DEMOPOULOS & FULLARD
[2015] FamCA 915
•24 September 2015
FAMILY COURT OF AUSTRALIA
| DEMOPOULOS & FULLARD | [2015] FamCA 915 |
| FAMILY LAW – CHILDREN – Interim parenting – Best interests of the child – Where there is one child who is five years of age – Where interim parenting orders were in place for the child to live with the mother and spend time with the father – Where the mother had not made the child available to the father pursuant to the orders – Where the child has a meaningful relationship with both parents – Where the mother alleged that the father has sexually abused the child – Where the single expert psychiatrist recommended an immediate change in primary residence from the mother to the father - Where the single expert psychiatrist held the view that the mother has a delusional disorder - Where the mother failed to establish that placing the child in the care of the father would expose him to an unacceptable risk of sexual abuse – Where it was found that the best interests of the child required an immediate change of residence for the child – Where it was found that it was not in the best interests of the child for the parents to share parental responsibility – Orders made for the father to have sole parental responsibility and for the child to live with him pending further order. FAMILY LAW – STAY – Where the mother was given leave to make an oral application for a stay of the orders – Where the father and the ICL opposed the stay – Where it was submitted that the orders change a long-standing care arrangement and that the Court should act extremely cautiously – Where the mother submitted that the father’s parenting capacity to care for the child alone was almost wholly untested – Where it was submitted that an investigation about serious allegations remain outstanding – Where the father submitted that these matters had been considered by the Court and the father could not be regarded as being unable to provide for the child – Where the fundamental consideration is the best interests of the child – Where the application for a stay was dismissed. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(2), 60CC(2A), 60CC(3), 61B, 65AA |
| B & B (1993) FLC 92-357 M & M (1988) FLC 91-979 Clemett & Clemett (1981) FLC 91-013 |
| APPLICANT: | Mr Demopoulos |
| RESPONDENT: | Ms Fullard |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 2390 | of | 2015 |
| DATE DELIVERED: | 24 September 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Johnston J |
| HEARING DATE: | 23 & 24 September 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Harper (23/9/2015) and Mr Schonell (24/9/2015) |
| SOLICITOR FOR THE APPLICANT: | McDonell Milne Toltz |
| COUNSEL FOR THE RESPONDENT: | Ms Boyle |
| SOLICITOR FOR THE RESPONDENT: | The Norton Law Group |
| SOLICITOR ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Karagiannis |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Sydney Central Family Law |
Orders
The documents titled “Short Minute of Orders proposed by the Independent Children’s Lawyer” which includes a one page document headed “Consent Orders” and “Minute of Additional Orders Proposed by the Father” shall be Exhibit A and orders are made in accordance with Exhibit A, as set out hereunder:
1. That the Independent Children’s Lawyer be granted leave to make an urgent oral application for interim orders.
PENDING FURTHER ORDER:
2. That the child B born … 2010 live with the Father;
3. That the Father have sole parental responsibility for the child;
4. That the Mother spend time with the child on at least one occasion each week and that such time be supervised by D Group;
5. That the father shall arrange for the child to resume attending at C School within 14 days;
6. That the Mother be and is hereby restrained from attending at the child’s school at those times that the child attends.
7. That the Mother and the Father be and are hereby restrained from:
(a)discussing these proceedings with the child or within the child’s presence or hearing;
(b)discussing any allegation made in the proceedings with the child;
(c)denigrating the other parent or any member of the other parent’s family to or within the presence or hearing of the child;
(d)presenting the child to any medical practitioner or counsellor for any further assessments or interviews relating to the possibility that he has been subjected to any form of abuse otherwise than in the case of a genuine emergency or by order of this honourable court.
8. Otherwise, the parties will ensure that the child attends at Suburb E Family Medical Practice for any medical issue other than in the case of a genuine emergency.
9. That the parties have liberty to relist the matter on 48 hours’ notice;
10. That the Mother have leave to provide any therapist she may consult with a copy of the report of the Single Expert herein and a copy of these orders;
11. Such further order as this Honourable court deems appropriate;
12. That the parties shall be equally responsible for the costs of Dr F giving evidence in this matter on 23rd and 24th September, 2015 and each party shall pay their share of the costs within 21 days of receiving the Memorandum of Fees/Invoice.
