Diggins & Rushton
[2021] FedCFamC1F 322
•20 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
Diggins & Rushton [2021] FedCFamC1F 322
File number(s): BRC 553 of 2018 Judgment of: HOGAN J Date of Orders: 17 December 2021 Date of Reasons: 20 December 2021 Catchwords: FAMILY LAW – PARENTING – Unacceptable risk of harm. Legislation: Family Law Act 1975 (Cth) Cases cited: A v A (1998) FLC 92-800; [1998] FamCA 25
Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Bant & Clayton (2019) FLC 93-924; [2019] FamCAFC 198
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Cox v Pedrana (2013) FLC 93-537; [2013] FamCAFC 48
M v M (1988) 166 CLR 69; [1988] HCA 68
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Morden & Coad [2019] FamCAFC 233
N and S and the Separate Representative (1996) FLC
92-655; [1995] FamCA 139U v U (2002) 211 CLR 238; [2002] HCA 36
Vigano & Desmond (2012) FLC 93-509; [2012] FamCAFC 79
Number of paragraphs: 504 Date of hearing: 2, 3, 6, 7 & 8 September 2021 Place: Brisbane Counsel for the Applicant: Ms Guo Solicitor for the Applicant: Trianon Law Counsel for the Respondent: Mr Galloway Solicitor for the Respondent: HCM Legal Counsel for the Independent Children's Lawyer: Ms Oakley Solicitor for the Independent Children's Lawyer: Pippa Colman & Associates ORDERS
BRC 553 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DIGGINS
Applicant
AND: MR RUSHTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
17 DECEMBER 2021
IT IS ORDERED BY WAY OF FINAL ORDER THAT:
1.All parenting plans and previous parenting orders are discharged.
2.The child, X, born on … 2015, live with the father.
3.
The father have sole parental responsibility for the child in respect of all major
long-term issues (as that expression is defined in the Family Law Act 1975 (Cth)).
4.The child shall spend no time with the mother for a period of four (4) weeks from the date of these orders.
5.Following the expiry of the period of four (4) weeks from the date of these orders, the child shall spend supervised time with the mother as may be agreed between the parents and failing agreement follows:
(a)on one occasion per month at a Contact Centre closest to the child’s residence; and
(b)on one occasion per month:
(i)should the mother remain residing in the B Region: at the D Contact Centre at Suburb C; or
(ii)should the mother relocate to a location that is closer in distance to the Contact Centre closest to the child’s residence than it is to the D Contact Centre at Suburb C: at the Contact Centre closest to the child’s residence; and
(c)the costs of either or both contact centre/s shall be shared equally by the parents.
6.For the purpose of order 5:
(a)within seven (7) days of the date of these orders, the father shall:
(i)register with the Contact Centre closest to where the child will be residing with him and, if necessary, the D Contact Centre at Suburb C; and
(ii)provide confirmation of registration in writing to the mother; and
(b)within seven (7) days of receiving written confirmation of registration from the father, the mother shall:
(i)register with the Contact Centre closest to where the child will be residing with the father which the father registered at and, if necessary, the D Contact Centre at Suburb C; and
(ii)provide confirmation of such registration in writing to the father; and
(c)upon the parties receiving notice from either or both contact centres of an available intake appointment, if one is required, each party shall ensure they attend that nominated intake appointment; and
(d)upon the parties receiving notice from either or both contact centres of a time available for the child to spend time with the mother, the father shall ensure that the child attends at either or both contact centres on the dates and at the times nominated.
7.Following the expiry of the period of four (4) weeks from the date of these orders, the child shall communicate with the mother as follows:
(a)by video call each Wednesday between 5.30 pm to 6.00 pm, with the same to be supervised by the father or a person nominated by him; and
(b)by video call between 5.30 pm to 6.00 pm on the child’s birthday, mother’s birthday, Christmas Day and Mother’s Day, with the same to be supervised by the father or a person nominated by him.
8.In order to facilitate the child’s communication with the mother:
(a)the mother shall initiate the communication; and
(b)the father shall make the child available to receive the communication; and
(c)if, for any unforeseen circumstance, the child misses the communication from the mother – the father shall arrange for the child to contact the mother on the following night.
9.The mother shall be at liberty to send gifts to the child to an address nominated by the father for special occasions, including the child’s birthday, Easter, Christmas and significant milestones such as graduation.
10.For the purpose of order 9:
(a)within fourteen (14) days of the date of these orders, the father shall notify the mother in writing of the address or PO Box to which the mother can send the gifts; and
(b)the father shall ensure such gifts are provided to the child on the day of such special occasion.
11.During the time the child spends time with or communicates with the mother, the mother shall:
(a)respect the privacy of the father and not question the child about his personal life; and
(b)speak of the father respectfully; and
(c)not denigrate or insult the father in the presence or hearing of the child and shall use her best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
12.Each parent shall keep the other parent informed at all times of a contact telephone number and an email address and shall notify the other as to any change in those details as soon as practicable after such change and no later than after forty-eight (48) hours of the same.
13.Save for in therapeutic counselling, neither parent shall discuss these proceedings, nor the allegations made in them, with the child, nor involve the child in any discussions regarding any issue in dispute between them and each parent shall take all reasonable steps to remove the child from any such discussion if instituted by any third party.
14.Save for the purpose of obtaining legal advice, the mother is restrained and an injunction issued pursuant to s 68B of the Family Law Act 1975 (Cth) from publishing or disseminating by any means, or requesting or causing a third party to publish or disseminate, any material or information the subject of these proceedings, or in relation to the father or the child.
15.The father shall forthwith make arrangements for the child to engage in counselling.
16.Each parent and the Independent Children’s Lawyer has leave to provide a copy of the Family Report of Ms E filed 17 December 2020, the Order made 17 December 2021 and the Reasons for Judgment published in support of the same to the school at which the child attends, to any therapist upon whom the parents and/or the child attend for the purpose of therapy and to the Department of Children, Youth Justice and Multicultural Affairs (by whatever name the Queensland Department is then known), the authority of any State or Territory responsible for child protection and, if necessary, to any member of the Queensland Police Service, the police service of another State or Territory and the Australian Federal Police.
17.Save as is otherwise ordered herein, no party is permitted to use the documents provided to them in the course of this proceeding for any purpose other than this proceeding or any appeal in respect of these Orders.
18.The Independent Children’s Lawyer is discharged unless a Notice of Appeal is filed by any party within the time prescribed or such other time as allowed by Order.
AND IT IS FURTHER ORDERED THAT
19.All outstanding parenting applications are otherwise dismissed and removed from the list of cases requiring finalisation.
20.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Diggins & Rushton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J:
Six year old X was born in 2015. Her parents only lived together for about 14 months (between about 25 November 2014 and no later than 25 January 2016); she was about three months of age when they separated.
Whilst each of X’s parents’ proposals for her future parenting regime will be discussed in more detail below, it suffices at this stage of these Reasons to note that her father proposes that she should move to live primarily with him, whilst her mother proposes that she should remain living primarily with her.
The current living and other relevant arrangements
X, who is her mother’s only child, currently lives with her mother in the B Region. She attended Prep at F School this year and will start Grade 1 in January 2022.
The father and Ms G, his partner of some five years,[1] both have now-adult children from previous relationships. They now live in H Town – at an address they would prefer not to disclose to the mother because of her asserted behaviours toward them.
[1] And with whom he has lived since 2016.
On 15 April 2019, a Protection Order was made in the father’s favour. By its terms, the mother must be of good behaviour toward the father, must not commit an act of domestic violence against him and is prohibited from using the internet or another device to publish or make comments about the father. The order is operative up to and including 14 April 2024.
The competing proposals
The father
When interviewed by Ms E in November 2020, the father’s interim proposal included that X live with him; he have sole parental responsibility for major long-term decisions relating to her; that he and X engage with a therapist nominated by the Independent Children’s Lawyer and that he follow the recommendations of such therapist. He also sought that the mother be restrained from: attending at X’s school or childcare centre; approaching him or X; and making complaints to third parties without leave of the Court or the consent of the Independent Children’s Lawyer. He proposed that X spend time with the mother as the Court determined.
Ms E noted that the father told her that, whilst he had been happy with the terms of the December 2019 consent orders, he considered the mother had shown that she was unable to co-parent with him and continued to harm X emotionally through involving her in making false allegations against him, such that it was in X’s best interests to move to live with him and spend time with the mother in the manner ordered by the Court.
At trial, the father proposed[2] that orders be made for X to live with him and spend time with her mother as the Court deemed fit. He also proposed that he be accorded sole parental responsibility for major long-term decisions relating to X; that various injunctions be made to restrain the mother from approaching or being on his premises and X’s school and from approaching him and X other than for the purpose of complying with the parenting orders. He also suggested that the mother be restrained from:
(a)providing any documents or copies of the same that have been filed, produced or tendered in the proceedings to any Court, tribunal, agency or third party other than a legal representative, without first obtaining leave of the Court; and
(b)making any communication or making any complaints to any third party about any allegation of sexual and/or physical abuse without leave of the Court or the consent of the Independent Children’s Lawyer.
[2] Amended Response to Initiating Application filed 15 July 2021.
The father’s case is, in essence, that the mother has psychologically or emotionally abused X by exposing her to, and seeking to enjoin her in, her belief that he has sexually abused her and harmed her physically, psychologically and emotionally and that, consequently, X will be at an unacceptable risk of harm if she continues to live with her mother or have unsupervised time or communications with her.
