DML and DVT
[2006] FMCAfam 714
•22 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DML & DVT | [2006] FMCAfam 714 |
| FAMILY LAW – Parenting – competing applications for where the child will live – sexual abuse allegations – psychological harm to the child – child’s best interests – child removed from primary carer. |
| Family Law Act 1975 (Cth), ss.60B, 60CC, 61DA, 65DAA |
| B v B (1988) FLC 91-978 M v M (1998) FLC 91-979 Briginshaw v Briginshaw (1938) 60 CLR 336 |
| Applicant: | DML |
| Respondent: | DVT |
| File number: | PAM 3027 of 2003 |
| Judgment of: | Henderson FM |
| Hearing dates: | 24 and 25 August 2006, 18 October 2006, 6 December 2006 |
| Date of last submission: | 6 December 2006 |
| Delivered at: | Parramatta |
| Delivered on: | 22 December 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Sansom |
| Solicitors for the Applicant: | Rowley & Ross Lawyers |
| Counsel for the Respondent: | Mr Greenaway |
| Solicitors for the Respondent: | Olivers Lawyers |
ORDERS
The parents have joint parental responsibility for the child born 2001.
Until the child commences school in 2007, the child to live with her father as follows:
(a)From 12 noon, 18 December 2006 until 6.00pm, 21 December 2006
(b)From 12 noon Boxing Day to 6.00pm, 30 December 2006;
(c)From 12 noon 8 January 2007 to 6.00pm , 14 January 2007,
Thereafter and from 24 January 2007 the child to live with her father other than when she is living with her mother as specified in these orders.
The child live with her mother as follows:
(a)From the commencement of school term 2007 each alternate weekend from after school Friday to 6.00pm Sunday, commencing 2 February 2007.
(b)For the first half of each school term school holiday period commencing 12 noon the day after school ceases to 6.00pm the second Sunday of the school holidays.
(c)The mother’s alternate weekend time with the child to recommence the first weekend after school resumes in each school term.
(d)In the Christmas School holidays, commencing 2008, being the second half of the school holidays in even numbered years and the first half of the holidays in odd numbered years, and to alternate each year thereafter.
To facilitate the child spending time with her mother, the father to collect and deliver the child to and from either the mother’s home at the Blue Mountains or the maternal grandmother’s home at Campbelltown as determined by the mother.
The child to spend the weekend of Mother’s Day with her mother in addition to her regular alternate weekend time with her mother.
The child to spend the weekend of Father’s Day with the father, with the mother’s time with the child to recommence the weekend following Father’s Day.
The child to spend time with her mother as agreed between the parties in addition to the times specified in these orders.
In the event the parties are unable to communicate in relation to issues concerning their daughter they are to do so by way of a communication book, which book shall travel with the child.
The child to be known by the name TTL and both parties are injuncted and restrained from permitting any other name to be used for the child.
NOTATION
That Dr Carolyn Quadrio has recommended that the mother attend and/or seek psychiatric assistance in relation to the avoidant attachment parenting style she exhibits. The court recommends the mother attends such counselling but will make no such order.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 3027/2003
| DML |
Applicant
And
| DVT |
Respondent
REASONS FOR JUDGMENT
The matter of DML (the father) & DVT (the mother) was heard by me over four days commencing 24 and 25 August 2006, 18 October 2006 being heard to finality on 6 December 2006.
The applications before the court were competing parenting applications in respect of the parties’ daughter, TTL (the child) born in 2001.
The father was the applicant and he sought that his daughter live with him and that she spend alternate weekends with her mother from Friday until Sunday and each Wednesday afternoon until 7pm, half school holidays and other times as agreed. In the event the father was not successful in obtaining orders that his daughter live with him, he sought similarly a regime of time with her as he proposed for the mother.
The mother sought that her daughter continues to reside with her, and the child’s brother, K born in 2004. That until she commences formal education in 2007 she spend time with her father from 11am Saturday until 5pm Sunday for three weekends out of a four weekend cycle, time on her birthday, Christmas day, and holidays. Once the child commences school the mother proposed she spend each alternate weekend with the father from after school Friday until 5pm Sunday.