Minute of Additional Orders Proposed by the Father
1. That all previous interim parenting orders be discharged.
2. That between 1:00pm and 1:15pm on Friday 25 September 2015 the mother shall place the following items on the front porch of the former matrimonial home at G Street Suburb E (“the home”):
a)B’s clothes, iPad, daily personal belongings, medicine, his favourite toys, school bag, drink bottles and school sandwich containers his pillows and doona, his Canon i70 camera (B’s belongings)
3. That the father shall attend the front porch of the home with a witness of his choice between 1:30pm and 2:00pm on Friday 25 September 2015 and shall remove the child’s belongings from the front porch.
4. That the mother shall ensure that the front gate to the property is not locked or obstructed between 1:15pm and 2:15pm on Friday 25 September 2015 and whilst she may remain in the home during those hours if she chooses she may not go beyond the front door during that period.
5. That the father be at liberty to ask for a Police officer or officers to attend with him at the time specified in Order 2 noting that there is an existing interim apprehended violence order for the protection of the respondent.
That pursuant to s 62B and s 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached [to the engrossed orders] and these particulars are included in these orders.
I request the Registry Manager to arrange for the first available date in the Less Adversarial Trial system to be allocated to the substantive parenting/property proceedings before whichever of the judges can be first available.
I order that the mother have leave to make an oral application for a stay of the orders and such application is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Demopoulos & Fullard has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC2390 of 2015
| Mr Demopoulos |
Applicant
And
| Ms Fullard |
Respondent
REASONS FOR JUDGMENT
These are urgent parenting proceedings involving interim parenting arrangements for a young child, B who was born in 2010 and is, therefore, just five years of age.
His parents, Mr Demopoulos, to whom for convenience I shall refer as “the father”, and Ms Fullard, to whom for convenience I shall refer as “the mother”, have been involved in litigation in this Court about parenting arrangements since earlier this year.
Orders were made on 24 June 2015 by Senior Registrar Campbell that, pending further order, the child live with his mother and spend time with his father each alternate weekend from after pre-school Friday to 4.00 pm Sunday and each Tuesday and Thursday from after pre-school to 7.00 pm.
This has not occurred because the mother has declined to make the child available in circumstances to which I shall refer below.
In the context of the substantive proceedings, Dr F was appointed as single expert to prepare a report about relevant matters. Dr F completed his report on 15 September 2015 and sent this to the Court. Given the very serious recommendation in the report, which was that there be an immediate change in the child’s residence from mother to father, Le Poer Trench J released the report to the Independent Children’s Lawyer (“ICL”) only and listed the proceedings before me a few days later which was yesterday, 23 September 2015. On that occasion I released the report to each of the parents and their legal representatives.
Applications
The applications which are before the Court are firstly an application by the ICL to the effect that pending further order:
·The child live with his father;
·The father have sole parental responsibility for the child;
·The mother spend time with him on at least one occasion each week and that such time be supervised by D Group;
·The child would resume attending at his pre-school which is the C School within 14 days;
·Some restraints as specified;
·Machinery and other orders; and
·An order in relation to the costs of the ICL.
The father seeks orders in the same form as the ICL, at least in their substance. He has also prepared a minute of additional orders which I would describe as machinery orders.
The mother opposes the orders sought and she seeks orders to the effect that pending further order:
·The child live with her;
·The child spend time with his father:
(a) each Sunday from 10.00 am until 6.30 pm;
(b) each Tuesday and Thursday from 3.30 pm until 7.30 pm; and
(c) such other times as the parties might agree.
·The time the child spends with the father be supervised by D Group or Ms H who is the child’s nanny;
·An order in respect of changeover;
·Some restraints; and
·The child would continue to attend his pre-school; and
Importantly, the mother asks the Court to note in my consideration of her application that she is attending upon Dr I, psychiatrist, for the purposes of obtaining a psychiatric assessment.
Background
The brief background matters are that the father was born in 1966, and the mother was born in 1974. They commenced cohabitating in May 2000. They married in 2009. They separated on 5 February 2015.
It is common ground that during the marriage and prior to separation the parents were both closely involved in the child’s care. It is unnecessary to go into the details, although there was considerable detail in the affidavits about this, because the mother agrees that until separation the parties had at least an equal involvement in raising the child.
From approximately December 2014 the parties’ apparently reasonably calm lives started becoming somewhat tumultuous and their previous longstanding capacity to cooperate in parenting the child became significantly diminished. The mother alleged that the father started to act towards her in a threatening and violent manner. She suggested to him that he had mental health issues. On the other hand, the father said that the mother had commenced to distance herself from him and from most of the persons with whom the parties were acquainted, including the parties’ respective families.
Time does not permit a detailed chronology of relevant events. But whereas prior to separation the parties had been able to live reasonably harmoniously, following separation this was far from the case.