The mother
When interviewed by Ms E in November 2020, the mother’s interim proposal was that: X live with her and spend supervised time with her father at a Contact Centre; she have sole parental responsibility for major long-term decisions relating to X; and the father undertake random drug and alcohol testing at her expense. She also sought that the father pay X’s childcare fees and proposed that X’s paternal grandmother, cousins and aunt only have contact with X once each month for three hours, via third party supervision.
Ms E noted that the mother’s position was that, if it was identified that X was at risk of harm in the father’s care due to him having sexually abused her, X should spend only supervised time with him; if, however, the concerns about sexual abuse of X by the father were not substantiated, then X should spend time with him each alternate weekend from Saturday morning until Sunday afternoon and for half of all school and public holidays.
In a dramatic change of position, the mother, by her Amended Initiating Application filed 1 July 2021, proposed that she and the father have equal shared parental responsibility for the major long-term issues relating to X, that X live with her and spend time with her father:
(a)during school term: from after school or 3.00 pm Friday until before school or 9.00 am Monday (if the father lived more than 50 kilometres from F School) or from after school or 3.00 pm on Thursday until before school or 9.00 am on Tuesday (if the father lived less than 50 kilometres from F School); and
(b)for half of the gazetted school holidays (including for a block of 14 consecutive nights during the December/January school holidays in each year); and
(c)on particularised “special” or celebratory days, including Christmas and Boxing days and the weekend of Father’s Day.
By the Amended Initiating Application, the mother also proposed that:[3] changeovers occur at school or, if on a non-school day, at the McDonald’s Restaurant at Suburb J or at such other location as agreed in writing between the parents; X communicate with the parent with whom she was not living at all reasonable times; she (the mother) be able to contact X on her mobile telephone each alternate night when she is in her father’s care; X completes her primary schooling at F School and later be enrolled to attend a school in the catchment area where the mother lives.
[3] In addition to various other orders, as particularised, which were also sought.
Whilst Counsel for the mother confirmed, at the start of the trial, that the mother’s position was as outlined in the Amended Initiating Application and, when specifically asked (given the terms of the orders sought by the mother), also confirmed that it must be accepted that there was nothing in the father’s parenting that would present a risk to X, these ostensible dramatic changes did not withstand the mother’s cross-examination.
The mother’s true position was revealed, finally, on the second day of the trial when she finally said that she did not think it was in X’s best interests to have unsupervised time or any relationship at all with her father. Having said this, she then said that she really was happy for X to have a relationship with her father “supervised” and that the case she really wanted to run was that X should live with her and spend only supervised time with her father. She also confirmed that, despite what had been said on her behalf at the start of the trial, she did in fact seek findings that X would be at an unacceptable risk of suffering sexual harm, being exposed to family violence and stalking and being killed by her father if her future time with him was unsupervised.
Despite the content of the Amended Initiating Application, the mother’s evidence, when
cross-examined, was replete with her assertions and concerns that X is at risk of being sexually, physically and psychologically abused in her father’s care and that the father presents an unacceptable risk of causing X to suffer emotional harm – including because she thinks it is possible that, for his own benefit in this litigation, he may have coached X to tell her (the mother), falsely, that he has sexually abused and harmed her.
When re-examined by her own Counsel, the mother confirmed the orders she sought (namely, that X live with her; she have sole parental responsibility; and X spend only supervised time with her father) and informed that, whilst she did not mind the paternal aunt (Ms K) being the supervisor of X’s time with her father “[a]s long as she is not saying anything mentally derogative about me”, she opposed the paternal grandmother and Ms G fulfilling that role: her evidence included that she thought that X may be exposed to risk of harm if a family member other than the paternal grandmother or Ms G was not present during X’s time with her father.
The mother’s evidence included that, if orders were made for X to live with her father, she would move to live in H Town in order to be able to spend time with her. In this scenario, she sought that X live in an equal-time parenting regime or spend as much time with her as she could possibly obtain, but no less than every alternate weekend and half of the school holidays.
The Independent Children’s Lawyer
The Independent Children’s Lawyer supported the father’s position that it is in X’s best interests to live primarily with him; she sought orders in terms of the Minute of Order provided by Counsel on 8 September 2021.
The Independent Children’s Lawyer’s alternative submission was that, if X remained living with her mother, her best interests would be served by an order which prescribed that she have no time or communication with her father.
Parental credit
The mother
There is much force in the submissions made by Counsel for the father and Counsel for the Independent Children’s Lawyer about the manner in which I should regard the mother’s evidence. In particular, I accept that she was completely disingenuous in her attempt to persuade the Court, via the contents of the Amended Initiating Application filed 1 July 2021 and her Case Outline filed 1 September 2021, that her real proposal for X’s future included her spending unsupervised alternate weekends and half of the school holidays in her father’s care.
I accept that the purpose of the mother’s affidavit filed 31 August 2021 was to assuage any concerns the Court might have that, having repeated all of the earlier allegations which had been relied on as providing the basis for only supervised-time orders being made, there was no evidence to explain the mother’s purported change of position to supporting unsupervised time between X and her father.
I consider that the mother was deliberately evasive and frequently non-responsive to the questions asked of her when she was cross-examined, particularly during that part of her
cross-examination which preceded her admission, on Friday afternoon, that her true case was that any time X spends with her father in the future should be supervised. I consider the mother took every opportunity to say what she wanted to say rather than answer the questions asked of her; I do not accept that her lack of responsiveness on many occasions to the questions asked of her was because she did not understand what she was being asked – rather, I consider that she often fully appreciated the import of the questions asked and, instead, deliberately answered them in the way that she decided was appropriate.
I also consider that, on occasion, she deliberately gave evidence in an attempt to persuade that, in taking the action she had – for example, in seeking that X undergo multiple internal genital examinations despite having not seen her father for some time at the relevant time – she had acted without fully appreciating what, for X, would have been involved in undergoing such examinations: in this respect, I note the mother’s initial assertion that she “didn’t understand what an internal examination truly was” before accepting that she understood completely what the word “internal” meant in this context (namely, that it would have involved something being inserted into X’s body). Whilst it may well have been that the mother had not then had the intricacies of what was involved in having a child of X’s age internally examined described to her, I simply do not accept the contention that she did not understand what such an examination of X’s genitalia would generally have involved.
I consider that, in her attempt to persuade the Court that her position about the manner in which X should spend time with her father had truly changed and that she was supportive of them spending regular, unsupervised time together, the mother deliberately lied:
(a)when she said, in her affidavit filed 17 August 2021, that she was satisfied that X’s disclosures have been investigated and are unsubstantiated and that she was relieved that the Department of Children, Youth Justice and Multicultural Affairs (“the Department”) had found that both she and the father have “low risk” households;[4] and
[4] Affidavit of the mother filed 17 August 2021, paragraphs 332 and 334.
(b)when she asserted, in her affidavit filed 31 August 2021, that:
(i)she was hopeful that, going forward, she and the father could share the care of X;[5] and
[5] Affidavit of the mother filed 31 August 2021, paragraph 19.
(ii)“To be clear, I no longer seek to rely on X’s disclosures to me and to [the maternal grandmother] as a basis to prevent X from spending time with Mr Rushton or to deny Mr Rushton the opportunity to share in the decision-making for X into the future”;[6] and
[6] Affidavit of the mother filed 31 August 2021, paragraph 13.
(iii)“I accept that Mr Rushton may choose to attend X’s school on occasions where parents are invited to witness and interact with children, at end of school activities, and I do not oppose Mr Rushton participating in those events even though they may be out of X’s time with Mr Rushton”.[7]
[7] Affidavit of the mother filed 31 August 2021, paragraph 13.
(c)when she said during her cross-examination – after asserting that she did not know whether the father was a paedophile, money launderer or drug cultivator – that she was not at all anxious about orders being made along the lines she had sought in her Case Outline filed 1 September 2021 and her Amended Initiating Application filed 1 July 2021; and
(d)when she said – after saying that she believed X when she alleged X had told her that the father had inserted his fingers into her anal canal and vagina between January 2020 and March 2020 – that she could ask the Court for an order that X spend time with her father because investigations by the police and the Department had resulted in findings that the assertion was unsubstantiated and unfounded and Ms E (who had authored the Family Report) had proclaimed X to be safe and that, as they were all experts, she had to go with this as there were no findings adverse to the father; and
(e)when she said – after saying, in essence, that she accepted and believed X’s asserted disclosures that her father had taken her out of the house on the first night she stayed overnight in his care and had touched her genitals and that X had been truthful when she allegedly told her about this – that she could propose that the child spend five nights a fortnight and half of the holidays with her father because, in essence, the police investigation had revealed nothing, the Department had been blaming her for parental alienation of X and Ms E had said that there was no risk factor associated with X spending time with her father, such that she had to “run with the circumstance evidence”; and
(f)when she said – after saying, in essence, that as recently as July 2020 she believed that the father would act positively and deliberately to kill X (as opposed to accidentally, negligently or recklessly because he is a hopeless parent) – that she could propose that X spend five nights a fortnight and half of the holidays with her father; and
(g)when she said that, despite X having made the disclosures to her (about the father’s alleged behaviour toward her) about which she had given evidence, that she had no thoughts at all about the source of a pubic hair she said she had discovered on X’s bottom; and
(h)when she denied the suggestion that the terms of the Amended Initiating Application represented a radical departure from her earlier position; and
(i)when she said, during her cross-examination, that she wanted the Court to find that she and the father could have a harmonious family relationship and that X could flourish with both parents supporting each other and working together; and
(j)when she confirmed, at the start of the cross-examination of her by Counsel for the Independent Children’s Lawyer, that she did not seek a finding that the father presented an unacceptable risk to X, either because he had sexually abused her or because she was at risk of being psychologically abused by him and asserted that, whilst she believed that last year, everything was different this year and, later, that “due to the evidence”, she did not now believe that X was at risk of sexual harm in her father’s care; and
(k)when she denied the suggestion that her “new case” (that is, her case that X’s best interests would be met by continuing to live with her and spend unsupervised alternate weekend and half-holiday time with her father) was a posture designed to escape the risk that the Court would be persuaded by that part of Ms E’S report which asserted that: “if [the mother’s] behaviours continue and she engages in what has been identified as alienating behaviours against [the father], she will cause significant emotional and psychological harm to X and a change of residence, in my view, to her father’s care will need to be considered by the Court”;[8] and
(l)when she said, during her re-examination by her Counsel, that the reason for her change in position from what was contained in, for example, the Amended Initiating Application to the position expressed during her cross-examination was because the cross-examination had brought up a lot of past memories.