Each party’s alternate position in the event they are not successful in their application for their daughter to live with them is as proposed for the other parent.
The evidence relied upon
There was a vast quantity of material that I read for the hearing by way of affidavit material, expert reports and exhibits.
The court had the benefit of a report prepared by Dr Carolyn Quadrio dated May 2006 and prepared after interviews in April 2006. At the commencement of the hearing it was agreed by the parties that Dr Quadrio would be giving evidence by the telephone. I formed the view, having regard to Dr Quadrio’s findings in relation to the mother’s mental health and her capacity to parent and be emotionally available to the child that she should come to court to be cross examined in person. This is one of the reasons the matter took more than the two days normally allocated for a final hearing in this Court
Dr Quadrio’s report was marked Court Exhibit 1. Dr Quadrio was examined and cross-examined on 18 October 2006.
For the father I read the following material:
a)His affidavit filed 28 July 2006
b)Affidavit of his girlfriend, MP, sworn 25 July 2006
c)Affidavit of his mother, JC, sworn 24 July 2006.
d)Affidavit of his brother, JL, sworn 27 July 2006.
I have the benefit of a case outline prepared on behalf of the father by his representative, Mr Sansom of counsel.
The father tendered before me the following exhibits:
a)Father’s Exhibit 1: Short Minute of Orders sought,
b)Father’s Exhibit 2: Documents produced by Registry of Births, Deaths and Marriages.
The father, MP, his mother and his brother were all cross-examined at the hearing by Mr Greenaway of Counsel who represented the respondent mother.
For the mother I read the following material:
a)Her affidavit filed 11 August 2006
The mother tendered various exhibits to me as follows:
a)Mother’s Exhibit 1: The mother’s notes in answer to matters raised in the father’s affidavit which the mother had failed to answer in her affidavit filed in these proceedings. The father’s affidavit was filed on 28 July 2006 and the mother’s on 11 August 2006.
b)Mother’s Exhibit 2: Hand written affidavit filed by the father in relation to contravention proceedings he brought in this court which he withdrew.
c)Mother’s Exhibit 3: Letter from JC, the father’s mother and the child’s grandmother, to the mother dated 28 February 2002.
d)Mother’s Exhibit 4: New South Wales Police Service documents in relation to K’s father, BJC, and the violence perpetrated by this man against the mother and witnessed by the child and K. I formed the view and expressed the opinion during the matter that BJC was a violent and abusive man and that the mother had not exaggerated her fear of him.
e)Mother’s Exhibit 5: Report from the child’s Child Care Centre, indicating that the child is progressing extremely well and attends five days a week, Monday through to Friday. The Centre reports she is a bright and cooperative child showing a keen interest in all aspects of learning, she is active and caring towards her younger brother who also attends the Centre.
f)Mother’s Exhibit 6: Part of the documents included in Father’s Exhibit 2 being records from the Registry of Births, Deaths and Marriages.
I have three sets of transcripts of the proceedings on 24 August 2006, 25 August 2006 and 18 October 2006 which I have read.
Issues
This is a difficult matter in that the child has always lived with her mother, and the father seeks orders that I change that well established care regime and that she forthwith commence residing full time with him. This would result in a substantial change to her usual care regime and separation from her mother who has been her primary carer, her maternal grandmother who has been a significant adult in her life, and her younger brother with whom all parties agree she has an excellent and caring relationship.
Both the mother and the father are young and have experienced difficulties in their lives, both as to their parenting and their lives generally.
The father’s case is that should the child come into his full time care he will cease paid work until she attends school and would only do some part time work when she is not in his care. The father is paying child maintenance of some $100 a week to the mother although there are some arrears of Child Support.
The parties live a considerable distance apart. The father lives in Sydney’s South, the mother lives in the Blue Mountains, and the paternal grandmother lives on a property in Tamworth.
Dr Carolyn Quadrio recommends at the conclusion of her report
If the court were to exclude a risk of (sexual) harm to the child in the care of the father and to support that there may be a risk of (psychological) harm to the child in the care of the mother, then I would suggest that the child should reside with her father and have regular contact with her mother.