On 20 January 2015 the mother apparently found it necessary to call the police. The police attended and asked the father to leave the home for a short time to let things calm down, which he did.
On 4 February 2015 there was an incident involving the child speaking on the phone to his uncle. There was an argument between the parents about this. Again the mother rang the police who attended and an interim apprehended domestic violence order issued.
The father subsequently decided to leave the home, this being the time of the parties’ separation. But he returned each day or perhaps close thereto, made the child’s breakfast, and made him ready for his pre-school. Each afternoon, at least for a period, the father collected the child from pre-school and then looked after him until dinner time or approximately 6.30 pm. Then the parties had an arrangement under which the child spent Saturdays for a period with the mother and Sundays with the father.
The father continued to be involved in the care of the child by going to the home. But the mother became very frustrated with this and there were a lot of arguments and difficulties. Unfortunately, the police started to become a regular feature in this young child’s life.
On 30 March 2015 there was an incident which has caused the mother to hold a belief that the father is likely to have engaged in some form of sexual behaviour with the child, or perhaps in the presence of the child. I shall refer to this again below.
The police became involved, as did ultimately, the Department of Families and Community Services. There have been investigations by the Joint Investigation Response Team (“JIRT”). Things between the parties became even worse. The upshot is that the father has not had time or contact with the child apart from some occasions when the father turned up at the home or by chance encountered the child in a public place.
In mid-April this year the mother changed the locks on the home.
The mother became so concerned that the father presented as a risk to the child that she cancelled the child’s vacation care for two weeks in April 2015. This was out of her alleged fear that the father would remove the child from vacation care and retain the child.
In late April this year the father was informed by the school that because of the existence of the apprehended domestic violence order he could not collect the child from school. This issue was ultimately resolved in favour of the father but it was short-lived and again it involved the police. The following day the mother withheld the child from going to his pre-school. This has been the pattern pretty much since that time, apart from the child attending pre-school for a couple of weeks.
The Applicable Law
The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
When considering making a parenting order the Court is to bear in mind the objects of the legislation, and the principles underlying the objects as set out in s 60B of the Act. It i’s unnecessary to go to into them in detail.
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 (s 60CA and s 65AA).
Section 60CC of the Act sets out the relevant considerations and I will come to them in due course.
I note that in parenting cases involving allegations of child sexual abuse, the fundamental responsibility of the Court remains that it is to arrive at orders which will serve the best interests of the child or children.
In the well-known case of M & M (1988) FLC 91-979, the High Court said as follows at page 77,080:
… the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.
The High Court went on to say at page 77,081 as follows:
The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access.
The High Court then referred to a “variety of formulations” by Courts in their efforts to define the magnitude of the risk. Then the High Court arrived at the relevant test, saying as follows, still at page 77,081:
This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
The Full Court of this Court said in the case of B & B (1993) FLC 92-357 as follows at page 79,778:
The “unacceptable risk” test is therefore the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
Parental Responsibility
As I have said, the father seeks an order for sole parental responsibility. Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which by law, parents have in relation to children”. I shall return to this matter again below.
Best Interests
I turn to the best interests considerations. How the Court goes about determining what is in a child’s best interests is set out in ss 60CC(2) and (3) of the Act.
Firstly, the primary considerations as set out in s 60CC(2) of the Act. These are the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. As Mr Schonell mentioned and perhaps the others did too, s 60CC(2A) of the Act requires the Court, in applying these considerations, to give greater weight to the latter consideration. I shall come back to those matters. But before I do, I propose to refer to the mother’s allegations.
Sexual Abuse Allegations
The mother raises very serious allegations against the father. The mother said that since approximately December 2014, the father has criticised her parenting and attempted to have complete control over her and the child. She said that if he thinks he is not in complete control, he becomes verbally abusive. The mother said that the father told her that she needs to be bludgeoned in the head. The mother said that the father was driving with her in the car and he sped up at a red light, which scared her.
The mother said that the father had been moaning in his sleep, appearing distressed, and at the same time covering his crotch with his hands.
The mother said that on 20 January 2015, she tried to take the child to the park and that the father blocked her exit, which resulted in a bruise to her left shoulder. That was the first occasion she called the police.
Then, as I have said, in March there was the doona incident, which I shall come back to, that being the most serious of the mother’s allegations.
Three days after the doona incident, that is on 2 April 2015, at the child’s dinner time, the father commenced playing what the mother described as violent scenes from the movie Star Wars at a very loud volume in the child’s presence. The mother informed the father that this was inappropriate. When it was the child’s bedtime and the father was reading to the child, the mother asked the father to keep the door open. She said that again the father became very angry and forced the door closed. Again, the mother rang the police, who attended.