[8] Family Report prepared by Ms E dated 16 December 2020, paragraph 156.
The following provide further examples of the mother’s dishonesty.
Having accepted that her sister (Ms L) had been involved in asking X questions about her asserted abuse by her father, the mother said that she had not asked her to do this and that: she had not knowingly permitted her sister to question X about this issue; her sister had acted independently of her and that, before her sister had questioned X, she had not known she was going to do so. However, such assertions are, it seems to me, completely contradicted by the information the mother provided to Ms M (the manager of X’s childcare) on 28 May 2020, when I accept she said that:
I need [X] to talk, Ms M, Ms L is going to gently discuss things with her to get more disclosures, shes a nurse now, because if we don’t get the evidence we can’t stop this, we have to unite and push back together.
(As per the original)
I note that, when faced with this information, the mother accepted that she had known that her sister was going to ask X questions about the abuse she had allegedly suffered at her father’s hands. This evidence contradicts that given by Ms L, who asserted that there had been no occasion on which the mother had asked her to speak to X to try and get disclosures from her. Given that, when she spoke to Ms M, the mother thought she was speaking to someone she could trust, I think it much more likely that she told Ms M the truth and that Ms L was not truthful in her evidence about this issue.
When asked, during her cross-examination by Counsel for the Independent Children’s Lawyer whether she had ever held a concern that the father had some child (I infer “sex”) sites on his computer, the mother’s first answer was “not his computer, just other concerns”; however, this answer was contradictory to the contents of her affidavit: “I’m concerned that Mr Rushton had, or has, some child sites on his computer”.[9]
[9] Affidavit of the mother filed 29 January 2019, paragraph 46.
Given that I accept that the mother has complained to the relevant Minister about the police and Departmental investigations into the complaints made against the father, her evidence to the effect that:
(a)she has accepted that the investigations had been undertaken by experts; and
(b)given this, she has accepted their assessments and conclusions,
was simply untrue.
I also consider her evidence that she had allegedly been told by a serving police officer (attached to “Police Team AG”) that they had a search warrant that they were going to execute on the father to be highly unlikely to be true.
Further, when first asked about the father being able to choose to attend at X’s school on occasions and about her evidence that she did not oppose him participating in events at school (even though they may occur at times outside of X’s ordered time with him), the mother said she was being truthful in advancing these propositions, albeit that it appeared to rest on her assertion that X has a nice relationship with Ms G and gets excited to see her with her father; however, the mother later accepted that it was not true when she spoke about accepting that the father might choose to attend school activities and not opposing his participation in events at school.
Given that I accept that the mother has not spoken personally to the Commissioner of Police for Queensland (“the Commissioner”) about the allegations in this matter, it is clear that she lied when she told Ms M on 2 July 2020 that she had. A good example of the difficulties associated with determining whether the information provided by the mother is truthful and accurate can be seen in her response to being challenged that she had told people she had spoken to the Commissioner: she said, in essence, that she had “spoken to him as in…writing”.
A further example of the difficulties associated in assessing the mother’s evidence can be found in her answers to questions about whether she thought it was intrusive for her to record X’s telephone calls with her father: she first said she did not think it was, because “I get into a lot of trouble, and Mr Rushton tries to get me into a lot of trouble”; she then accepted that it was intrusive – before returning to her original position that she did not think it was intrusive for her to record the calls, on the basis that “I’m tired of being in trouble”.
Additionally, I note that, when she was first cross-examined about her comment to Ms M on 2 July 2020 that “he’s going to kill her Ms M”, the mother’s evidence was, in effect, that her intention had been to convey that the father might accidentally harm X; however, I consider it unequivocally established in her later cross-examination that this was simply not the case and that she had intended to convey her belief that the father would intentionally kill (i.e. murder) X and try to suggest that it was an accident because she had been using her knife to eat from.
Further, when the mother was first asked whether she had ever spoken to anyone within “Police Team AG” (as she reported to the police on 24 January 2020), the mother initially said that she had spoken to them twice, to two female officers; however, when she was asked if that was “[d]irectly to members of Police Team AG”, she then said “I can’t clarify that because when you ring up you’re not quite sure who you’re speaking to”. Whilst she initially said that she had been told by someone from “Police Team AG”, that they had a search warrant that they were going to execute on the father or that they would be issuing a warrant soon, her later evidence included that she had spoken to a police officer in N Town and he was the one who gave the information she had provided to “Police Team AG”; she also said he had later told her that there was not enough information to obtain a search warrant, because the eight IP addresses she had supplied to him had come back “clean”.
The father
I accept that, in an affidavit filed in the Magistrates Court, the father’s evidence included that the parents’ de facto relationship was from 20 September 2014 to 25 January 2016, whereas his evidence in these proceedings was that their relationship ended on 8 or 9 January 2016.
When cross-examined about this discrepancy, the father said that, when he told his previous solicitor, who had prepared the affidavit, that that date was wrong, he was asked, in essence, “[w]hat’s it matter?” I accept his evidence that he accepted this.
The discrepancy in the evidence given by the father about the date on which the parents’ de facto relationship ended does not persuade me that his evidence in these proceedings, including his consistent denials of any suggestion that he has acted in any way that is abusive of X, is false.
Conclusions about parental credit
Given the findings outlined above, where the evidence given by the father and the mother conflict, I accept that given by the father in preference to that given by the mother unless I indicate otherwise.
The evidence of other witnesses
The evidence of Ms L (the maternal aunt)
I accept that Ms L has some pretty negative opinions of the father and his family and that she does not have a kind word to say about the father; her view is that she has never seen him show any good qualities. She said she had never heard X say anything affectionate or nice about her father and had never heard the mother tell X, at any time in her life, anything like that her father loved her.
As already noted, I consider that Ms L was untruthful when she said her sister had not asked her to talk to X to attempt to obtain disclosures from her. Whilst this conclusion casts significant doubt on her evidence generally, I accept her evidence that:
(a)the mother had never told her in 2021 that she had changed her views about the risk she asserted the father presented to X; and
(b)she understood the mother’s views to be that she still regarded the father as a person who may harm X.
I also accept Ms L’s evidence that the father has never behaved in an inappropriate way around her children.
An appreciation of the difficulty in accepting other aspects of Ms L’s evidence, or according weight to the same, can, I think, be gained by having regard to the following.
I consider that the answers she gave when cross-examined established that Ms L had reached her asserted existing belief that the father used and sold drugs to fund his lifestyle (which she said she “100 per cent” believed) on only the following:
(a)during the parental relationship, the father had wanted to go to Country AC and take the mother with him; and
(b)the father’s flatmate was a public servant based in Country AC; and
(c)there had been a large drug arrest in Country AC and a programme about the drug trade said to be occurring in Country AC had been shown on television; and
(d)she had done a case about Country AC and drug trafficking during her studies (undertaken via TAFE on a part-time basis over three years when she had intended to become a public servant); and
(e)she regarded the father as having an “exclusive” lifestyle (whereby he lived in a house and wanted jet skis and boats) which, in essence, she thought unlikely to have been able to be funded by his business of buying and selling crystals.
Further, whilst Ms L asserted that she had not taken her beliefs about the father’s involvement in the sale of drugs any further (which I took to mean something like reporting him to authorities) in the past because she “100 per cent” believed that the father’s family would have harmed her or her family if she had, she accepted that, despite giving the evidence she did in her affidavit filed 4 October 2020, she had not been harmed.
Despite everything, Ms L maintained her belief that, when the mother met the father, he was “100 per cent” using and selling drugs to fund his lifestyle. She said, when cross-examined, that she now believed that the father was “probably” being watched very well and was “probably” not doing this anymore. However, when asked to nominate those by whom she thought the father was being watched, she said “just everybody”: the police because they were around; the Department; “like all of the people looking for his money, tax, everything”. When asked whether she thought the Australian Tax Office was investigating the father, she said that she was just “throwing” that out there and did not know who was investigating him. Her answers certainly did not suggest that she placed particular weight upon ensuring that the evidence she gave was factual or precise, as opposed to a collection of conclusions that she had been willing to “throw” about.
A further appreciation of this approach is, I consider, to be found in her evidence about the issue of the mother’s allegation that the father had been bugging her telephone and having her watched.
Ms L’s evidence included that she “100 per cent” believed the mother’s assertion that the father had people following her around because “my house was followed as well”. She explained that, after she mentioned to her mother (X’s maternal grandmother) that a weird car had come around and sat out the front of her property and down the road, she had told the police about this and they subsequently contacted her. In order to appreciate fully the matters upon which Ms L relied for her conclusion that the “weird car” was connected to the father, it is necessary to set out that aspect of her cross-examination by Counsel for the Independent Children’s Lawyer:
Can you tell me please what about those observations of that vehicle led you to believe it was any way connected to Mr Rushton?---Because at that stage my mum was saying to me that my brother had had somebody confront him in a white four-wheel drive and then my mother saw it at her house and she said to keep an eye out and that’s when I stated to my mother, “Actually, I have seen a white four-wheel drive that was out the front of my house and then it was down the road waiting for me to drive past,” so that’s how it all came about.
