Further it is my opinion from [X]’s presentation and a number of her statements, Ms Lankester has overtly influenced [X] or that [X] has picked up on and is reacting to Ms Lankester’s negative construct of Mr Cribb.
Ms S, a family therapist and Managing Director of LifeCare provided two contact supervision reports annexed to her affidavit filed 12 August 2016 in relation to her or a member of her staff’s subsequent supervision of time between [X] and the father. In her summary report dated 3 May 2013, she said in part:
a)[X] exhibited stress at leaving the mother however her distress de-escalated quickly (1 to 7 minutes) with no distress observed during contact visits with the exception of the first visit. As contact progressed the intensity and duration of distress decreased.
b)The father had demonstrated an ability to parent [X] in an age-appropriate manner and [X] demonstrated a genuine enjoyment of contact with the father.
c)[X] was exposed to negative comments with regard to the father and had been observed to make statements of the father not reflective of her developmental age (“I have to hate you” 19/04/13).
d)[X]’s spontaneous and immediate distress when advised that the mother had arrived at termination of contact is reflective of further complexities in relation to her attachment with her primary caregiver. This behaviour was observed to be in isolation to handover and not consistent with positive behaviour during contact with the father.
In her second report of changeover on 31 January 2014 at the father’s residence, Ms S noted that:
a)[X] was upset at the commencement of changeover and the mother was not observed to be encouraging or enthusiastic of the child going to the father.
b)When [X] was inside, she settled down within moments (approximately 20 seconds), excitedly showed Ms S her bedroom and explained that she was helping clean the leaves around the pool.
c)The father managed [X]’s emotions competently and calmly.
The mother filed an affidavit on 16 April 2013[21] shortly prior to the date for the resumption of the Magellan trial, rejecting Ms M’s views, asserting factual errors by her and at [47] that Ms J had viewed Ms M as having been neither professional nor independent.
[21]Exhibit 37
The mother went on to depose to [X]’s extreme distress at even the mention of the father’s name, extreme fear of his attendance at kindy, bed wetting after contact with the father, her being inconsolable after each contact visit, screaming nightmares about the father, locking the house doors in fear of the father, suggesting the mother and she ([X]) move to the (omitted) or (omitted) so that the father cannot find her, statements to third parties that, “my mum is trying to keep me safe”, pleading with the mother not to be taken to see her father, statements that she hated him and he is “not my family” and alleged statements of support from others such as kindy staff. In relation to the latter, in response to a kindy teacher’s question, “There is something not right here, is there?” the mother replied, “No, but no one believes her or anything I have said she said.”
On 29 May 2013 following the start, but before the conclusion, of the Family Court trial, the parties reached final consent orders.
The orders were made after the mother’s express concession that she no longer considered [X] to be at any unacceptable risk of harm in the unsupervised care of the father. The mother instructed her Counsel, Mr Fleetwood, to advise the Court as follows:
Well, your Honour, I may be able to assist you and place on record my very firm instructions from my client. After the hearing of the evidence over the last six days and clearly after obtaining legal advice, my client has instructed me to place on the record that she does not consider that Mr Cribb’s behaviour constitutes an unacceptable risk to [X]. I can't be clearer than that, and it is made on specific instructions.
The (then) Independent Children's Lawyer’s position with respect to the consent orders was neither to consent nor oppose however, the following concern was placed on the record by Counsel for the then Independent Children's Lawyer:
Your Honour, I'm instructed to place on record on behalf of the Independent Children's Lawyer that the Independent Children's Lawyer retains genuine concerns about whether or not the mother genuinely accepts that the child would benefit from having a meaningful relationship with the father and also concerns regarding her ability to foster a meaningful relationship.
The mother’s concession was expressed in a Notation to the orders.
Dr E commenced to see the parties and [X] in a therapeutic role in July 2013. She gave evidence on behalf of the ICL in these proceedings.
On 3 February 2014, the first day of prep, [X] was involved in a poorly-managed transition leading to an unseemly tug-of-war between her parents. The mother had agreed not to attend that day, conceded by her at trial and supported by other evidence before the court. [X] became distressed. She disclosed to a teacher’s aide that she did not like the father, “because he puts his finger right up there,” pointing towards her bottom. She repeated that and her disclosures were reported to the Principal.
On the evidence of Dr E, [X] uses extreme behavioural strategies to control situations which she finds stressful (the situation with which she was confronted on the first day of school being one). On her evidence, in a heightened state of anxiety, [X] can default to the idea of saying to others that her father has done something nasty to her.
On the evidence this can occur unsolicited, with strangers, sometimes immediately upon meeting and often without pretext or apparent context to the situation.
[X]’s disclosure at school triggered a mandatory report by the school of suspected child sexual abuse.
That investigation was ultimately finalised without action being taken against the father. However, the investigation exposed [X] to another round of interview, the police attending [X]’s school on 4 February 2014. The Department records note that [X] did not wish to talk to police and was “visibly upset”.[22] It is recorded that when asked if her father had put a finger up her bottom, [X] shook her head.
[22] Exhibit 1, p 53
On 17 February 2014, the father then referred his concerns to the Department centring on [X]’s emotional wellbeing in the care of the mother.
On 24 February 2014 [X] was again interviewed at the school this time by child welfare officers.[23] They reported her largely disengaged from the process. She made no disclosures. She identified her mother as a person she could talk to if she felt unsafe in her mother’s home and her father and his wife as persons she could talk to if she felt unsafe in her father’s household.
[23] Exhibit 1, p 85
The father and Ms C were interviewed on 26 February 2014 and the mother on 3 March 2014. Relevantly to the concession the mother made to the Court in 2013, the mother is recorded as saying this:
Ms Lankester stated that it was becoming too difficult, so she conceded that Mr Cribb was not an unacceptable risk. [24]
[24] Exhibit 1, p 90
She was also recorded as informing the Department, without prompt, about two incidents of play therapy by [X] in sessions with Dr E, including when [X] put a needle from a play doctor’s box between the legs of a toy bear.[25]
[25] Exhibit 1, p 91
By letter dated 27 March 2014 and at the request of the Department as part of their investigation, Dr E reported on her work with the family. In her report:
d)She was critical of the mother, referring to her experiencing a high level of anxiety and being unresolved about her relationship with the father and particularly the possibility that he may have inappropriately touched [X]. At [6] of her report, she noted that the mother “will not say to [X] that this event may not have occurred as she does not accept this”.
e)She referred to the mother’s inability to engage in reflective dialogue on the impact of transitions on [X] and that her difficulty to resolve the past continues to interfere with her “ability to support [X] to repair her relationship with her father and to allow [X] to separate from her not only at changeovers but also at childcare and school”.
f)At [7] of her report, she referred to the mother not being able to demonstrate a capacity to reflect on herself and her mental state and the role she has potentially played in [X]’s presentation and behaviour, that it had become difficult to engage the mother to actively support [X]’s transitions, and she has been unable to engage in reflective dialogue on the impact of transitions on [X]. It was her view the mother’s “ability to observe and consider her own emotions and her own role in supporting [X] remain difficult to assess”.
The police became involved again when, on 21 April 2014, whilst [X] was in the care of her father, the mother asked the police to undertake a welfare check. Nothing of concern was noted.
The Department met with the mother on 24 April 2014 - three days later - to discuss the outcome of their investigations, which was a finding by the Department against the mother of cumulative harm to [X] as a result of her experiencing harmful behaviour by the mother over a period of time. The father was acknowledged to be a person willing and able to protect [X].
The mother informed Mr F, the court expert in these proceedings, she did not accept that finding.