I turn to the most serious of the allegations, this being the incident on 30 March 2015. The father agreed that there was an incident, but the parties’ accounts of the incident are very different.
Dealing, firstly, with the mother’s account, she said that on 30 March 2015, when she returned from the supermarket, she saw the father and the child on the lounge together. She said a doona covered the father’s body from his stomach to his feet. She said he had a T-shirt on. She couldn’t see the child, because he was fully under the doona. She said the father was looking at her with “a very sexual look on his face”.
The mother made a more detailed allegation about this to Dr F. Dr F reported that the mother described the father as having “a fixed sexual stare” on his face, “a frozen, traumatised, orgasmic state, very, very, unwell, staring into space.” She said she “freaked out”. The mother said the father then smiled and stared at her with a fixed gaze. She asked the father what was going on. She said that the child came out from under the doona, acting in a silly manner, and that he was not himself.
The mother said that the following day, before the child went off to pre-school, the child told her that he did not want to be collected from school by his father. The mother said that this was out of character for the child. She said she discussed this with the father. She said she took the child to school, then went to the police and reported that the father and the child had been under the doona together. The police indicated that they would report the matter to JIRT, which they did. The police suggested that the mother speak with the child about the doona incident, which she did that afternoon.
She said that the child said, “Daddy asked me to blow something up”. And she said, “What did he want you to blow up?” And she said the child laughed and became silly. The mother said that on other occasions she had asked the child what was going on under the doona and he said, “I could blow you up, mummy.” She asked how and the child said, “I would blow up your bottom, mummy.” The next day, that is 1 April 2015, when the father was taking the child to bed, the mother asked the father to leave the door open. The mother said the father refused and put his weight against the door to keep it shut. The mother said that the father became aggressive and she called the police, who attended and asked the father to leave the home, which he did.
The father’s account of the doona incident is different and is as follows. He said that when the child heard the mother coming home and coming towards the front door, the child yelled out “hide” and proceeded to jump on the couch, and pulled the doona over himself to hide. The father said that at no time was he underneath the doona with the child in his underwear.
As indicated above, JIRT became involved. On 30 July 2015, this team, represented by Detective Senior Constable M and Senior Constable N interviewed the child. There was what appears to be a somewhat limited transcript of the interview with the child. It included the following, from three minutes past 2 pm, when the interviewer showed the child a diagram of a child’s body. The questions and answers included the following:
Who touches you on the head? “Mum.”
Who touches your eyes? “No one.”
Who touches you on the boobs? “No one.”
Who touches you on the belly button? “No one.”
Who touches you on the penis? “Nobody.”
Who touches you on the hand? “Nobody.”
Who touches you on the knee? “Nobody.”
Who touches you on the toe? “Nobody.”
Who touches you on the hair? “Nobody.”
Who touches you on the bottom? “Nobody.”
Who touches you on the back? “Nobody.”
Who touches you on the bottom? “Nobody.”
Have you touched mum’s head? “I can’t reach.”
Have you touched her anywhere else? “I have touched her bottom. I have watched my mum wee and sometimes I watch my dad poo. I watched mum reach up high and she broke a glass. Dad broke the stickytape holder.”
Have you touched your dad anywhere we have mentioned? “No. Police came to the house as dad was knocking on the door. They [police] took him away. I remembered that he was wearing dark red jumper. I was in the sun getting a drink.”
Did your dad say anything to you? “Somebody said [B]. I hid in the sunroom. My mum said to. He is ill. My mum thinks so, but I don’t think that he is ill. I don’t know what he does for work. He gets aggressive. He hasn’t done anything to me.”
Do you know what Easter is? “Yes, it’s a time that we get Easter eggs. I remember that I went to sleep and then I saw the Easter Bunny in my room. I know how high he hopped. No one comes near my room. Mum sleeps in the front room with my dad, sort of. My dad sometimes does not want to go into the front room he goes into my room. Dad sleeps on the edge of the bed. He snores loudly and takes all my doona. I try to get all the doona back.”
Does your dad touch your body when you are in bed together? “No. No.”
Does any part of your body touch your dad’s? “No.”
When in bed, when dad is snoring. What are you wearing? “My pyjamas. Dad wears his pyjamas too. He wears them till midnight, or when we go to a pyjama party.