I wouldn’t know how to hazard a guess of how many white four-wheel drives are in the state of Queensland but you would accept from me - - -?---Exactly.
- - - there must be many, many thousands of them?---Definitely and it probably wasn’t a – it probably wasn’t joined but the police officer rang me and I gave him the exact details.
I also note that Ms L said that she believed the father had told X to misbehave for her mother and the maternal side of her family; that he had told X to say “I’m tricking you”; and to lie or she would get in trouble. Ms L said she believed this because that was what X had told her. She also said that she “100 per cent” believed that the father would allow X to do naughty things to upset the mother and that he would direct her to do so for that purpose. Ms L’s evidence that she had never questioned her own beliefs about such things did little more, in the circumstances of this case, than increase my concern about the weight that could safely be accorded to them.
I consider that Ms L’s evidence about her belief in what she alleged X had said to her needs to be considered in light of the way in which she has formed her beliefs about the father’s alleged involvement with drugs and his alleged surveillance.
Further, I consider that I cannot safely accord weight to Ms L’s recounting of X’s comments to her because of a combination of the manner in which she has formed conclusions (as outlined above) and the fact that it became apparent during her cross-examination that her recounting in her affidavit of comments alleged to have been made by X between December 2019 and July 2020 had been made from memory only and without the assistance of any contemporaneous notes at all: she said that, when she wrote her affidavit, she just thought back and remembered, off the top of her head, the comments she alleged X had made at various times; she had not written down what X had said or when she had said it or when X had spent time with her; whilst I am prepared to accept that she may well think that she could and would remember exactly what X said to her on various unremembered dates, I am not persuaded that it is more likely than not that she has necessarily been able to do so accurately – particularly without the assistance of any contemporaneous record of such comments.
Whilst Ms L was adamant that the father had said, at Christmas 2015, that he would take X to Thailand and hide her and the mother would never see her again, she said that she did not believe the father would do that now because circumstances were completely different. She also said that she no longer held a fear that X would be seriously harmed or killed by her father.
The evidence of Ms A Diggins (the maternal grandmother)
It was clear from Ms A Diggin’s cross-examination that she has accepted, without question, every comment adverse to the father that X has made to her. She appeared to have accepted everything that X had said as being true because she considered that X had no reason to lie and that she was not “raised a liar”. Such an approach ignores, it seems to me, the very real possibility that children lie on occasions for reasons known only to themselves – as X did (which the mother accepted) when she told her mother that she had been taken to the police station and then to her childcare centre on a weekend when she was in her father’s care.
Ms A Diggins maintained her view, as she had in her October 2020 affidavit, that she then believed X was going to be seriously harmed or would die from the abuse she believed her father had perpetrated against her. Whilst she said that she didn’t think X was now at risk – because she was spending more time at the home of the paternal aunt
(Ms K) in City O and was not staying alone at her father’s home – she was clear in saying that her anxiety about X would return if the paternal aunt decided not to be present during X’s time with her father.
As is the case with Ms L’s evidence, I consider that I cannot safely accord weight to the content of Ms A Diggins’ affidavit unless the same is corroborated by evidence independent of that given by, or sourced in information other than that provided by, the mother or Ms L.
I have arrived at this conclusion because of the following.
Ms A Diggins’ evidence about the way in which her affidavit was prepared first included that it was prepared with the assistance of a chronology provided by the mother (which evidence contradicted the mother’s evidence about the degree to which she was involved in the preparation of the affidavits of Ms A Diggins and Ms L) using her diary to, in essence, help her to pin down a particular date within a month on which she asserted something had happened; it then included that the mother had not given her a written document to help her pin the dates down but, instead, the dates were included in the affidavit at the solicitor’s office using, most likely, the dates that the mother had given to the solicitor; it then became that she said it was right to say that some of the dates in her affidavit had been provided by the mother; it then included, at least initially, that she could not identify which of the dates to which she referred in her affidavit were dates that she recalled and which ones had been sourced from information provided by the mother; it then became that the mother would have provided all of the dates she (the maternal grandmother) referred to in her affidavit because she was the one that knew them, had all of the information and would have had the correct dates; it then became that she (the maternal grandmother) had no idea whether the dates to which she had referred in her affidavit were correct and that she had simply relied on information provided by someone else.
The information the maternal grandmother had provided to P Family Service on 29 July 2020 included that X had told her that her father had tied her up to the bed with a rope. However, when she was asked to recount X’s words to her, the maternal grandmother said X had said: “Daddy tied me to my bed, nana”. When asked to address the absence of any mention of rope in that recounting, the maternal grandmother’s response included “Well, have a look at the marks on your picture. Are they rope burns?” She accepted that X had not made any reference herself to “rope”; instead the maternal grandmother had assumed rope had been used to tie X to the bed because she thought she identified rope marks on the child’s ankle; she also said that X had first told her that she got tied to a tree and then, when she (the maternal grandmother) said that did not make any sense and asked X why that would happen, X turned around and told her that she had been on her bed and that her father had tied her to the end of her bed – and it was the maternal grandmother’s “assumption” that the father had used rope to tie X to the end of the bed.
Clearly, X’s complete change of story about what she asserted had happened did not cause the maternal grandmother to pause to consider whether the child might simply have been telling her a “story” rather than something that had happened.
The maternal grandmother was asked about that aspect of the P Family Service note that recorded that she had advised that X had told her “he tried to insert his penis and X ended up showering”. When asked to repeat the words she said X had used to convey to her that the father had tried to insert his penis into her, the maternal grandmother said “I can’t tell you that”; when asked whether that was because X did not say that to her, the maternal grandmother said “[i]t’s possible and it’s maybe not”. When asked whether X had told her this or the mother had told her that X had said this to her, the maternal grandmother said “[i]t’s possible she said it to her mum. I don’t know”. When she was asked whether it was right to say that she had no clear recollection at all of X having told her that her father had tried to insert his penis into her, the maternal grandmother said “[i]t could be, too”. When asked whether she had any clear recollection of X saying anything to her about her father trying to insert his penis into her, the maternal grandmother said “I don’t have that recollection”.
Despite my rejection of that aspect of the maternal grandmother’s evidence about what she alleged X said to her on various occasions, I accept that the maternal grandmother:
(a)considers that the paternal grandmother and Ms G deceived “authorities” when they said they had been present during X’s time with her father and that they need to be held accountable for this; and
(b)believes that the paternal grandmother and Ms G do not give a “damn” about X’s welfare and have both deliberately sought to conceal, or have concealed, the father’s abusive behaviour toward X; and
(c)considers that the paternal grandmother and Ms G were not there to protect X from her father’s abuse and that they need to be held accountable for this asserted failure; and
(d)believes that the father hit X’s head against a bed and, in order to cover this up, pushed her onto a wooden log when they went walking in the bush later that day – when asked why she thought the father would push X onto a log, she said: “Oh come on. Why do you think he wouldn’t? He has done the injury earlier in the day and he is covering up now”; and
(e)believes that, in the carpark of the contact centre used for changeover and before X walked into the centre to return to her care, the father pushed X’s face into the side of the car (with sufficient force to cause redness to her face) and told her to “shut her mouth”; and
(f)believes that the father pushed X’s head into a wooden bed structure or pushed her over to harm her because, when she asked the child – after checking her body over on her return into her care (as she routinely does) – about a mark on her forehead, X said “Daddy did it”; and
(g)believes that X has been harmed by her father in many ways; and
(h)believes that X had been taken out of the house by her father and put in a car away from the house so that he could abuse her; and
(i)believes that X has suffered a variety of quite damaging assaults (being sexual and physical assaults) and emotional abuses at the hands of her father and that there is nothing to recommend him to her as she does not know if he has any good qualities because she did not know him for long before X was born.
Whilst the maternal grandmother’s beliefs as summarised above appear to have arisen because she appears to think that X never lies when she tells her things, the evidence before the Court includes a clear example of an occasion on which the mother accepted that X had lied – and lied to the extent of telling her mother that she had first attended at the police station and spoken to a police officer and had then gone to her childcare centre to speak with staff there.
I note that, whilst the maternal grandmother agreed that it was quite possible that the father was not harming X but was, instead, telling her that he was so that she would return to her mother and tell her false tales of being abused by him, so that the mother would believe it, run to the authorities and be discredited, she thought that this would not explain “the rope burns”, bruising, and scratch marks she said she had seen X return with after spending time with her father. She also appeared to assert, though, that X would endure the pain of her father injuring her (I infer, for example, by deliberately scratching her) for the sake of doing his bidding that she return to her mother and tell her that he had harmed her. That the maternal grandmother would even conceive of such an idea seems to me to say more about her reasoning than it does about the likelihood of X suffering harm whilst in her father’s care.
That the maternal grandmother has been prepared to exclude reasonable explanations for aspects of X’s behaviours and conclude only that the same must be the result of harmful actions toward her by her father is, I consider, ably demonstrated by her evidence about X becoming “obsessed” with death, talking about it, asking questions like “What happens when you die?” and telling her grandmother that, in essence, whilst she was old, she was not so old as to go to heaven.
When asked about the conclusions that she had drawn from X’s comments and discussion about death, the maternal grandmother said:
Well, firstly, I’m sure X was threatened with death. I’m sure X was threatened with nana, Mamma and aunty also with death because it will explain the change of circumstances around this child’s behaviour….. these questions she would not have even thought about asking any time prior to that. She was too busy being in child land playing. This would not have been a conversation that she would not have even been able to think up for herself.