The mother was recorded in the Department’s records as telling the Department that “she will have to fight this outcome”.[26]
[26] Exhibit 1, p 110
She was further recorded as informing the Department that she is “unable to tell [X] that she was not sexually abused by Mr Cribb because she does not know she hasn’t”.
In a phone discussion between a Departmental officer, Ms Holt, and Dr E on 28 April 2014, Dr E is recorded as informing Ms Holt that “[X] feels responsible to make sure Ms Lankester is okay, that [X] feels responsible for Ms Lankester’s emotional wellbeing and [X] feels responsible to keep Ms Lankester calm.”[27]
[27] Exhibit 1, p 111
Towards the end of April 2015, Dr E met with the parents separately to discuss the Department’s findings and her report to the Department, a report that she was requested to provide them. Dr E reported to the Department on 15 May 2014 that in her interview with the mother she was “able to identify her comments were similar to conclusions drawn from previous assessments”.[28]
[28] Exhibit 1. p 112
Three further notifications, however, were made to the Department between 10 November 2014 and 22 December 2014. The substance of the complaints was that [X] should not be having time with the father as the father had abused her.
On the evidence of the mother, a notification was made to the Department by a mother of a student from [X]’s school. On 10 November 2014, the mother deposes to a letter being left in [X]’s pigeonhole in her school classroom addressed to [X]. The note was anonymous, purported to be from a mother of a child in prep, inter alia, stating that [X] had disclosed to her child on 31 October that the reason she did not like her father was that he touches her bottom. She wanted the alleged sexual assault investigated.
The mother deposes to another letter being received by her from Mr C. It refers to a further disclosure by [X] on 9 September when he was having dinner at the mother’s house.
On 13 November 2014 the mother’s lawyers forwarded both letters to the Department and requested that it investigate.
A further notification was made to the Department on 23 December 2014 again that [X] was being sexually harmed by the father.
On 14 January 2015 the father lodged a further complaint with the Department about [X] being at risk of emotional harm in the care of the mother, the Department’s notes maintaining ongoing concerns about the child in the mother’s care.
On 16 January 2015 the Department sought clarification from Dr E as to whether both parents had continued to engage with her.
On 19 January 2015 Dr E responded, inter alia, that the father had continued to remain engaged around seeking assistance in the parenting of [X], however, the mother did not attend a booked appointment. They were unable to speak to her despite ringing both home and mobile numbers, had left multiple messages for her, offering her the opportunity to make another appointment but had not heard further from her.
The Department assessed the matter as not meeting the threshold for Child Protection Notification. It noted however, significant concerns about the behaviour of the mother, inter alia, her failure to attend further therapeutic sessions with Dr E and the importance of that support to assist [X] and implement the terms of the 2013 orders, her unwillingness in their view to achieve positive progress and outcomes for [X] by not engaging in what they deemed constructive, unbiased support. It was assessed that the mother was not willing to engage with persons whose views were not in line with her own and was unwilling to consider how her behaviour might have contributed to [X]’s cumulative harm by her.[29]
[29] Exhibit 1, p 146
During her interview with him, the mother informed Mr F that she was concerned that Dr E had shared information about her with the father and the confidentiality between the parents under the therapeutic process. [30]
[30] Mr F’s report at [73]
On 18 February 2015, the mother filed a contravention application asserting complaints with respect to phone time and one complaint that the father had failed to effect changeover himself as required by the final orders and that he had used his wife, Ms C to that end.
On 9 April 2015, the father initiated the current proceedings in this court.
On 28 August 2015, Mr F’s family report was released. Mr F was appointed following an interim hearing on 19 May 2015 at which time the mother sought the appointment of an expert other than Ms M. It was the mother’s position, submitted on her behalf by Ms Oakley of Counsel that the court would benefit from “fresh eyes”. [31]
[31] Exhibit 38
At the time of her interviews with Mr F, the mother was reported as seeking that the father spend alternate weekend time with [X] from Saturday morning to Monday morning. She was open to therapeutic intervention for [X], however preferred it be someone other than Dr E.
Mr F noted in his report that the mother was not asking the court to make any findings in respect of whether or not the father posed a risk of sexual harm to [X].[32]
[32] Mr F’s report at [13]
At [15] of his report, the mother was recorded as denying she had promoted a view that the father presented a risk to [X], that it was [X], not her, who continued to make disclosures and that she did not ask the court to make findings about them “accepting instead that it is not possible to ever know whether or not the father put his finger in her anus”. Further, she had no control over [X] making these sorts of comments and no knowledge and control over how other people may respond.
During her interviews with Mr F, [X] articulated that the father was not her father (“He’s not my Dad”) and that it was the mother’s observation that [X] did not have a bond with him.[33]
[33] Mr F’s report at [84], [88]
At [110] of his report in response to a question as to what she planned to have for dinner that night and a discussion about McDonalds and after thanking her for coming in and meeting him, [X] said to Mr F, “He did touch me on the bottom… I was three. I hate him. I never want to see him again because he did that to me.”
Again, at [111] of the report after volunteering to Mr F that the father’s wife Ms C was “the most safest person” and when asked why she said she liked nothing about her father she said, “because I think he’s going to touch my bottom again.”
Again, at [116] when asked what she might like to wish for her family, [X] said “That they would see what he did and that my Mum could live with me forever and that he had to go to jail because he touched me in the poo hole when he shouldn't have done that.”
At [112] and [125] of his evaluation Mr F assessed [X]’s behaviour and participation in the interview as “unusual” and why. I shall not detail his evaluation now as it will be a matter of later discussion.
Legal principles
Part VII of the Act provides the statutory framework in which the court exercises its power to make parenting orders.
The legal principles to be applied have been authoritatively considered in a number of authorities, including Goode & Goode (2006) FLC 93 286 and MRR & GR (2010) HCA 4. The principles are well known and do not require detailed repeating.
Section 60B of the Act sets out the objects of Part VII to ensure that the best interests of children are met and details how those objects are achieved together with the principles that underlie those objects.
Section 60CA of the Act requires that in deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration.
Section 60CC provides that in determining the child’s best interests the court must consider the primary considerations set out in section 60CC (2) and the additional considerations in section 60CC (3).
Section 60CC (2A) provides that when applying the consideration in subsection (2) the court has to give greater weight to the second primary consideration under subsection (2)(b).
Section 65D (1) provides that, subject to certain nominated sections, the court may make such parenting order as it thinks proper.
Section 61DA (1) requires the court to 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 in circumstances of abuse or family violence of the kind referred to in subsection (2) and further, the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility (s.61(4)).
If the Court makes an order providing that a child’s parents are to have equal shared parental responsibility for the child, then the court must go on to consider whether it is in the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents and if it is, to consider making that order and, if not, the court must then go on to consider an order for substantial and significant time with each of the parents and the practicability of such an order (s.65DAA).
When the presumption of equal shared parental responsibility is not applied, the court is at large to consider what arrangements will best promote the child’s best interests and the child’s best interests remain the overriding consideration.
The test for unacceptable risk is well-established. It has been outlined in many cases. Counsel for the mother, Mr Bunning, referred to a number of authorities in his written submissions. I do not propose to detail those.
Abuse in relation to a child is defined in section 4 of the Act.
Family violence is defined in section 4AB (1) of the Act. Examples of behaviour that may constitute family violence are detailed in, but not limited to, the matters set out in section 4AB (2).
I shall now proceed to consider the relevant statutory considerations.