Then the transcript notes the time as 2.17 pm. And then again referring to what is presumably the same picture:
You wee with it. “I have seen my own penis but not anyone else’s. No it’s too smelly.”
Does your mum touch it? “No, she doesn’t touch it.”
Does your dad touch it?
“No. It’s spiky.”
Happy at home? “Yes.”
Ever heard anyone say to “blow something up”? A hot air balloon - a balloon. Mum asked you to blow something up? “No. Dad asked me to blow up a balloon - with a pump. I let go of the balloon and all the air was let out.
You can blow up helium balloons. But not paper.”
Have you ever touched your dad’s penis? “No.”
Have you ever blown up your dad’s penis? “No.”
Have you ever touched your dad’s penis with your hand? “No.”
And then the transcript notes that the interview concluded at 2.23 pm.
Despite all the leading questions, there is nothing from the child during this interview which reflects in any untoward way against the father.
Dr F also read the transcript of this interview and expressed the opinion that the interview did not identify any disclosure by the child.
It is clear from the documents of the Department of Family and Community Services, as indicated by Ms Karagiannis for the ICL, that as at 7 August 2015 the Department proposed to take no further action in response to the matters which were raised on 30 March.
I just raise a further matter here, although it might be slightly out of context, because I do not want to miss it. Paragraph 57 of Dr F’s report referred to a discussion between the child and his father during the interview session in which the father raised certain matters with the child, including pumping up balloons with the air pump. The father also asked the child whether he was showering properly and washing his penis. There was some cross-examination by learned counsel for the mother of Dr F about these matters. It was suggested that these were rather odd or inappropriate questions and that what the father might have been doing by such questions was trying to give the alleged behaviour a “benign context”. I think it was today that it arose in relation to the second matter, that is the showering and the washing of the penis.
But later in the proceedings it emerged that on an earlier occasion the child had been diagnosed as suffering from thrush to his penis. In those circumstances, Dr F did not agree with learned counsel for the mother that perhaps the father raising these matters during the interview was an attempt by him to justify or to vindicate the alleged behaviour. I am not persuaded to the “benign context” interpretation of the father’s questions of the child, as suggested by learned counsel for the mother.
The mother made a further allegation. She said that the child started to wet his bed which was very unusual. She said that on 4 September 2015, when the child was eating breakfast, he said, “I want to pull dad’s pants down.” The mother said she said “why”, and the child said, “I took dad’s pants off, he did a wee in the bed. I saw it. It was in the night. The wee was like a dream.” The mother said that the child repeated things like this for five minutes. She said she interpreted the child’s reference to having seen “it” as meaning he had seen his father’s penis without his father having his pants on. The mother said that the child looked at her seriously and said, “He did that”.
The mother said she then telephoned JIRT, and that they suggested that she ring the police, which she did. The mother said that after discussing the matter with the police, she understood that this allegation would also be investigated by JIRT. There is nothing before the Court at the present time to indicate that that is not the case.
I turn to consider the additional considerations, and then I shall refer to the primary considerations.
The additional considerations are set out in s 60CC(3) of the Act.
Sub-section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
About this matter Dr F said at paragraph 107:
[B] spoke positively about his living arrangements with both parents. He was missing his father and was very keen to have contact, including overnight contact. This was despite having had no contact for several months and exposure to his mother’s persistent concerns. He responded to his mother’s concerns with anxious ruminations about whether it was okay to see his father and whether his mother knew and agreed. This was seen to be a function of his mother’s overprotective behaviour, rather than a concern regarding his safety with his father. Significant weight should be given to his views that he wished to have contact with his father and paternal extended family, including overnight contact.
Sub-section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
Dr F said at paragraphs 93 and 94 as follows:
[B] was observed to have a loving and connected relationship with each of his parents. His care had been shared between his parents prior to the disruption associated with the parental separation earlier this year. He was observed to have an anxious attachment to his mother given recent events, her pre-occupation with his safety and removal from other influences including his father and pre-school. Intense, loving interactions were observed between mother and child. the child was also demanding and unreasonable in his interactions with her. His mother responded with a mixture of love and care, hyper-vigilance and over-protectiveness, exhaustion and frustration.
And then Dr F talked about his observations between the child and father at paragraph 94 and he said as follows:
Despite the fact that the child had had no contact with his father in several months, enthusiastic and loving interactions were observed. the child’s prime concern was his distress at separation from his father and the desire for the re-establishment of extended contact. He had a sense of loss in response to the absence of his father. He could not understand why this had occurred despite having been informed by his mother that this was necessary due to his father’s ill health and need for treatment. He was extremely anxious as to whether his mother agreed to his having contact with his father. This was not viewed to be due to the father’s actions as alleged by the mother.