(As per the original)
This evidence was given despite her later accepting that, given that X’s mother’s dog had died and gone “to heaven” and that she had always been talking to her mother about the dog, this event could have been an explanation for X’s comments to her.
I note that, when she was then asked whether she was still seriously saying that she thought that threats of death had been made to X and members of her family, the maternal grandmother said “[y]es. That’s a possibility, probability and at this stage it’s not been a fact”; when asked whether she thought it was a possibility or a probability, she said “either” and then that it was a possibility and that it was still “sitting out there”; when asked whether she thought that the father might have killed X (who she thought was not under threat of her life at the moment), the maternal grandmother said: “Well, no one else would”.
What I regard as the maternal grandmother’s propensity to reach extreme conclusions, adverse to the father, from not uncommon presentations is, I think, ably demonstrated by her evidence that, as at August 2020, she believed the father was deliberately trying to cause a bleed on X’s brain and pass it off as an accident. Having said that X had not told her that her father was trying to cause a bleed on her brain, the maternal grandmother said that she had just reached this conclusion after X returned with lumps and bumps and made comments about how these had been caused.
Conclusions about the credit of witnesses other than the parents
Unless otherwise indicated, I generally accept the evidence given by Ms G and Ms K. Unless I specifically indicate otherwise, I prefer their evidence to that given by other witnesses where they conflict.
In particular, I accept the evidence given by Ms G that she has never seen the father:
(a)remove X from her bed during the night times; or
(b)be physically aggressive, slap, punch, push X or push her head against a bedhead; or
(c)sexually abuse X; or
(d)behave toward X in any manner she found suspicious; or
(e)act in any way that could be regarded as “grooming” X; or
(f)drug X so as to stupefy her (or at all) so that she was vulnerable to sexual assault.
I also accept Ms G’s evidence that she has never:
(a)heard the father tell X to be untruthful with her mother; or
(b)heard the father tell X to make false allegations of sexual abuse against him to her mother; or
(c)had any discussions with the father in terms to lead her to believe he had a plan to cause X to make false allegations against him to the mother so that he could use this in seeking that the Court make an order for X to live with him; or
(d)heard the father make any comment that might have led her to be concerned that he might want to kill or harm X, her mother or members of the extended maternal family; or
(e)heard the father make any comment that might have led her to be concerned that he had arranged for the mother and/or members of her family to be under surveillance; or
(f)had any concerns about the father accessing child pornography; or
(g)been asked by the father to conceal any abuse of X.
I also accept Ms G’s denial of the assertion that she has acted to conceal the father’s actions toward X.
Unless I indicate otherwise, I accept the evidence given by Dr Q and Ms E.
Given my conclusions about the mother’s evidence generally and that of the maternal grandmother and Ms L, it may be thought unnecessary to recount historical matters in particular detail. However, I consider this necessary for a number of reasons, which include: to outline clearly what I regard as the mother’s deliberate course of conduct since X’s birth; to demonstrate the care I consider needs to be taken in the future in assessing the mother’s representations; to attempt to provide an insight into the way in which the mother views events; and to attempt to identify those matters which, in my view, will require consideration, including by appropriate expert evidence, should there be any future reconsideration of the parenting orders which will be made to govern X’s parenting regime.
What follows does not purport to discuss every event that has occurred between these parents. Instead, I have attempted to provide an understanding of the milieu within which X has lived to date and to elucidate those aspects of her parents’ interactions and functioning which I consider to be particularly significant in the determination of those parenting orders which are now in her best interests.
PAST PARENTING ARRANGEMENTS, ORDERS AND EVENTS
Whilst the father said he did not recall the mother ever leaving him to care for X alone during their cohabitation, the mother’s evidence was that she only left X alone in the father’s care once during the parental cohabitation and that this happened in December 2015. She said that, when she returned, the father was sitting on the couch with X, jumped up and said “I think X has done a poo” and took her to the change table; she said that, when she followed him there, she saw that he was “shaking and fumbling” as he undid X’s nappy. Her evidence included that she then became concerned that the father may have harmed X while she was out and that she was checking around her vagina to see if there was any redness or other signs of him doing so.[10] She also said that, whilst she had hoped she was being “paranoid”, she had a “very sick feeling” in her stomach and told the father that, for health reasons, she would change X’s nappies from then on. She also said that, when she checked the bin, she found a soiled nappy – which persuaded her that X had already “done a poo” in her absence.[11]
[10] Affidavit of the mother filed 17 August 2021, paragraph 30.
[11] Affidavit of the mother filed 17 August 2021, paragraph 31.
During her cross-examination, the mother’s evidence included that it crossed her mind at that stage that the father may have sexually assaulted X in some way. She also said that, when she spoke with the father later, he told her that he had been accused of inappropriate behaviour before and that he had not done anything to X.
I am not persuaded that the father sexually abused X when her mother was absent from the home in December 2015. Even assuming that the father’s hand shook when he changed X’s nappy and that he fumbled in doing so, I do not assign any particular significance to this in terms of assessing the likelihood of him then sexually abusing his then baby daughter.
The mother said that, later that day, she asked the father about “the incident” as she felt very uncomfortable and was concerned for X’s safety. Her evidence is that after she asked the father “[d]id anything happen while I was away?” the father said “in a raised and shaky voice”: “[t]his is the second time that I have been accused of being a paedophile”. She said that she was “beside myself” following this comment and asked him what he was talking about and he told her about something that happened when he was 19 and living in City R.[12] The mother said that this conversation made her feel “sick and very concerned for X” and that she then felt on edge every time she saw the father carrying X or interacting with her.[13]
[12] Affidavit of the mother filed 17 August 2021, paragraph 32.
[13] Affidavit of the mother filed 17 August 2021, paragraph 33.
The mother said that, a few days after the above (that is: sometime in December 2015/early January 2016), the father lay on the bed next to her whilst she was breastfeeding and, after a while, said:[14]
X is going to be sexually assaulted by all of her step dads……but that is nothing compared to what I am going to do to her.
[14] Affidavit of the mother filed 17 August 2021, paragraph 34.
I simply do not accept that the father ever made such a comment to the mother. It is simply unbelievable that, had he in fact said what the mother asserted that he did on this occasion, the mother would have entered into consent orders, in December 2019, which provided for X to spend unsupervised time with her father. It is also, I think, incredible to think that the mother would have failed to make any contemporaneous complaint to police about such a comment if it had in fact been made and if she had in fact believed it to be a truthful assertion. There is no evidence of any contemporaneous complaint.
I accept that, following the parental separation toward the end of January 2016, X did not spend any time with her father (other than for about an hour in mid-February 2016 in the presence of a maternal uncle) until she saw him at Family Report interviews on 1 April 2019.
I think it likely that the February 2016 time occurred after the father sent the mother a text, on about 6 February 2016, asking when he could see X. I accept that it is more likely than not that, after the father subsequently sought to spend unsupervised time with X, the mother conveyed that she felt that, because of X’s age, it was not safe for this to occur and that her view was that supervision was “age-appropriate”. [15]
[15] Affidavit of the mother filed 17 August 2021, paragraph 100.
I accept that the father arranged family dispute resolution with S Family Service in May 2016. I accept that the mother did not attend; her evidence included that, because X was still a baby, she did not feel “safe and ready” for this process. I accept that, after the mother did not attend, a s 60I certificate issued.
I accept that, in a text she sent to the father on about 18 May 2017, the mother told him to get his brother to stop “stalking” her and X or she would go to the police. It appears that the event that instigated this communication was that the father’s brother took a photograph of the mother and X when he ran into them at the shops. I accept that the mother’s text continued as follows: “[y]ou start something up, I will ensure we are entitled to all X is worth – starting with this post”. I accept that the mother then included a reference to a post about $200,000.00 of new stock said to have been on the way for the father’s business. I accept that the mother’s text also included the following:[16]
Police report obtained for invasion of privacy and taking photographs without consent. All documented for the courts.
…
Mr Rushton I suggest you delete the photo of X taken yesterday 18/5/17 that Russell illegally obtained without parental authority. As I will contact the City T police today to ensure that it has been done – also from the iPad and computer. I will inform the police of your paedophile nature of letting a 6 year old girl hang out with you for months, getting into a spa with her naked. Also looking at children links on Facebook all day…
(As per the original)
[16] Affidavit of the father filed 11 June 2018, Annexure 3.
When asked where she obtained the information about the six year old girl and getting into a spa naked with her from, the mother said that the father had told her about this. I do not accept this evidence. When the mother was asked about the “looking at children links on Facebook all day” aspect of her text, she said that, during their relationship, the father had spent a lot of time on Facebook and “there were always Asian links and he would show me funny little captions of what kids were doing”. It is obvious that the connotation in the mother’s text is not that the father had found humorous captions about children on Facebook and shared them with her.
I note that the mother’s evidence included that she did not receive any communication from the father between October 2016 and late January 2018; I also note that she did not admit that she had been hostile and unreasonable in her responses to the father’s communications and said that she had never hidden where she lived with X from the father and that she was always contactable via telephone: as I understood it, the thrust of her evidence was, in essence, that the father could always have sought X out to spend time with her but he did not and that consequently, he, and not she, was responsible for the fact that X did not spend any time with him between January 2016 and April 2019.