Primary considerations
Section 60CC(2)(a) – the benefit to the child of having a meaningful relationship with both of the child’s parents
I find that there are benefits to [X] in having a meaningful relationship with both her parents.
Both love [X]. [X] is deserving of having the continued involvement and love of both her parents in her life and the ability to feel and reciprocate that love.
The mother has failed however to demonstrate insight into [X]’s extreme presentation with her father or the capacity to respond to that with insight and child-focus.
If [X] continues to see her father as a figure of fear, then she is unlikely to develop a wholesome relationship with him which is beneficial to her.
There is no evidence to support a finding that [X] should be fearful of her father. That fear has come about because of the mother’s belief, her assertions to the contrary notwithstanding that the father sexually abused [X], a belief that not only lacks evidentiary support but a belief that the mother has imprinted on [X] and from which she is unable or unwilling to protect her.
The mother has evidenced no meaningful capacity to support [X]’s relationship with her father. I accept the evidence of Dr E that the mother is aroused by the child having contact with her father which makes it difficult for her to emotionally support [X] to enable her to manage transitions to her father’s care.
While [X] remains in the primary care of the mother, there is little prospect of [X] understanding that there is no reason to fear her father and little prospect of her having a healthy relationship with him because of the mother’s lack of meaningful support for it.
The proposal of the mother which reduces [X]’s time with her father as a response to [X]’s distress does not address the cycle of behaviours and responses that precipitate the anxiety in [X] or in her relationship with the mother, nor the mother’s anxiety in [X] spending time with the father.
On the mother’s proposal the father’s relationship with [X] is likely to be lost over time. This would result in significant short and long-term detriments to [X].
The proposal of the mother may also have impacts for [X]’s relationship with her mother because it fails to address the dysfunction in their own relationship. I accept the evidence of Dr E that [X] is attuned to her mother’s emotions and as a result seeks to control her environment when she perceives her mother is distressed or anxious.
I accept her evidence that it is not normal behaviour for any child to manage negotiating the emotional state of their parents.
I find that the existing cycle of [X]’s behaviour which is played out in her mother’s primary care is unhealthy and emotionally damaging to her.
On the proposal of the father and the ICL, [X] is more likely to be afforded the opportunity to have a relationship with both her parents.
In the primary care of the father, [X] is more likely to be able to develop the emotional freedom to gain a realistic appreciation of him in an environment that reduces her exposure to unhealthy beliefs and the damaging conduct of her mother whilst obtaining the targeted help she needs to address her maladaptive behaviours.
I place significant weight on these findings which support the proposal of the father and the ICL for a change in primary residence.
Section 60CC(2)(b) – the need to protect the child from physical or psychological harm from being subjected to, or exposedto, abuse, neglect or family violence.
This is a significant consideration in this case.
I repeat and rely upon earlier findings relevant to this consideration.
There is no need to protect [X] from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence on the proposal of the father, including sexual abuse of [X] by the father.
Whilst no finding was agitated by the mother against the father with respect to sexual abuse in these proceedings, it is important to make the following findings.
The allegations of sexual abuse made against the father are confined to a period when [X] was two to three years of age. At an early stage the mother chose to assume the worst and conclude that the father had abused the child without canvassing other obvious possibilities for her statements in circumstances where it was entirely likely in the exercise of his general parenting of [X] that he would have touched the child’s bottom when changing nappies or bathing her.
[X]’s behaviour such as nightmares and separation anxiety did not of themselves indicate sexual abuse for a child of her age.
The allegations of abuse were investigated by Child Safety and were not substantiated.
The police did not pursue the matter after conducting an investigation.
Medical examinations showed no evidence of sexual abuse.
Child Safety cautioned that [X] may have experienced emotional harm from repeated examinations and repeated interviews by the mother, including video/audio recordings of [X] for the purposes of “collecting evidence of abuse and that (they held) concerns that( the mother) may have coached [X].”
Queensland Police also made reference to the child being asked leading questions.
There have been no allegations of further events of abuse since that time. [X] is now eight years of age.
Incredibly, in this court’s view, given the mother’s earlier stated concerns that the child was being sexually abused by the father, which concern led her to have the child medically examined and ultimately attend at a police station for interview, the mother is recorded as informing the police at that time that she wanted the father’s time to continue, albeit on a supervised basis. The contradictions inherent in that stance were observed by Dr F because either the mother did not believe or reasonably suspected that the child had been abused and was therefore seeking to control or restrict the father’s time –unlikely in my respectful view given the mother’s conduct throughout 2011 and the evidence of extensive concerns being reported to the authorities centring on the child being abused during contact visits - or she lacked insight into how there could in the circumstances be any benefits to [X] in having any relationship with her abuser, even on a supervised basis.
Whilst, as earlier observed the court must be careful in the weight to be attached to earlier expert reports, the consistent theme that emerges from the expert reports cannot be ignored.
Whilst the father undoubtedly has contributed to the conflicted parenting dynamic, it is the mother’s conduct, capacities and insight that have invited consistent scrutiny.
What is relevant about the expert reports in the Family Court trial is that the mother had the benefit of a consideration of that evidence before her Counsel made the significant concession he did to the court on her clear instructions and thereafter [X] was to have unsupervised time with the father.
Further, the mother had the benefit of a consideration of those reports in the context of the further expert evidence in these proceedings together with the Departmental outcome of child welfare investigations that supported earlier concerns raised about her.
Notwithstanding that, the mother has evidenced no real change in her view, or acceptance of responsibility on her part for [X]’s presentation, written submissions made on her behalf asserting a campaign on the father’s part to discredit her.
What appears to have been ignored in the mother’s advancement of her case in that regard is that the father consented to the 2013 orders which permitted [X] to remain in her primary care, in circumstances where I accept that the mother was at a significant risk of a change in residence to him at that time given what was, on any view, a weak case against him, a case she continued to maintain right up to the door of the court and after and in circumstances where the Independent Children’s Lawyer was raising concerns about the terms of settlement.
If the father was truly on a campaign to discredit the mother then 2013 potentially presented him with that opportunity, not four years later. What the father wanted then, and what he has always wanted, is the opportunity to have a meaningful relationship with his daughter in her best interests.
Whilst the mother sought to promulgate in these proceedings a view that she did not regard the father as posing an unacceptable risk of harm to [X] by reason of sexual abuse and that she had told [X] he had not sexually abused her, the whole of the evidence supports a finding that she either continues to believe the father has sexually abused [X] or she continues to hold concerns that what [X] continues to say about her father has a basis in fact and that contrary to her evidence in these proceedings, she has done little to reassure the child otherwise.
The mother’s beliefs to that end are supported by the evidence of Dr E, Mr B the school Principal, the mother’s counsellor, Ms O, and other evidence before the court.
On the evidence of Dr E, until the last time she saw the mother, she was still concerned that the father had sexually abused [X].
I accept her oral evidence that the mother’s profession of the idea that she no longer accepts the father poses an unacceptable risk of sexual abuse of [X] “does not actually change the underlying belief” and the mother’s conduct supports the view that her underlying belief has not changed, irrespective of what she has said or filed in these proceedings.
That conclusion is supported on the whole of the evidence before the court, including her social media postings after the 2013 trial.
It is supported by the mother’s failure to take sufficient or active steps to help [X] by reinforcing in her an understanding that her father is a safe caregiver. The mother had a positive duty to do so, a duty that extended beyond making the child available to the father in compliance with court orders, but doing what she had to do to prepare her so that she would be able to comfortably transition into his care. [34]
[34]Webber & Bud (No. 2) [2011] FamCA 539 at [7]
It is supported by evidence that the mother has continued to repeat and report the disclosures at odds with the matters placed on record on her instructions before Justice Forrest at the time of the making of the 2013 orders. The submission on behalf of the mother that the father has been looking for every opportunity to prove that the mother still adheres to that belief is unpersuasive.