Sub-section 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child
That is not a matter of significance.
Sub-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;
That is not a matter of significance.
Sub-section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living
Dr F denied the suggestion by counsel for the mother that to remove the child from her care and place him with his father would be “catastrophic”. He said that this was because prior to the father being excluded from the child’s life by the mother, the father had been at least a shared carer and the mother had agreed that the father played at least an equal role in the care of the child. Dr F said that the child had a shared primary attachment to them both. Dr F said that because the father has been so involved in the care of the child, and because of the child’s previous secure attachment to his father, removal of the child from his mother would be no more catastrophic than what the mother had done by stopping the child having a relationship with his father.
Having said this, Dr F agreed that the child would be very upset if he was removed from his mother. Dr F said that the father would immediately reinstate the child to school and this would reduce the child’s disruption.
Sub-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.
To some extent, this is covered in other observations that I make.
Sub-section 60CC(3)(f) – the capacity of each of the child’s parents and 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.
This matter is important. Dr F said at paragraph 98:
The mother’s parenting capacity was impaired given her current pre-occupations. Her hyper-vigilance associated with her deeply held belief that [the child] was unsafe had disrupted her capacity to provide for [the child’s] emotional and intellectual needs. She had ensured he was safe by removing all contact with his father, discontinuing his attendance at pre-school and local outings, such as to Bicentennial Park. Despite her protests, it was evident that her insecurity and concerns for his welfare had been shared with [the child]. This had disrupted his previous positive developmental path and created feelings of insecurity. Under these circumstances, it was not possible for her to provide balanced and effective parenting.
And then at paragraph 102 Dr F said as follows:
The mother’s mental state was highly concerning. She presented as a high functioning and intellectually gifted individual, who had focused her considerable intellectual energy on her belief that [the child] was at risk as he had been sexually abused or was going to be sexually abused by his father. This pre-occupation was, in part, driven by her obsessive compulsive personality structure. Just as she had the capacity to focus on academic tasks to produce a PhD, scholarly articles, books and maintain a senior academic role, this year she had focused on evidence to support her view that [the child] was unsafe.
She was unable to consider any alternative to her conclusions. This had the features of an over-valued idea and was held with delusional intensity. This was suggestive of a delusional disorder. No other psychotic phenomenology were identified during the assessment but the father alleged that there had been a distinct change in the mother’s mental state. This was observed by the father, the maternal grandmother, the pre-school teacher and was evident on mental state examination. The mother remained unshakeable in her view when challenged.
The mother insisted that she did not require psychological assistance and was strongly opposed to medication. She indicated that she was motivated to pursue ongoing treatment with [Dr J] and took exception to the telephone feedback that this was inappropriate as he was a first-year general practitioner registrar (trainee) on six-monthly rotations. She was advised that she should make an appointment to see [Dr K] and that she should provide sole medical advice for herself and the child.
When advised by telephone, the mother became agitated; this set in train a detailed accurate recount of the assessment, the report writer’s role and previous discussion. She resented being informed to pursue further intervention. Further, she informed ([Dr F]) that she was planning to see a different doctor to ensure that [the child] should be referred to (a) different psychologist for therapeutic intervention. This was based on feedback from the Police following her most recent allegations. This occurred following the assessment. It was evident that she was unable to hear [the child’s] categorical wishes, declarations of his love and evident safety in the care of his father. This highlighted the mother’s lack of insight. Given this, there is almost no possibility of her pre-occupations resolving without a psychopharmacological intervention.
And then in the report Dr F set out what his recommended medication would be and, today, during the course of his cross-examination, he gave details of his recommended medication and the symptoms and matters which he said such medications would address.
I note also counsel for the mother’s submission that the mother had been referred to the Suburb L mental health team on two occasions and that there had been no adverse assessment. Although I also note that Dr F, to some extent, took exception with counsel’s submission about the results of the later assessment by the team.
In relation to the father’s capacity, paragraph 99 of Dr F’s report was as follows:
The father had prioritised [the child’s] developmental needs over the years. He had established stable and effective routines. He had prioritised [the child’s] attendance at pre-school and appropriate interactions with his extended family. He was seen to be a loving and committed father who was extremely frustrated and distressed, given the obstruction to his contact with his son.