Whilst I accept that it was always open to the father to commence parenting proceedings well before he did, his failure to seek time with X needs, in my view, to take into account the contents of the May 2017 text and that of the text the mother sent to him on 17 June 2017: [17]
Hello Mr Rushton, you know I feel it’s getting time to let the people of City T know what your really like. The fact that you hit pregnant women, or you go to hurt harmless babies, or maybe the golden one that you threaten to kill people, oh and not to mention you don’t pay any maintenance – all backed up with proof. Remember I keep everything for proof as it shows your mental instability and that of your family. And I mean everything – you’re a silly silly man. So you can play your silly silly games but I will let you know that I will finish them and you will lose everything. X is entitled to a good 200k so the decision will be all yours. All documents from the last 3 years will be submitted. You might be in debt with the house but it’s still an asset, and my house is in debt and it all goes into the pot. Not to mention the business. Trust mean nothing to bloodline – so think long and hard – but mostly wise.
(As per the original)
[17] Affidavit of the father filed 11 June 2018, Annexure “4”.
I think it clear that, by sending this text in the terms that she did, the mother was threatening the father that, if he pursued seeking to spend time with X, she would act to tell the population of City T the matters she outlined in it.
I accept the father’s evidence that he arranged and paid for a mediation in September 2018. I also accept that the mother did not attend the mediation and that, consequently, a second s 60I certificate was issued.
I accept that, on 5 September 2018, the mother contacted the City T Child Protection Investigation Unit (CPIU) to advise that she recalled an incident she asserted had happened when X was three months of age (i.e. in January 2016) – namely, that, when the father was changing X’s nappy, his hands had been shaking and he was fumbling; she alleged he had touched X. I accept that the police concluded that there was no evidence that any offence had occurred.[18]
[18] Independent Children’s Lawyer Chronology filed 30 August 2021.
Given the content of the texts the mother sent the father in 2016 and 2017, her decision to contact police in 2018 to report an incident alleged to have occurred in 2016 could not be thought to have been coincidental.
I accept Ms G’s evidence that, when she walked past the mother to enter the courtroom at the N Town Magistrates Court on 1 February 2019, the mother said “your daughter better watch herself”.[19]
[19] Affidavit of Ms G filed 16 August 2021, paragraph 3.
I accept that, on 2 February 2019, the mother contacted Ms G’s mother (whom she had never met and with whom she had never communicated before 2 February 2019) via Facebook messenger using the name “Mr U”. [20] I accept that, in this message, the mother advised Ms G’s mother that: the father showed no integrity and could lie at a moment to save face and or to control or manipulate a situation; the father had a different story for every situation; her child will not be able to defend herself from him as she is so young and vulnerable; the father had mentioned to her in the past that he was accused of sexual misconduct with a minor when he was 19 and that this “frightens me to death that he may also harm his daughter this way”; the father had always dated women with daughters; with a previous partner, the father had described her daughter as a “[fucking] liar”; the father had sunbathed with the teenage daughter of another partner when her mother was at work.
[20] Affidavit of the mother filed 17 August 2021, Annexure “D29”.
I accept that the message in essence alleged that the father was a paedophile, domestically violent and that he may be domestically violent toward Ms G.
I accept that the message also included the following assertion: “I know this is long stretch with your daughter dating this man, but I know you are a very wise person and my take into consideration that my daughter life is at stake here”. I accept that message also included the assertion that “I am concerned for Ms G’s daughter as it has been mentioned that Mr Rushton may have acted inappropriately towards her also – unknowingly to Ms G”.
During her cross-examination, the mother accepted that the consequence of her actions on 2 February 2019 for Ms G’s mother was that she received a Facebook message, out of the blue, which told her that it had been “mentioned” to the author of the same that her granddaughter might have been abused by the father.
I accept that, after Ms G’s mother responded to the mother’s initial message, the mother informed her that her message was about the father “trying to gain access to his daughter X as a retaliation to me seeking property settlement to help aid in X’s future”; I accept she asked Ms G’s mother whether she knew of any information that may be relevant to her keeping X safe: that is, if the father had “shown any domestic violent tendencies towards Ms G and her children”. I accept the mother also asked Ms G’s mother whether the father had acted “incorrectly” towards Ms G’s mother’s family.
I accept that, after Ms G’s mother replied further, the mother told her that the father was “one of those men that acts differently behind closed doors”; I accept that, when Ms G’s mother told the mother that she would find out from Ms G whether she was experiencing domestic violence, the mother suggested that she should “probably not mention me”. I also accept that the mother told Ms G’s mother that Ms G had seen her that day at Court and was “very smug” towards her – but this was because she was being fed untrue information about her by the father.
When asked whether she saw any issue with her communication with Ms G’s mother, the mother said that she did; she said she should not have taken the advice given to her to make contact with Ms G’s mother. While she also said that, looking back on it, she should not have written what she did, she sought to emphasise that she had been panicking and had reached out “under advice” to Ms G’s mother.
That this was the extent of the mother’s conclusions, having reflected on the contents of the Facebook message she had sent to a complete stranger[21] to suggest to her that her granddaughter might have been abused by the person with whom her daughter[22] was in a relationship, provides significant insight into the extent of the mother’s self-focus and disregard for others. That she was prepared to message Ms G’s mother in the terms that she did demonstrates to me the lengths to which the mother was prepared to go in order to attempt to prevent the father from spending time with X.
[21] Ms G’s mother.
[22] Ms G.
I do not accept the mother’s contention that, when she wrote the Facebook message to Ms G’s mother, she was doing no more than acting on advice she had received and thought that it was something she “had” to do: this answer was, I consider, simply an echo of her
oft-repeated assertion that, in acting as she has, she has been “just following advice”.
I accept that, on 8 May 2019, the mother contacted the Suburb J police station to make an allegation that, in December 2015, the father touched X whilst changing her nappy. As was the case when the same incident had been reported to the City T CPIU, police concluded that there was no evidence that any offence had occurred.[23] Given the content of the texts the mother sent the father in 2016 and 2017 and her decision to contact police in 2018, her decision to make a further report about what was the same alleged incident cannot be thought to have been coincidental.
[23] Independent Children’s Lawyer Chronology filed 30 August 2021.
I accept that interim parenting orders were made on 14 May 2019 for X to spend time with her father on a supervised basis at a local Contact Centre. I also accept that such time did not actually commence until July 2019 and consider it highly likely that this was the case because of the mother’s actions.
I accept Ms G’s evidence to the effect that, when she and the father took X to look for a bed for when sleepovers were to start in May 2019, she picked one out but then was sad and said “mummy said that I am not allowed to sleep at your place”.[24] I also accept that, at other times, X has told her that she was not allowed to go anywhere with her and her father.
[24] Affidavit of Ms G filed 16 August 2021, Annexure “G1”, paragraph 10.
I accept that a referral form completed by P Family Service (which provides counselling and support services for victims of sexual abuse) on 17 July 2019 contained the information that the mother was concerned about X’s protective behaviours in the context of concerns about her having contact with her father.[25]
[25] Independent Children’s Lawyer Chronology filed 30 August 2021.
I accept that, when the mother contacted P Family Service on 24 July 2019, she was given brief telephone support in relation to protective behaviours. The plan, from the service’s perspective at least, was to wait to hear more from the mother if she sought more support; a protective behaviours booklet was to be sent to her.[26]
[26] Independent Children’s Lawyer Chronology filed 30 August 2021.
I accept that, on 6 December 2019, final parenting orders were made, by consent, by the Federal Circuit Court of Australia.[27] The terms of the December 2019 consent orders included that the parents have equal shared parental responsibility; that X live with her mother and spend time with her father on a gradually increasing basis, culminating in time on alternate weekends[28] and for half of each school holiday period. The mother’s consent to the orders was proffered despite her previous assertions that X’s best interests would be met by spending no time, or supervised time, with her father[29] – because she asserted X would be at an unacceptable risk of being sexually, physically and emotionally abused by her father if any time she spent with him was unsupervised.[30]
[27] As the Federal Circuit and Family Court of Australia (Division 2) was then known.
[28] From 30 May 2020: from 9.00 am Saturday until 5.00 pm Sunday.
[29] See the Amended Initiating Application filed 29 January 2019.
[30] See: Notice of Risk filed 29 January 2019.
I note that the mother’s evidence included that, at a changeover on 7 December 2019, the father yelled at her and told her that she was a possessive, over controlling person and an over controlling mother and to pull her head in and watch her mouth.[31]
[31] Affidavit of the mother filed 17 August 2021, paragraph 240.
I accept that, whilst the December 2019 consent orders provided for X’s time with her father to initially be supervised at a Contact Centre, the centre was only open between Thursday and Sunday (inclusive). I note that the parents disagreed about when X should spend time with her father: whilst the father suggested that the time occur on a Thursday or Friday (when X was otherwise at childcare), the mother advanced that it should occur on the weekend because she had to work on the days that X was at childcare.[32]
[32] Affidavit of the mother filed 17 August 2021, paragraphs 134 and 135.
I note the mother’s evidence included that she could not persuade X to spend time with her father on 7 December 2019; 14 December 2019 (when she said X refused to go into the Contact Centre) and 21 December 2019 (when she said X refused to go into the Contact Centre).[33]
[33] Affidavit of the mother filed 17 August 2021, paragraph 136.
I accept that, on 13 December 2019, the mother contacted the Australian Federal Police to make a complaint about the father; when cross-examined she first indicated that this related to the assertion that he had been involved with an Asian child sex site; according to the contents of police documents, she also told the Australian Federal Police that the father had been money laundering; she explained that, having obtained documents from AUSTRAC after 9 December 2019, she learned that the father had been receiving funds from overseas and from that deduced that he was involved in money laundering – as opposed, simply, to receiving funds from overseas in the course of him conducting his business as a trader in crystals.