It is supported by acts of omission or commission by her that has allowed the allegations to be ventilated and gain momentum at [X]’s school to [X]’s detriment with little purposeful effort on her part to de-escalate and manage the difficulties arising from [X]’s disclosures and distress at school, which it was open to her to do, resulting in the erroneous belief amongst some of the parents that the father presents a risk to [X], something the mother expressly indicated to Justice Forrest in 2013 was not the case.
The mother’s evidence that it was the father, and not her, who raised with the school the sex abuse allegations against him, is not supported on the evidence of Mr B that it was the mother who first told him sometime between the acceptance of [X]’s enrolment and when she started school. Mr B was cross-examined. He was an impressive and credible witness.
The court further accepts Mr B’s evidence as to how the allegations have permeated not only the parent body but have distressed staff.
I accept the submission of Counsel for the ICL that the mother’s attempt to make a distinction between allegations against the father made by her, as opposed to her acting as an intermediary by relaying as a concerned mother to others including the relevant authorities simply what the child is saying or disclosing, was hollow and a distinction that cannot be accepted by the court on the evidence.
I accept the further submission of Counsel for the ICL that whether the mother’s adverse view of the father is a result of a genuine but mistaken belief that he has sexually abused the child, a manufactured belief or simply a desire to remove him from [X]’s life for whatever reason, is immaterial. The effect for [X] is the same, namely extreme behaviours by [X] when she transitions into the father’s care.
I accept the submission on behalf of Counsel for the ICL that the concession made by the mother to the court on 29 May 2013 did not evidence any real professed change of belief by her but likely arose because the mother was at significant risk of an outcome of the trial effecting a change of residence to the father had she continued to maintain her concerns about him. That submission is supported by the evidence of what the mother told the Department, namely, that “it was all becoming too difficult …...”
I accept the submission of Counsel for the father with respect to the parallels between the conduct of the mother in this and the earlier trial, for example, rejection of professional evidence, rejection of Departmental findings, repetitious behaviour such as the advancement of further evidence as to why the father should not have time with the child or his time should be reduced, together with assertions of unprofessional behaviour on behalf of helping professionals such as Ms M and Dr E.
With respect to the latter, the mother’s recorded assertions to Mr F with respect to her concerns about Dr E and the confidentiality of the process are at odds with her counsellor, Ms O’s session notes of 18 August 2014 which reveal that the mother sought Counsel’s advice or told Ms O that she had sought Counsel’s advice on whether Dr E’s report was biased.[35]
[35] Exhibit 18
Nor is this Court persuaded by the mother’s evidence that her subsequent change of position about the father arose because of a meeting between the father and his partner.
I accept the submission on behalf of the father that it is unlikely that if the mother had a true change of heart, or if she had had true insight into the emotional welfare of [X], that she would have been resistant to Ms C’s picking up [X] from school, the mother instead choosing to litigate that issue by way of a contravention application against the father, insisting he had breached an order by allowing her to collect the child. I accept that it was evidence of her inability to disengage her own interests from the protective needs of [X] as Ms C’s involvement potentially provided a circuit breaker, a potential avenue of relief, for [X]’s distress at changeovers.
Had the mother had a true change of heart she would not have sought a further investigation by the Department after receiving the note in [X]’s pigeonhole and the letter from Mr C which raised nothing more than earlier allegations of abuse which had been investigated.
All that referral was likely to do was start [X] on yet another round of investigative intervention resulting in her becoming distressed. Mr B gave compelling evidence as to the level of [X]’s distress when police attempted to interview her at school following her disclosures in February 2014.
It was a request made notwithstanding the mother’s understanding of the earlier expert reports, the concession she made to the Family Court and the subsequent orders by consent, the advice of Dr E to the Department of which she had been made aware and the outcome of an earlier Departmental investigation that made a finding against her.
Had the mother had a true change of heart she would have demonstrated a capacity to take on board and respond to the concerns about her role in the family dynamic thereby demonstrating some insight into her contribution to the conflict and [X]’s presentation.
And yet, extraordinarily in this court’s view, given the level of professional involvement with this family, not to mention the involvement of the authorities, at [61] of Mr F’s report, in the context of the mother reporting that [X] had been consistently distressed at the prospect of spending time with the father and very distressed at changeover, the mother was recorded as saying that “(s)he does not understand why [X] behaves in this way. I will never have the answer of what the distress is about.”
Whilst that interview occurred in August 2015, any doubt that the mother may have become better informed and received that answer – the answer that she was seeking to that end in the intervening period to trial including as a result of the ventilation and testing of the evidence in the course of this seven day trial, at [116] of written submissions, Counsel for the mother, Mr Bunning, submitted on her behalf that “she does not know why the child is distressed at changeovers.”
That submission cannot be accepted on the evidence. Either the mother does know and is being disingenuous or she should know. She has had that answer. It has been sign-posted for her time and time again for years. She either will not accept it or she has chosen to ignore it. In the vernacular, she has been told, but she doesn’t “get it” or she chooses not to “get it”.
I accept for example, that the mother acknowledged with Dr E in her meeting with her in April 2014 that the contents of Dr E’s report to the Department was very similar to the conclusions drawn in the earlier assessments.
However the mother has evidenced an inability to focus on [X]’s needs as opposed to her own needs, cloaking her lack of capacity to support the child’s relationship with the father under the mantle of the need to protect the child from distress, distress largely caused and/or contributed to by her.
Evidence of the mother’s self-focus, as opposed to child-focus, was noted by Dr E in her report to the Department on 5 May 2014, namely that in her meeting with the mother:
She was … unable to focus her concerns and distress on [X]. Instead she repeatedly returned to the impact on herself. She does not want to change the orders or increase [X]’s time with Mr Cribb…. She wanted [X]’s view of who she wants to live with to be considered. I discussed the difficulty of asking [X] to make such decisions objectively in the context of her divided loyalties…”
When confronted with an adverse report or an opinion with which she does not agree, the mother’s historical default position is to either seek a different expert to bring a set of “fresh eyes” to the problem, as she did in seeking the engagement of Mr F in lieu of Ms M, or directly or indirectly blame the messenger, be that Ms M who is unprofessional according to the asserted opinion of Ms J, relayed through the mother – no direct evidence from Ms J on that – or on the submission of Ms Oakley because Ms M had “overstepped her role,”[36]or Dr E who was unprofessional, leaking confidential information and/or evidenced bias, or the Independent Children’s Lawyer, or Child Safety, or the system, as evidenced by the mother’s various complaints about helping professionals in the Family Court and the current proceedings or by her social media posting on a public website on 23 July 2014.
[36] Exhibit 38
The court does not accept the mother’s evidence as to why she ceased to see Dr E who had been engaged to play a critical role in managing the relationship between [X] and her parents. I find that the mother chose to disengage with Dr E following her becoming aware of her adverse report to the Department of an assessment of the issues the mother needed to address, another expert report raising concerns about her.
I find that because she was unhappy with the report, she did not re-book, despite follow-up. In so doing, she frustrated a critical process implemented with her consent by court order for the purpose of repairing [X]’s relationship with the father in her best interests, an outcome she, by clear inference, led the court to believe she was committed to in 2013.