And at paragraph 103 Dr F said:
The father had experienced an adjustment disorder with depressed and anxious mood precipitated by the removal of contact with his son. He expressed a wide range of concerns with regard to his son’s welfare. This was viewed as an understandable reaction to such circumstances. His frustration with the tardiness of the Court process and the legal and police interventions to date was understandable. This was regarded to be within the normal range of experience. He would benefit from ongoing psychological support.
And then at paragraph 114:
The father was supportive of the mother’s contact with [the child] provided that she had a normal mental state and was able to sustain an appropriate shared care arrangement, including [the child’s] attendance at school.
I also note there were criticisms by counsel for the mother that Dr F did not fully consider all the matters relevant to the father’s family history. I shall speak briefly about this again below, but I do not regard such as seriously detracting from Dr F’s assessment of the father.
Sub-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.
About this Dr F noted at paragraph 105:
[B] was seen to be a bright, enthusiastic, playful and engaged boy about to turn five. It was evident that over the years his developmental needs had been prioritised. He had been enthusiastic about all aspects of his life experience. It had thus, been distressing that his contact with his father, pre-school and friends had been restricted by his mother.
Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child, the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant matter.
Sub-section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
At paragraph 111 Dr F said:
The mother had exclusively focused on her need to protect in the context of her conviction that the child was unsafe. This interfered with her ability to support his attendance at pre-school and other local activities. Beyond this, she was seen to have prioritised the responsibilities of parenthood. The father was seen to have prioritised the responsibility of parenthood. He had a loving and caring attitude to the child. He was frustrated and distressed that this had been obstructed by the mother.
Sub-section 60CC(3)(j) – any family violence involving the child or a member of the child's family; Sub-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 nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and any other relevant matter.
I note, in respect of these matters, that an interim apprehended domestic violence order had issued and my understanding is that that order is still current. Both parties have referred to the progress of those proceedings in the Local Court, and the proceedings have still not yet been finalised.
Sub-section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
I note these are interim proceedings. As I have said, there are substantive proceedings between the parties and whatever interim orders are made, those proceedings will be ongoing and will need to be addressed.
Sub-section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant
At paragraph 116, Dr F said:
The situation identified warrants immediate intervention. Unless there is convincing evidence to support the mother’s view that [the child] has been sexually abused by the father (beyond the extensive documentation perused), I would recommend that [the child] immediately be placed in his father’s care. He confirmed that he has the immediate capacity to provide appropriate accommodation and care for [the child]. This will enable his re-attendance at pre-school and engagement in normal family activities.
His contact with his mother should be contingent on her ability to not interrogate him with regard to his safety and to not present him to multiple health practitioners and counsellors. I would recommend that [the child] attend [Suburb E] Family Medical Practice for all his medical needs. [Dr K] was identified as an appropriate first contact for all of the family medical needs.
Primary Considerations
I return to the primary considerations. Clearly, the child has a meaningful relationship with each of his parents which Dr F described as “a loving and connected relationship with each...”. It would be to the child’s benefit to be able to continue his meaningful relationship with each of his parents. But this has to be weighed against the second primary consideration, as I have referred to it, and this is the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. Dr F has said that the mother’s deeply held belief that the child is unsafe and her associated hyper vigilance has disrupted the child’s previous positive developmental path and created feelings of insecurity in him.
The consequences of this have been that he has not been attending pre-school, not having any contact with his father and having only some limited outings. These are fundamental needs which the mother has not been fulfilling for the child. Dr F said that the mother has been unable to provide for the child’s emotional and intellectual needs. These are serious matters and contrary to the child’s best interests.
Conclusion
The close and loving relationship between the child and his father has not been able to be enjoyed by the child now for some months because the mother has acted to exclude the child from any contact with his father.
The mother has made very serious allegations against the father. The major allegation, as I have said, being that he has acted towards the child in a sexual manner. I have referred in detail to what has been alleged. Although these are interim proceedings and the Court is unable to make findings, as has been said, the onus is on the mother to establish a case which would enable the Court to satisfy itself that to place the child in the care of his father would expose him to an unacceptable risk of sexual abuse. In my view, the matters alleged by the mother fall well short of what would be required for the Court to arrive at such a position. I am not persuaded that for the child to be in the unsupervised care of his father would expose him to an unacceptable risk of sexual abuse or abuse otherwise.
On the other hand, the mother has acted, admittedly in what Dr F described as a state of “hypervigilance associated with her deeply held belief that the child was unsafe” so as to prevent the child having any opportunity to maintain and develop his close relationship with his father. Dr F said that this is clearly contrary to the child’s emotional and intellectual needs as I have said.