When cross-examined about why she provided the information about the allegation that the father was involved in an Asian child sex ring to police so soon after she entered into the December 2019 consent orders (which provided for X to have increasing unsupervised time with her father) - given that the basis for her allegations arose out of an affidavit the father had filed in July 2018 - the mother said that she had acted as she had because she was fearful and that she thought that providing police with that information might help to prevent X from having to spend the ordered time with her father. Whilst it was not immediately forthcoming, the mother admitted during her cross-examination that the father’s actions in February 2016 in texting her sister to tell her, contemporaneously with him discovering that his Facebook account had been hacked, that this was the case, established that he had acted consistently in asserting that he was not the person responsible for any connection between his Facebook or iCloud accounts and any Asian child sex site. Despite this, it is clear that she has informed various people and organisations on various occasions over the years of her view that the father has been involved with an Asian child sex site.
I consider that aspects of the mother’s evidence which followed her acceptance of the father’s consistency clearly demonstrates how difficult it is to appreciate what exactly she has relied upon as the basis for her view that the father has, in fact, been connected with an Asian child sex site or group – a view she has expressed to others on more than one occasion: in particular, I think it much more likely than not that she has simply been prepared to attempt to draw any connections that could in any way support her overall contention that he had been connected with such a site – for example, she said she thought it odd that his text message to her sister did not emphasise the “weird Asian child sex group” that he referred to in his later affidavit; she also said, when asked what it was that led her to conclude that he was a member of such a site or group, that, when she went back and read the text, it did not say precisely what group he had been hacked to but in his affidavit “it has got the group that he was precisely hacked to” – a contention that is simply untrue given that the father’s affidavit simply uses the phrase “some weird Asian child sex group”.
I accept that, on 21 December 2019, the mother took X to the Contact Centre to spend time with the father; I accept that, on arrival, X said she wanted to stay with her mother; I accept that, when asked if she wanted to go down to say hello to her father, she said “No, I want to stay with mum, I want to go to the movie”. I accept that, in the child’s presence, the mother told the team leader at the Contact Centre that the father would not allow X to visit a psychologist.
Any residual prospect that the mother is likely, in the future, to approach matters involving X differently to the way in which she has managed issues in the past was unquestionably quashed by her evidence when cross-examined.
The likely effect on X if the orders sought by her parents are made[151]
[151] Family Law Act 1975 (Cth) ss 60CC(3)(d).
I note that the mother’s evidence included that she believes X would suffer if removed from what she described as a “safe, warm, loving environment”; I note her belief that changing X’s primary care would have a devastating emotional and psychological impact on her life. Whilst I accept that it is much more likely than not that a change to X’s primary care arrangements is highly likely, particularly in the short-term, to be emotionally challenging and upsetting for her, I consider that growing up in an environment where she feels (as I think it is much more likely than not that she currently does) that she has to say that her father is sexually, physically and emotionally abusing her when this is not the case is highly likely to have at least the same degree of deleterious emotional and psychological impact on her life.
I note that both the father and Ms G clearly accepted that changing X’s primary care arrangements would be initially difficult for her; I accept that both are willing to attend therapy with X and follow the recommendations of experts in therapists in order to minimise the impact of a change of care may have on X. I accept that Ms G and the father would do all that they could to ensure that X was supported in managing the changes associated with moving to live with them if this is considered to be the parenting regime that is in her best interests.
It is undeniable that an order for X to move to live primarily with her father would result in a complete disruption to all facets of her life as she has known it: it would require her to leave the primary care of the parent from whom she has received the overwhelming majority of her care to date; she would leave the geographic area in which she has lived for all of her life; she would be required to change her school and would likely lose those friends she has made at her current school since starting Prep there in January this year; and, she would no longer be able to have the regular time with her maternal grandmother and her maternal aunt (and her children) that has been a feature of her life to date.
Further, if orders are made in the terms sought by the Independent Children’s Lawyer (and supported by the father), X would be required to deal with all of the upheaval, disruption and loss associated with such a significant change to her current care arrangements with only her father and Ms G (and, perhaps, her paternal grandmother) for support and absent the opportunity to spend unsupervised time with her mother and other members of the extended maternal family.
I accept Ms E’s evidence about the possible risks to X if her mother continues to negatively influence her against her father: namely that she is at risk of developing significant psychological issues, including low self-esteem, mental health issues, guilt for rejecting her father; it is likely she may use maladaptive coping strategies as she grows into an adult; that she may find it hard to engage positively in adult relationships.
Whilst the mother denies coaching or influencing the child, Ms E thought it clear from Dr Q’s account that the mother’s overt questioning of X in his presence suggested an inability to recognise when she is impacting X with her views. I accept Ms E’s evidence that, if the mother’s behaviours continued and she continued to engage in alienating behaviours toward the father – as I think it is much more likely than not that she will once the focus of these proceedings is over – then she will cause significant emotional and psychological harm to X.
I certainly accept that, given the likely consequences for X, an order which requires her to move to live with her father should only be made after a very careful assessment and consideration of the circumstances relied on by the father and the Independent Children’s Lawyer as persuading of the conclusion that such an order is in her best interests; I also accept that an order which requires X to move from the known care of her mother to the relatively significantly less-known care of her father and Ms G is not without its own risks and that these include the possibility that she may be harmed psychologically as a result.
Family violence[152]
[152] Family Law Act 1975 (Cth) ss 60CC(3)(j), 60CC(3)(k) and 60CG.
The mother told Ms E in November 2020 that she and X left the former shared home due to the father’s domestic violence, which was said to involve verbal, physical and emotional abuse. I accept the father told Ms E that he denied the mother’s allegations and denied being physically abusive to her, but said he had restrained her on occasions; he also said he had asked the mother to leave because of her asserted verbal, emotional and physical abuse of him – which the mother denied.
I do not accept the mother’s evidence that the father physically assaulted her during their cohabitation. I think it highly likely, though, that this period was replete with arguments and conflict, including – as the mother’s evidence included – occasions when the mother ‘prodded’ the father with a broom in her attempts to get him to leave the room because he was smoking around her when she was pregnant.
I accept that, on 25 March 2020, an ex parte temporary protection order was made in mother’s favour and that X was named on the same. It appears that this order was granted on the basis of the mother’s allegations that the father had been stalking her. As I understand it, the application for a final domestic violence order was dismissed by the Suburb J Magistrates Court on 18 December 2020.
As already noted, a final protection order was made in the father’s favour on 15 April 2019; the same is operative until 14 April 2024.
Parental Relationship and other relevant relationships
I accept Dr AE’s assessment that these parents have very different core beliefs, compatibility and personality structures.
I note that Ms G has asserted that the mother has engaged in a number of acts of “cyberstalking” of her, which she said made her feel “incredibly violated”:
(a)in February 2019: after the mother told her that her “daughter better watch herself”, Ms G thought she had stalked her on social media because she and the mother did not know each other personally and she did not know anyone connected to the mother who could have told her that she had a daughter; and
(b)in order to discover her mother’s contact information prior to contacting her on Facebook on 2 February 2019 using the name “Mr U”; and
(c)in November 2020: when she attached screenshots of her website, Facebook profile and “friend requests” as an annexure to an affidavit; and
(d)in May 2021: when she attached a screenshot of her LinkedIn profile and a photo of her with X to an affidavit.
Given the evidence of the mother’s assertion to staff at X’s childcare about how adept she is at accessing information, her evidence about how she went about her investigation associated with her assertion to police that the father was cultivating drugs on an “off-grid” property (as discussed earlier in these Reasons) and her actions in locating Ms G’s mother and messaging her (as also discussed earlier in these Reasons), Ms G’s concerns certainly cannot simply be dismissed as constituting an over-reaction to the mother’s conduct.
I consider that the mother has demonstrated significant ingenuity in her actions in gathering information for the purpose of attempting to undermine the father’s relationship with X and destabilise his relationship with Ms G and members of Ms G’s family.
Whilst the mother’s affidavit in reply contained the assertion that it was her experience that the parenting relationship had improved as time has passed, this evidence simply cannot be accepted following her cross-examination.
I consider that the evidence establishes that these parents do not have any co-operative parenting relationship or positive communications at all; given the matters the subject of discussion in these Reasons, it would be perverse to conclude other than that there is significant mistrust between them.
I consider that the evidence irrefutably establishes that there is no prospect these parents will be able to communicate in a meaningful way so as to reach any joint decisions about those matters which fall to be considered within the purview of “equal shared parental responsibility”.
I also consider that:
(a)the mother does not really see any benefit for X in having an ongoing and future relationship with her father; and
(b)X’s maternal grandmother and her maternal aunt do not really see any benefit to X in having a meaningful relationship with her father into the future; and
(c)the mother, the maternal grandmother and the maternal aunt (albeit, perhaps, to a lesser extent) are resolute in their asserted beliefs that the father has abused X sexually, physically, psychologically and emotionally.
WHAT ORDERS ARE IN X’S BEST INTERESTS?
It is well settled that the exercise of the discretion involved in determining those parenting orders which are in any child’s best interests “necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition”.[153]
[153] Morden & Coad [2019] FamCAFC 233 at [13] and the reference to U v U (2002) 211 CLR 238 per Gummow and Callinan JJ (with whom Gleeson CJ, McHugh and Hayne JJ agreed) at [90]; CDJ v VAJ (1998) 197 CLR 172 per the plurality at 218-219.
Allocation of parental responsibility
The presumption that it is in X’s best interests that her parents have equal shared parental responsibility for her[154] does not apply in the present case. Given this, the power to make parenting orders pursuant to s 65D of the Act is “at large”, albeit subject always to X’s best interests being the paramount consideration.[155]
[154] Family Law Act 1975 (Cth) s 61DA.