Notwithstanding a six day trial in the Family Court, her concessions made at that time and the consistent evidence of a range of experts with all the facts as to the cause of [X]’s presentation - not experts with whom only the mother had engaged such as Ms T - at [65] of Mr F’s report the mother continued to advance that [X]’s distress was somehow linked to the notion of her fear of sexual abuse, she feeling safe with Ms C (“I ask why. She won’t touch me in the poo hole and I can’t say, well, it didn’t happen.”)
Notwithstanding part of the therapy process with Dr E being the mother’s need to affirm [X]’s safety and that [X] was likely to continue to make allegations she had been abused which may well be untrue because the mother will not actually tell her or give her permission that the father was safe, the mother either ignored that advice or was unwilling or unable to implement it.
I accept the evidence of Dr E that unless the mother is prepared to support [X] in feeling safe with her father and [X] gets the message from her that the allegations have not been substantiated then it is highly likely that [X]’s anxiety will continue into the future.
Any proposal for further therapy as sought by the mother is unlikely to work as there is no evidence that the mother is willing to be challenged on her constructs or sees any need to do so.
If the mother has gained any assistance from the counselling work she has undertaken it has not translated into positive change for [X].
The mother, as [X]’s primary carer has evidenced no real insight or capacity as to what she might do differently to further the child’s relationship with the father. I accept the submission of Counsel for the ICL Ms Carmody, that this suggests that the mother is unlikely to change and her behaviour is entrenched.
Save for the evidence of her current counsellor, Ms O, a process that does not appear to challenge the mother’s constructs at all, there was no evidence from the range of professionals that the mother had consulted over the years.
The written submissions made on her behalf support a conclusion that the mother continues to lack insight and accountability.
What risks exist for [X] centre on the mother, not on the father.
They centre on the mother’s primary care of the child.
They centre on her lack of insight into [X]’s behaviour, her inability and/or unwillingness to address the emotional manipulation and harm she is causing her and her inability to support the child’s relationship with her father, demonstrated time and again in various contexts and scenarios, be it in or out of the school environment, reported on time and again by court experts and others independent of the mother and father.
I find that [X] needs to be protected from the continued likely escalation of that emotional manipulation and harm and the likely destruction of her relationship with her father in the primary care of her mother.
I accept the evidence of Dr E that the risks to [X] include mental health problems such as anxiety, depression, difficulties with sense of self, the development of her identity, how she sees herself and then going into adolescence, the consequences might be in severe cases if she does not learn to manage the situation, substance abuse, self-harm or other strategies. I find that the risks have impacts for [X] socially, educationally and opportunity for her to achieve her full potential.
Putting to one side whether the mother’s proposal presents an unacceptable risk of family violence as defined by the Act - my view being that it does by reason of the mother’s history of failing to meaningfully support the child’s relationship with the father (see, for example, section 4AB(2)(i) of the Act), the mother’s proposal presents an unacceptable risk of emotional and psychological harm to [X] in her primary care, namely, a continuation of a pattern of emotional turmoil and emotional harm because of the mother’s attitudes and beliefs about the father.
The mother has failed to act protectively of [X], a fundamental parental obligation and in that respect she has evidenced a poor attitude to her responsibilities as a parent.
The welfare concerns first expressed by the father a number of years ago are supported on the whole of the evidence, including the compelling evidence of Dr E and Mr F, evidence consistent with the earlier opinion of Ms M, a common theme being the way the mother interacts with [X] around her relationship with the father.
I find that the mother’s conduct has significantly contributed to:
a)The child’s exposure to litigation and parental conflict over her best interests for almost the entirety of her life, contrary to her best interests.
b)The child’s exposure to systems abuse as a result of her engagement over the years with doctors, allied health professionals, the court, the police, the State welfare authorities as a result of the child’s maladaptive behaviour in making allegations of abuse against the father which are likely to continue to bring her to the attention of the authorities, continue to expose [X] to repeat investigations and/or examinations, resulting in likely further interruption in the father-daughter relationship, unnecessary scrutiny of [X] and distress to her in the process and further intervention by the welfare authorities where there has already been a significant child protection involvement in her life. In that regard following fresh notifications at the end of 2014 and the beginning of 2015, the Department’s records of 5 January 2015 noted that
….the ongoing pattern of inappropriate parental behaviour places [X] at risk of cumulative emotional harm and if the department continues to receive similar concerns, more intrusive Departmental intervention may be required.[37]
[37] Exhibit 1, p 134
It does not protect [X] from the risks that present for her in the mother’s primary care including the need for [X] to conform to the mother’s view that presents as psychologically and emotionally damaging to her.
It does not address the child’s fears about the father being a safe person, a person who loves her and will protect her where the mother has evidenced the incapacity to provide her with the clear endorsement that I referred to earlier (see for example [15] of Mr F’s report) and where, on the evidence of Mr F at trial, the mother was “not presenting a position that she was actively refuting for [X]” and where the mother’s proposal for further robust therapy must be viewed in the context of the history of her being dismissive of professional advice that does not accord with her view.
I accept the evidence of Mr F that the proposal of the mother will likely “doom” the father/daughter relationship, [X] likely to eventually vote with her feet, with potential short and long-term ramifications for her.
One of the potential ramifications for [X] as she matures and forms her own independent thinking and her own separate self from the family is that she may reappraise her family situation and the level of threat that she construed her father to be, with potential impacts for her relationship with both parents. It may also have impacts for how she views parenting.
It is a proposal inconsistent with the case the mother has prosecuted in these proceedings, namely, she has done her very best to facilitate a relationship between [X] and her father, the child continuing however to evidence increasing fear.
It is a proposal unlikely to address the child’s extreme level of stress at changeovers because changeovers will continue and the child will continue to transfer between homes trying again, on the oral evidence of Mr F, “to balance and juggle and do all the hard work with that”.
The proposal of the father and the ICL involves a significant change to the parenting structure for [X].
It involves a change in primary care, a change of school and no time with her mother for a period of four to six months.
The change in residence from her mother to her father will in the short term be a likely traumatic change for [X], a child already distressed and displaying maladaptive behaviours, a disruption for [X] that could have consequences for her immediate emotional wellbeing and development.
As opined recently by Mr F at trial, it will likely involve grief, loss, confusion, a high level of stress, intrusive thoughts about her mother and missing her mother constantly. It may interfere with her day to day life and existence. She may feel rejected by her mother.
It was a change rejected by Ms M in 2012 when she was exploring parenting options for the assistance of the court for [X].
These are weighty matters indeed, as no court wishes to cause a child pain.
However, as traumatic and distressing as the change will likely be for [X] and whilst a change that may present with some disruption in the mother/daughter relationship, the court is unable to conclude on the evidence that it will be a change that will likely result in a destruction of her relationship with her mother.
It is a change that presents as being the least-worst outcome for [X].
This is because whilst [X] exhibits high levels of anxiety on the evidence of Dr E, that exists “in the presence of both parents”.
[X]’s extreme behaviours are damaging for her. The mother informed Mr F that she was worried about [X]’s emotional state and the fact that things are not settling “no matter what she tries to do to reassure [X] that she is okay with her father is of significant concern to her”.[43]
[43] Mr F’s report at [78] and [84]
The expert evidence is that the behavioural problems currently experienced by [X] are likely to persist and may become worse in the mother’s primary care.
To not make a structural change means that [X]’s false beliefs about her father and false beliefs about her being a victim of sexual abuse will likely continue and continue to manifest in harmful ways.
A continuation of the current parenting structure represents not simply a loss of her relationship with her father but a continued problematic relationship with her mother which will remain unaddressed by reason of the mother’s lack of insight.
The benefits to [X] in being afforded the opportunity to maintain a relationship with both parents outweigh the detriments to her in removing her from the primary care of her mother.