This has happened notwithstanding the fact that previously the parties had a shared care parenting arrangement for the child and notwithstanding the making of specific orders by this Court on 24 June 2015 for the child to be able to enjoy regular significant and substantial time with his father. Not only has the child not been able to have a relationship with his father, but such has been the level of the mother’s anxiety about keeping him safe from her perceived threat of the father, that the mother has kept the child from his pre-school. The child’s teacher and staff at the school have expressed concern for the child’s wellbeing.
As indicated above, Dr F has expressed the opinion that the mother’s behaviour suggests that she has a delusional disorder and that this has, in effect, made her incapable of being able to appropriately parent the child.
It is the case that learned counsel for the mother, in a most capable manner, brought out a number of factual errors in Dr F’s report and the matter which I have already referred to. This was the alerting of Dr F to shortcomings in him considering the full significance about certain alleged behaviours by the father’s brother and the relevance of these in the context of forming a view about the father’s state of mental health.
But notwithstanding these matters, in my view, the essential opinion of Dr F remains and this is his opinion about the mother’s state of mental health and serious problems associated with her parenting capacity.
Dr F said that in the event that the Court was to place the child into the mother’s care the risk would be that the child would not have any appropriate opportunity to develop his relationship with his father. He said that this was because the mother had made it very clear that she was not prepared to abide by previous court orders and that she has a strong view that if the child was to be placed in the father’s care unsupervised she would not allow this to occur.
With respect to the strong submission that the father might not be able to facilitate and encourage a relationship between the mother and the child, I am not persuaded to this view.
In my view, the best interests of the child require the change of residence.
Parental Responsibility
That takes me to the issue of parental responsibility. In my view, clearly, if the child is going to be in the care of his father pending further order, and given the conflict and lack of co-operation between the parents, sole parental responsibility to reflect the best interests of the child should be in his father.
Time With Mother
That then leaves for consideration what is to be put in place in relation to opportunity for the child to have his relationship with his mother.
Stay
In relation to the stay application I note that notwithstanding the very late hour of the day and with a view to trying to avoid the parties’ further litigation in respect of the immediate matter, I gave the mother leave to make an oral application for a stay. This was on the basis that learned counsel for the mother indicated that upon the Court’s reasons being available in hard form the mother would wish to lodge an appeal against the orders made today.
In support of the application it was submitted that what the orders of the Court have brought about is a change in the long-standing arrangement of care of this child by his mother and that the Court should act extremely cautiously in the circumstances.
It was submitted that the Court could not be confident about the parenting capacity of the child’s father or at least his capacity to be able to do it alone because that is almost wholly untested. Significantly it was submitted that there remains an outstanding serious allegation which was the allegation about the mother alleging that the child had made statements about wanting to pull dad’s pants down. Although that matter had been referred to in paragraph 8 of Dr F’s report as submitted by Ms Karagiannis for the ICL, Ms Boyle submitted that there appears still to be some outstanding investigation about that matter.
The mother said in her evidence that she had raised the matter with the Police and that she understood from her conversations with the Police or perhaps even with JIRT, that that investigation is ongoing. I accept for the purpose of these proceedings that there may well be an outstanding aspect to that and, indeed, it is possible that there might be an interview of the child in relation to that specific allegation. But there is certainly nothing before the Court at the present time to indicate that that matter is closed.
The application for stay of the orders is opposed both by the father and by the ICL. It was said by Mr Schonell for the father that it is not the case, and the Court could not find, in view especially of the Reasons given and the considerations that the Court has addressed, that the Court would regard the father as not being able to provide for the child. Ms Karagiannis for the ICL, as I say, is opposed to the stay application.
The law which governs stay applications in parenting cases is set out in the well-known cases including the very old case of Clemett & Clemett (1981) FLC 91-013. The fundamental consideration is the best interests of the child. Clearly the Court has to address its mind to the other relevant aspects. Amongst those is the likely success of the appeal. That is always a matter that is difficult for the Court to determine but I have endeavoured to address what I understand as a matter of law are the required matters.
It is the case that in the event that the stay is not granted, in a sense, the mother’s appeal would be rendered nugatory because the child would go immediately into his father’s care. But this has to be considered in the context that the mother continues to hold a very strong belief that the father is a danger to the child and is flatly opposed to the possibility that the best interests of the child would be served by being in his father’s care.
I return to the fundamental consideration which is the best interests of the child. For the reasons that I have already indicated, in my view, at the immediate time, the best interests of the child will be served by the orders that I have made. Accordingly, I propose to dismiss the application for a stay.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 24 September 2015.
Associate:
Date: 28 October 2015
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