[155] Cox v Pedrana (2013) FLC 93-537 at [19]; Family Law Act 1975 (Cth) ss 60CA, s 65AA.
In determining whether it is in X’s best interests for an order that her parents have equal shared parental responsibility for major long-term issues relating to her is made, it must be remembered that such an order requires the decision about major long-term issues to be made jointly[156] and that each party consult the other in relation to the decision to be made about that issue and make a genuine effort to come to a joint decision about it.[157]
[156] Family Law Act 1975 (Cth) s 65DAC(2).
[157] Family Law Act 1975 (Cth) s 65DAC(3).
Given my findings about:
(a)the mother’s duplicity and her deliberate attempt to obscure her true position from both the Court and the father; and
(b)the manner in which the mother reasons, assesses events and draws conclusions from them (as I have attempted to elucidate in these Reasons); and
(c)the nature of the parental relationship,
I am completely convinced that these parents cannot make joint decisions or consult each other or make a genuine effort to come to a joint decision.
In the event that I am wrong in the factual findings I have made about the mother’s behaviours and the consequences of the same in the assessment of the likelihood of parental co-operation around joint decision making, I note that the mother’s evidence included that she and the father had not very often been able to agree about parenting decisions relating to X (for example, about childcare or school) and that, whilst they used the Our Family Wizard App, the father often did not respond to her messages.
Given my assessment of the mother’s actions as detailed extensively in these Reasons, I consider that X’s best interests will be met by according sole parental responsibility for the major long-term issues relating to her to the parent with whom she primarily lives.
Given the matters referred to above, I am not persuaded in this case that X’s best interests will be served by requiring the parent to whom sole parental responsibility is accorded to seek to ascertain the views of the other parent: although not uncommonly made, I consider such an order in this case to be something which is more likely than not to be productive of further conflict and, potentially, litigation.
Living and time orders: what orders are in X’s best interests?
Given my acceptance of Ms G’s evidence that X has become more reserved over time, I think it much more likely than not that X has already suffered harm as a consequence of her mother’s decisions; I also think it more likely than not that, if she continues to live with her mother, she will continue to be exposed to the same influences to which she has been exposed to date. I am simply not persuaded that it is in her best interests for this to occur.
Whilst a change to X’s primary living arrangements will likely be difficult for her and involve a great deal of disruption, I consider the long terms benefits of being removed from the suffocating exposure to the views of her mother, her maternal grandmother and, perhaps to a lesser extent, her maternal aunt about her father and their views of issues of her being abused by him sexually, physically and emotionally outweighs the short-term impacts.
Whilst it was noted by the mother that Dr AE’s assessment of her included that “I do not believe [the mother] presents with an incapacity to parent or to understand the negative impacts upon child of parental disputing”, such assessment was made without the benefit of hearing the mother’s evidence during her cross-examination. If such conclusion remains correct, though, it appears to suggest that, despite having the capacity to understand the negative impacts of the same on X, the mother’s conduct (as outlined extensively through-out these Reasons) did not change.
I note Ms E asserted, in effect, that, outside of “the concerns raised in the proceedings”, the mother has many strengths and is a loving, capable and protective mother who has provided well for X, with whom she has a close bond and whom she clearly loves. However, “the concerns raised in the proceedings” are, in my view, so pervasive that I cannot join in the entirety of Ms E’S opinion in this respect.
Whilst others may disagree, I have, after very careful consideration of the relevant statutory considerations, assessment of the evidence and significant reflection and for the reasons which I have expressed ultimately concluded that, irrespective of all of the consequences associated with a change to her lived primary care arrangements to date, it is in X’s best interests that she now move to live with her father. I could not have concluded as such absent a conclusion – which, as noted earlier, I have reached – that she is not at risk of being harmed, whether via being sexually abused, physically abused or psychologically or emotionally abused, whilst in his care.
Given my conclusion that, for whatever reasons or motivation, the mother has encouraged and/or influenced X to make false allegations against the father, with detrimental consequences – which have included undergoing a number of medical examinations, being interviewed by police and Departmental officers – for X of the same and my assessment of the mother’s interpretation of information and the manner in which she appears to draw conclusions from the same, I join in the significant concerns expressed by Ms E about the mother’s emotional well-being and her mental health. I also accept Ms E’s opinion that the mother needs intensive psychological support over a prolonged period to help her recognise the harm she has caused to X and to ensure that she does not, in the future, act in the same manner. I record Ms E’s assessment that it was possible that the mother has some problematic personality features that have impacted on her functioning and parenting of X, as well as on her ability to communicate and co-parent with the father.
The undesirability of a long-term supervision order for X’s time with her mother
I completely accept that it is not often in a child’s best interests for their time and communication with a parent to be required to occur indefinitely under supervision; I accept that this is because of the obvious constraints that supervision imposes on a child’s ability to continue in, or to develop, a meaningful relationship with that parent.
That the mother has failed to restrict herself from commenting adversely about the father in X’s presence is, I think, clearly established by the following aspects of the evidence:
(a)the report by Dr Q to the Department on 5 June 2020 when he recounted that “this is one of the worst cases of parental alienation that he has ever seen” and that “X has not made any disclosures in terms of sexual abuse but that [the mother] does prompt X and he has seen it in his office”; and
(b)the entries in the records kept by the contact centre which record that: on 21 December 2019 the mother said the father would not allow X to see a psychologist while in X’s presence; on 12 October 2019, the mother was speaking about the reasons why X does not want to her father in front of X; and, on 27 September 2019, the mother was speaking about the father and court proceedings in front of X.
Given that I also think it highly likely that the mother has previously interrogated X about her father (via what she has described as “gentle discussion”) – and that this behaviour has caused X stress, anxiety and distress – I consider that it is much more likely than not that, absent a change to her underlying attitude and approach to X’s relationship with her father, she will continue to engage with X in a similar manner unless prevented from doing so by the presence of a supervisor.
Consequently and unfortunately, in this case I have concluded that, despite the restriction on X’s ability into the future to continue in her relationship with her mother, protecting her from harm requires the imposition of this constraint until the mother can establish, via appropriately qualified expert evidence, that she has been able to reflect on her actions, including the manner in which she has approached the issues the subject of discussion in these Reasons, and can demonstrate that it is more likely than not that she will not, in the future, act in the same way as she has in the past. That is, I have concluded that it is in X’s best interests, and necessary to protect her from what I regard as the unacceptable risk of being emotionally or psychologically harmed, that her communication and time with her mother occur under supervision until her mother can establish, via expert evidence from an appropriately qualified clinician, that she has addressed those matters the subject of discussion in these Reasons.
I reiterate that, during the course of her cross-examination, the mother’s evidence included that she did not believe that, when making comments about the father to X, that she was negatively impacting on X: that is, she did not appear to recognise that the extent to which X’s attitude toward, and relationship with, her father was likely to have been adversely affected by being exposed to her views and attitudes about him and she simply did not seem, to me, to recognise that there was any harmful consequence to X of her behaviour, as discussed through-out these Reasons.
Whilst the mother’s evidence included that she had been seeing a psychologist since February 2021 and that she has seen this practitioner on six occasions between February 2021 and July 2021,[158] there is simply no evidence at all from this practitioner other than to confirm the mother’s attendance on those dates: that is, the Court has nothing at all about, for example, the matters which the mother discussed with the psychologist; the reasons she attended upon her; and/or how the practitioner considered the mother to have been progressing in the manner in which she has reflected on the matters discussed in these Reasons. This absence is even more significant given that, as I have already noted, the mother attempted to explain that her ostensible change in position about X’s future interaction with her father was a consequence of, at least in part, her participation in therapy with this practitioner.
[158] Affidavit of the mother filed 31 August 2021, paragraph 18 and Annexure “D76”.
The imposition of a moratorium
The Independent Children’s Lawyer did not propose that a moratorium over X’s time with her mother, following her moving to live with her father, be imposed. The father joined in this position. However, the submissions made on the mother’s behalf included that, if an order was made for X to move to live with her father, there should be a moratorium of about three months’ duration over her time and communication with her mother.
Whilst I am not persuaded, having regard to the evidence given by Dr Q and Ms E, that it will be in X’s best interests for there to be a moratorium of three months’ duration over her communication and time with her mother, I do consider that a moratorium of one month’s duration will be beneficial for X because the same will:
(a)afford her the opportunity to settle into the care of her father and Ms G without the possibility that this change may be undermined by her mother; and
(b)allow her to start to adjust to the fact that she will now be living primarily with her father and Ms G and having supervised time and communication with her mother; and
(c)enable the father and Ms G to engage an appropriately qualified counsellor or therapist and engage with the same to support her in transitioning to live with them and, if the therapist considers it appropriate, to assist her to understand, in an age-appropriate manner, the reasons underpinning the change to her living arrangements.
Further, such time will also allow the parents to make the appropriate arrangements with the contact centres to which reference is made in the orders, there being two in case the mother does not move to live in the same environs as the father and X. It will also afford the mother sufficient time to relocate to live in the H Town environs if she continues to wish to do so and to receive therapeutic support to help her to deal with the changes consequent on the orders made to finalise these proceedings.
Concluding comments about the terms of the orders determined to be in X’s best interests
I note that, during her submissions, Counsel for the mother outlined that the mother did not take issue with the injunction sought by the Independent Children’s Lawyer.
To the extent that any other aspects of the parenting orders to be made are not the subject of particular discussion in these Reasons, I have concluded that the same are in X’s best interests.
For the reasons expressed above, I consider that the orders set out at the commencement of these Reasons are those parenting orders which are now in X’s best interests and appropriate and proper in all the circumstances established by the evidence before the Court.
I certify that the preceding five hundred and four (504) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 20 December 2021
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