The court accepts that [X] wants a relationship with both her parents. The observations of the father and Ms S support such a conclusion as I noted earlier, however, in the primary care of her mother [X] is not able to express that love – and I think I have said that now a few times.
The proposal of the father not only affords [X] that opportunity, it also affords her an opportunity under the guidance of a parent with demonstrated insight to address the dynamics of a relationship with her mother through therapeutic assistance.
Family therapeutic assistance as proposed by the mother has not worked for this family. It is unlikely to work unless the mother is able to adopt more reflective introspection and insight.
In summary, whilst the father’s proposal will cause [X] significant distress, it is a proportionate response given the risk to [X]’s welfare in her continuing in her mother’s primary care.
Whilst it presents with a range of unknowns for [X] and will place her in an untested parenting structure there are positive knowns. They are:
a)There is positive information from Dr E about the capacities of the father and Ms C. After interviewing Ms C, Ms M was also positive about her capacities and child focus.
b)Of the two parents the father has evidenced the greater child focus and insight into [X]’s needs. That conclusion is not altered by complaints about the father’s acknowledgement of [X]’s distress at changeovers or the fact that he could have handled some interchanges with the mother and/or [X] better. That conclusion is not altered by the court accepting that the father has made some poor choices including his exchange with Ms B, further evidence of escalating tensions at the school that [X] attends that have affected staff, students and parents alike with impacts for [X].
c)Both the father and Ms C have evidenced commitment in the face of adversity, not to mention resilience and a preparedness to go the distance no matter how hard the terrain. The father has withstood allegations that he is a child molester including scrutiny at close quarters in [X]’s school community. He has endured the curtailment of his time with [X]. He has withstood the scrutiny of the court and the rigours of litigation in two courts. He has been committed to protecting [X]. It is resilience and commitment he has been able to maintain notwithstanding his history of post-traumatic stress disorder and anxiety. It is a resilience and commitment that he will need to respond to the difficulties that will inevitably present for [X] on his proposal.
d)The father and Ms C have demonstrated a capacity to seek professional support and to take and act upon advice and to provide [X] with the support she needs to manage the change. They continue to engage with Dr E.
e)Ms C, who will assume an increased parenting role, was a most impressive witness. A similarly positive assessment of her was made by Dr E and Ms M[44]and Dr E’s assessment in her letter to the Department dated 24 March 2014, particularly her ability to manage [X]. [45]
[44] See for example, [29], [30], [31] and [51] of Ms M’s report dated 21 June 2012 (Exhibit 31)
[45] Exhibit 1
Whilst the court acknowledges evidence with respect to the way the father has contributed to the competitive conflict that has played out at the school and between the parents, the court accepts the evidence of the father that when [X] gets through the difficulties of transitioning into his care she is secure, content and childlike in his care which suggests that the father has an adequate caregiving system for the child. In so concluding I place weight on the observations of Ms S, a trained professional, of [X] settling after handover, evidence that supports the evidence of the father and his partner with respect to her behaviour in his household. The evidence of Ms S also provides some support for the father’s caregiving capacities.
The court accepts that given the magnitude of the change and a likely continuation of the mother’s conduct that [X] would, on the father’s proposal, need an opportunity to settle in the father’s care without influence of the mother and that to that end, a moratorium on the child seeing the mother as proposed by the father and the ICL if a change is effected should be imposed whilst that period of settlement occurs in the father’s household and at any new school if that order is made.
I accept the evidence of Mr F that the mother is likely to react adversely to the order proposed by the father and it would not be in [X]’s best interests given her close attachment to her mother and her alertness to her mother’s emotional state that she be exposed to either maternal distress or any reinforcement of a belief, deliberate or not, that she should fear her father.
In relation to the amount of time of such a moratorium, acknowledging that this is not an exact science and the difficulties in this given [X]’s age, I accept the evidence of Mr F that it should be at least one school term and preferably two school terms. That favours the proposal of the father for a six-month moratorium as opposed to the proposal of the ICL, given that preference.
The proposal of the father maximises the opportunity for the father to develop trust with [X] and for her to understand her father is not a figure of fear, a critical outcome for her.
There are further differences between the proposals of the ICL and the father, namely, over what period thereafter the mother’s time with the child should be supervised and what should then happen once supervised time concludes, the ICL’s proposal being that a further assessment in the form of a report be obtained from the supervisors about the progress of the mother’s time and the father proposing a different regime of supervised daytime time initially over a period of 12 months and then on Saturday and Sunday and thereafter each alternate weekend, block time as agreed and time on special occasions.
Again, acknowledging the significant difficulties in such an assessment, the proposal of the father would permit him more time to settle [X]. The proposal of the ICL prolongs an already prolonged litigation experience for [X].
Whilst on the proposal of the father and the ICL, a change of school represents a further significant structural change for [X] the current school environment for [X] is extremely difficult.
The father informed Mr F that he is concerned that he is seen as some sort of child abuser. He feels he has been alienated from the school.
If the court makes the change to the father’s care, I accept in [X]’s best interests that a change of school is also warranted: a fresh start likely to have overall benefits for [X] and for the father in his primary care of her.
It is a change supported by Mr F to remove [X] from an environment where the allegations of abuse have become common knowledge. I accept his evidence that:
…it’s about this child’s functioning not only across - transitions across family but through the basic task of getting picked up and dropped off to school….. and that if there…. has been this level of display in this school community for so long and there are other parents and parents who are invested emotionally in this, my concern is that it’s going to make it harder for [X] to get used to the idea of her father as her day-to-day broad-ranging caregiver.
I accept that if the change proposed by the father is made, then an order restraining the mother from attending the school or contacting the school is warranted to support [X] in that change and to avoid some of the problems of the past, for example, the removal by the mother, which I accept occurred, of the father’s material from the classroom as suspected by the school and her challenges and interference with respect to the father’s role in the child’s schooling.
Mr B is also recorded as telling the Department on 4 March 2014 that a male parent of a prep student who attends the school and was familiar with the mother told him that the mother cannot have a conversation without discussing the father, the Department or court and “it is all-consuming” and that the mother “lives, eats and breathes it”.[46]
[46] Exhibit 1, p 93
I accept that the conduct of the mother at [X]’s current school, which has also led to a consideration by the school of enforcing a forced absence on her, and her level of involvement in the school is such that a failure to make the restraints sought by the father would undermine any efforts to support [X]’s transition to a new school.
I accept the submissions on behalf of the ICL Ms Carmody, that there are no other options to ensure that the mother would not interfere.
I place significant weight on these findings, which support the proposal of the father.
Section 60CC(3)(c) – the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(iii)to participate in making decisions about major long-term issues in relation to the child; and
(iv)to spend time with the child; and
(v)to communicate with the child.
Section 60CC(3)(ca) – the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.
Section 60CC(3)(f) – the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs.
Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.
It is appropriate to consider these subsections as a group as each touches on the other and relates to matters to do with parental responsibility.
I repeat and rely upon earlier findings relevant to these considerations, particularly parental capacities, a significant factor which has been discussed earlier.
In the respective care of both parents, [X] will have her day-to-day care needs met. She is doing well academically at school.
Both parents have met their financial responsibilities to [X]. I accept the submissions on behalf of the father with respect to the father meeting his child support obligations.
However given the findings that I have earlier made, and that I do not propose to repeat, but particularly the mother’s lack of capacity to meet [X]’s emotional needs and to assist [X] to regulate her emotions in a healthy way and her inability to embrace solutions to manage [X]’s distress, these present as a significant stain on the mother’s parenting of [X] and ability to provide for the full spectrum of her needs, one of which is to be able to have a fulsome relationship and freely express love for both her parents.
The father, whilst an untested care parent supported by Ms C, presents as the only parent likely and capable of redressing the situation in the context of protracted litigation and the history I have outlined in some detail.
Any criticism of the father for not exploring alternative solutions such as mediation pursuant to the 2013 orders is not persuasive.
I place significant weight on these findings, which support the proposal of the father.
Section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.
This is not a relevant consideration, save the mother seeks that in the event that the court orders that the mother’s time is to be supervised, that the costs should be paid by the father or equally shared.
If such an order is made, the child would be in the sole care of the father for the period of any moratorium, and thereafter for the period of supervision, and then thereafter remain in his primary care on the father’s proposal.
What child support contribution, if any, the father may receive from the mother is unknown. She does not present as a person of means.
The father will also be required to fund the costs of the child’s education, including the costs incidental to a change of schooling on his proposal.
If time is at a contact centre and not a private centre, the costs of that may not be significant, however, both the ICL and the father seek that the supervision be reportable and be undertaken by a suitably qualified supervisor such as LifeCare. In light of the familiarity of LifeCare with this family, its continued involvement would have benefits for [X] at a centre with which [X] is familiar.
In relation to the funding of any further assessments, if the court was minded to make that order on the proposal of the ICL, it would be difficult for the court to conclude that that assessment should not be met equally by the parties.
Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the Court thinks are relevant.
The relevant background of the parties and child has been traversed in the family reports and in my Reasons and in the expert evidence. I rely upon earlier findings relevant to this consideration.
Section 60CC(h) - whether the child is an Aboriginalchild or a Torres Strait Islander child
This is not a relevant issue.
Section 60CC(3)(j) - any family violence involving the child or a member of the child's family.
Section 60CC(3)(k)- if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) (ii) the circumstances in which the order was made;
(iii) (iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) (v) any other relevant matter
I repeat and rely upon earlier findings relevant to these considerations.
There are no current family violence orders.
Section 60CC(3)(l) - whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child, this is a significant consideration.
I repeat and rely upon earlier findings relevant to this consideration.
Both parents seek an end to litigation and the making of a final order.
It is in [X]’s best interests that orders are made in terms that are least likely to lead to further litigation. That supports the making of a final order.
[X] needs peace. She needs as much freedom as the court can permit, consistent with her best interests, from further assessment and/or intervention to enable her to enjoy what is left of her one and only childhood.
On balance, I have concluded that the father’s proposal is more likely to achieve that outcome. It provides for a moratorium that maximises the opportunity for [X] to settle and benefit from therapeutic support, recognising as the court does that there is unlikely to be a quick-fix solution for [X].
The proposal of the father also provides some clarity as to the timeline – some end date.
It potentially avoids the need for review on the proposal of the ICL, which seeks a further report from the supervisor and the possibility of further litigation if there is no agreement on how to move forward, and as the evidence makes clear, these parents have a very poor history of reaching agreement following the making of the orders in 2011.
Seeking a further review increases the risk of systems abuse for [X], which I have been at pains to outline.
The proposal of the mother offers [X] more of what she has known in her primary care. It is likely to lead to further litigation with no proposal as to when the reduced time is likely to increase, if ever, and how one is to gauge when the pressure has been sufficiently released to suggest such an increase. In light of my findings earlier discussed, the pressure is unlikely to be released.
The submission on behalf of the mother at [124] and [125] of her written submissions, that with the conclusion of proceedings and the court making a clear order as to what to occur and the conflict stopping, the parties can engage in robust family therapy accepted by the mother, is unpersuasive. It ignores the history, the past being the best predicator of future behaviour.
Clear orders were made in 2011 and 2013. Those orders had a limited effective time-frame. Nor is there persuasive evidence that the conflict will somehow magically stop with the cessation of these proceedings. It did not happen in 2011 and it did not happen in 2013.
Whilst the conflict between the parents is a significant issue, the expert evidence is clear as to the fundamental impasse for this family. [X] needs to be cocooned from dispute and litigation about what is in her best interests. She needs to be cocooned, if possible, from further assessment and litigation. The proposal of the mother is likely to expose her to further complaint about the father and his household and further evidence gathering by the mother.
I place significant weight on these findings, which support the proposal of the father.
Section 60CC(3)(m)- any other fact or circumstance that the court thinks relevant
There is no other fact or circumstance that the court thinks relevant.
Conclusion on Section 60CC
The court’s findings lead to the conclusion that [X]’s best interests are served by the proposal of the father.
Whilst both parents have contributed to the level of parental conflict with impacts for [X], I accept the submission of Counsel for the ICL that the structural history of this dispute is such that the focus must necessarily be on the mother.
Whilst it was incumbent on both parties to develop a co-parenting relationship and work towards assisting [X] to overcome the difficulties in her relationship with the father caused by the allegations of abuse, having made the pivotal concession she did in 2013, the heaviest burden lay with the mother, [X]’s primary carer.
She has failed, even on her own case. Laying blame for that failure on the father and seeking to then focus on his mismanagements and/or mis-steps is a contortion of the main issue, a distraction played out over days of court time, reinforcing the ultimate conclusion as to the mother’s ongoing lack of insight and failure to take responsibility.
In 2013 the father was, given the history and the nature of the allegations made against him, a figure of mistrust and fear for [X]. He had had limited and constrained time with [X] and the unsupervised time he was thereafter afforded was graduated time.
Any positive move forward in [X]’s best interests required the clear and unequivocal support of the mother to reassure [X]. She was best placed as primary carer to give [X] the skill-set and the support she needed to manage that transition, a burden that she as primary caregiver was prepared to embrace in consenting to the orders of 2013.
Those orders provided her, as they did the father, with a framework to address that issue by ensuring that [X] and her parents received the best therapeutic support available.
That failed because the mother refused to confront her own pattern of behaviour, and in [X], to make the orders work. I accept that it was the only logical reason why the expert reports available at 2013 were provided to Dr E as part of her brief - the very reports the mother repeatedly sought to her discredit to exclude from evidence in these proceedings - proceedings that centre on a best interests inquiry relating to the safety and wellbeing of a little girl manifesting extreme and concerning behaviour on everyone’s case.
Save for the evidence of Ms O, the mother adduced no evidence from any of the professionals she had consulted over the years and when Dr E put to the mother concerns about her behaviour, the mother ceased seeing her. That particular failure was clouded again at trial in obfuscation on the part of the mother as to the circumstances of her disengagement, the mother expecting the court to somehow accept as credible that it had little to do with the report of Dr E to the Department. That counselling was a critical process effectively frustrated by the mother.
If the mother was in any doubt as to what she had to do in May 2013, the comments of Counsel for the Independent Children’s Lawyer at the time should have reinforced, ‘laser beam’ like in her mind that she was required to address her behaviours and attitudes and undertake the work that needed to be done to demonstrate that she saw benefits to [X] in making her father a significant part of her life.
She failed to do the necessary work she was required to do.
She has failed to assist [X] and, by word, deed or omission, has increased the level of [X]’s anxiety and distress. A fundamental parental obligation is to do no harm, to make it better, not worse, for your child.
In the mother’s primary care, [X] is placed at an unacceptable risk of harm. Her behavioural problems are likely to continue and worsen.
I place significant weight on the evidence of Mr F in this regard.
The mother’s invitation to again address the problems through therapeutic assistance for the whole family is unlikely to succeed for the reasons that I have outlined, because she has evidenced no motivation to fix the problems which centre on her.
Her proposal instead places, again, the burden on [X]’s small shoulders, the most recent attempt with a school counsellor whose role is to normally provide pastoral and spiritual care to young children at the school, likely unqualified to deal with a complex matter such as this, given its history and the challenges that presented for the extremely qualified Dr E, counselling which in any event did not include the father who, on the mother’s case, was the problem. Where the “proof of the pudding is in the eating”, the counselling of (omitted) does not suggest there has been any change for the better for [X] or the mother.
The unhappy choice for the court, insightfully put by Counsel for the ICL Ms Carmody, is whether it is better for [X] to have an unhealthy relationship with her primary attachment figure mother and no relationship with her father or be allowed to develop a normal relationship with her father and his wife at the expense of disruption of her primary care relationship with the mother.
There is no Solomon-like solution for the Sophie’s choice the court is potentially being asked to decide.
However, based on the court’s assessment and findings, a change in [X]’s primary care would be in her best interests. It is a proposal which provides at least some scope for [X] to have a normal relationship with both her parents and I place particularly significant weight on that finding.
These findings support the proposal of the father.
Save for the issue of the length of the moratorium on time and how the matter should be managed thereafter, the father’s position accords with the position of the ICL seized with the serious responsibility of representing [X]’s interest in these proceedings.
It is an outcome supported on the evidence of Mr F, the court expert.
Whilst not a parenting outcome supported by Dr E (to whose overall evidence I accord significant weight) with respect to what parenting structure should be made in [X]’s interests. I place greater weight on the evidence of Mr F because of Dr E’s therapeutic role, the mother accepting, on her written submissions that Dr E’s brief did not extend to recommendations on the quantum of time, whereas Mr F’s role was to assess whether structural changes in [X]’s best interests should be implemented, having more recently interviewed [X].
It will be a matter for the father in his exercise of sole parental responsibility to determine which counsellor should be engaged for [X]. The court’s preference is Dr E because of her understanding of the issues, [X] having already met her and given the number of therapists with whom [X] has already engaged. However, it may be that Dr E does not view that as appropriate in the light of her evidence at trial in relation to [X]’s comfort levels with her at the time she was seeing her and the basis for that. She may, however, review that, given that the mother will not be involved in the counselling. Such counselling with Dr E however should be non‑reportable.
Whilst the court respects the experience of the ICL and her Counsel’s thoughtful contribution to the discussion and has given considerable weight to those views as to how the matter should be managed into the future, the court’s findings support the proposal of the father on balance, which places the onus on the parents to fix [X]’s issues and their own. Relevantly, the proposal of the father seeks to avoid further assessment, at least in the context of the current proceedings. It provides for final orders, as best they can be made, one of the few areas on which the parents agree.
Parental responsibility
Section 61DA prescribes a presumption that it is in the best interests of a child for orders to be made for the parents of the child to have equal shared parental responsibility
I find, however, based on the findings made under section 60CC of the Act, that the presumption is rebutted by evidence that satisfies the court that it would not be in [X]’s best interests for her parents to have equal shared parental responsibility.
Neither party seeks an order for equal shared parental responsibility nor does the ICL.
There is cogent evidence that suggests that the parents are unlikely to be able to exercise that responsibility. They have a hostile, conflicted relationship devoid of trust.
On the submission of the mother, the parties have not communicated by either email or telephone for a number of years and are unable to speak to each other.
The orders consented to by the parties in 2013 providing a mechanism for resolving their disputes by family dispute resolution failed, the parents disputing at trial who was responsible for that failure.
It is in the best interests of [X] that her father, who will assume her sole care initially and, subsequent primary care, who has demonstrated insight and who will be required to seek support for her in the management of her needs and enrol her in a new school, have the authority of a sole parental responsibility order unimpeded by the mother.
Having not made an order for equal shared parental responsibility, it is not necessary for me to follow the pathway set out in section 65DAA.
Based on my findings under section 60CC I have concluded that the proposal of the father and the ICL as to structure will meet [X]’s best interests.
A change of residence should be effected immediately to ensure that [X]’s needs are addressed as soon as possible. I order that [X], who is now within the court precincts pursuant to an order made in chambers on Friday, be delivered to the custody of the father.
I propose that the orders be explained to [X] by Mr J of the Child Dispute Service before that occurs.
I propose that a change of school occur immediately, or at such time as the father deems appropriate, given that at the time of delivery of these Reasons, it will be the start today of a new school term.
The mother should be restrained from attending at [X]’s school.
It is appropriate that the mother deliver up to the father forthwith [X]’s passport, given that [X] will be residing with her father and he will assume sole parental responsibility for her.
The other orders sought by the father for counselling and the provision to third parties of a copy of this order and these Reasons are appropriate. For the reasons given earlier, such an order should also extend to the father being able to provide the same information to the police, if necessary. It should also extend to [X]’s new school, an appropriate mechanism to enable the father to advise the school in light of [X]’s circumstances and the court’s findings.
The father should also be at liberty to provide to [X]’s therapist copies of any expert reports, should that therapist not be Dr E. Dr E will have copies of those expert reports and, under the order I have made, she will also receive a copy of this order and my Reasons.
It would be appropriate that the mother meet the costs of ongoing supervision following the moratorium on her time, given that the father will be assuming the bulk, and possibly all, of the costs of [X]’s care during that period.
Whilst the court has given some consideration to whether the mother should prior to resuming unsupervised time with [X] provide a report with respect to any therapeutic engagement and evidence that she has addressed the matters raised by Dr E, it is not a matter raised a trial and, whilst it can be raised now and further submissions sought – well, possibly it can’t because Ms Huth is not here, nor is Mr Parker – the court has concluded that the proposal of the father addresses and balances, as best it can, the issues raised.
An order should, however, be made that both parties be at liberty to provide to their own therapeutic counsellors, if any, a copy of these orders and Reasons, together with the reports of Dr E and Mr F.
As the mother’s posting of 23 July, 2014 may have contravened s.121 of the Act, I propose to refer the matter to the Registrar of the Court for referral to the Marshal for consideration as to what action, if any, should be taken in that regard.
Section 121 of the Act restricts the publication of court proceedings. The mother’s posting under her name, and accompanied by a photograph of her, appears to be a publication by electronic means which may have disseminated to the public, or a section of the public, an account of court proceedings, namely, a “Magellan case” which involved an ICL, Child Safety and a distressed child, particulars possibly sufficient to identify not only the mother as a party to Family Court proceedings but also [X] - given that [X] is the mother’s only child - to a member of the public or to a member of the section of the public to which the account was disseminated, the court noting that there was one “like” or “thumbs up” to the posting made, and the posting was part of a discussion between various persons on a particular subject that included reference to the court system.
Orders
I make the orders sought by the father in the best interests of [X].
The orders support the relevant objects of Part VII of the Act, particularly s.60B(1)(a), (b), (c) and (d), and they are orders which support the relevant principles underlying the objects of particularly s.60B(2)(a).
They are orders which give effect to the Convention on the Rights of the Child done at New York on 20 November 1989 so far as they are relevant to the circumstances of the case (s.60B(4)).[47]
[47] See, for example, articles 3, 6, 8, 9, 12, 16, 18, 19 and 20 of the Convention
I also propose to make the following orders at paragraphs 5, 6, and 26 of the orders of 29 May 2013.
I make the orders in [X]’s best interests.
I certify that the preceding three hundred and ninety three (393) paragraphs are a true copy of the reasons for judgment of Judge Purdon-Sully
Date: 24 July 2017
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