Therefore, there are two preliminary and essential matters that I must make findings on today namely is there a risk of sexual harm to the child in the care of the father, and is their a risk of psychological harm to the child in the care of the mother. These findings must be made before I can embark on my obligation to make an order in the child’s’ best interest having regard to the factors under sections 60CC (2) (3) and (4) of the Act. In reality all these matters are somewhat interdependent and not easily separated from the other.
The current law in relation to risk of harm to a child is well settled and enunciated in decisions such as. B v B (1993) FLC 92-357. & M v M. (1988) FLC 91-979.
Chronology
The relevant chronology is as follows:
In 1980, the father is born, currently aged 26 years.
In 1980, the mother is born, currently aged 26 years.
In July 2000, the parties commence their relationship.
In 2001, the child is born.
In July 2002, the parties’ relationship ends.
In December 2003, Final Orders for residence and contact are made. The orders provided that the child was to live with the mother. The father was initially to have supervised contact and then contact each Sunday.
In April 2004, the mother tells the father her relationship with BJC, K’s father is over and she and he resume a relationship but do not live together.
K’s father makes threats to the mother and the children and is arrested by the police. With the father’s knowledge the mother takes the children to Perth in September 2004 to escape BJC’s threats. The mother and children’s airfares are paid for by the Department of Community Services. The mother has family in Perth.
The father’s evidence is he agreed for the mother to take the child to Perth for three weeks but no longer and when the mother arrived in Perth she informed him she intended to remain there permanently which he did not agree with.
The mother returns to Sydney in April 2005.
In June 2005 interim orders were made at the Federal Magistrates Court at Parramatta. The father to have time with the child in a three weekly cycle as follows:
a)Week 1 the father does not spend any time with the child.
b)Week 2 from 10am Wednesday to 6pm Thursday.
c)Week 3 from 10am Saturday to 6pm Monday.
The parties were to meet at Katoomba railway station at changeover.
In August 2005, the orders are varied slightly by consent.
October 2005, the father is informed by text message from the mother he will not be seeing his daughter.
In late October 2005 the father receives a call from the JIRT team. This is the first occasion he has been informed there has been a report of sexual abuse of his daughter against him. He was informed that the investigation had been dismissed after an interview with the child.
On 14 November 2005 the mother seeks supervised contact orders for the father and the child.
The father has difficulty having contact with his child from 14 November 2005 until December 2005.
On 24 February 2006 the mother indicates by letter from her solicitors that she no longer requires contact be supervised having previously made much about supervision and who was to accompany the father on contact.
Orders are made on 27 February 2006 in the Federal Magistrates Court that the father have unsupervised interim contact each second Sunday from 9.30am to 6pm, each Saturday from 9.30am to 7pm, and as agreed.
Difficulties then arise with the mother delivering the child for contact which frustrates and angers the father.
The father has contact with the child provided he attends to collect her at the mother’s home.
A series of confrontations take place between the mother and the father, often in the presence of the child at the mother’s front door. From the evidence, which I will refer to later, I formed the view that the father was the main instigator of those confrontations and was most angry that he had to do the travelling to see his daughter, that he had been accused of sexually abusing his daughter, and taped these conversations for his own reasons.
The parties receive a copy of Dr Quadrio’s report in June 2006 and the mother sends a text message to the father suggesting an extension of contact. The father agrees.
Father’s and MP’s evidence
The father was cross-examined by Mr Greenaway for some time. It became clear from cross-examination that the father and MP had by the time of the hearing decided they would not be moving in together late this year or early next year and were now taking things more slowly.
This was different to the information Dr Quadrio had worked from in her report namely that the father and MP intended to move in together some time late this year or early next year. Mr Greenaway sought to make much of this change and submitted to me that this was a fundamental change to the facts Dr Quadrio’s had based her recommendations on and that those recommendations were now compromised. I did not accept that neither this submission nor that this change was fundamental to the integrity of Dr Quadrio’s recommendations.
I found both MP and the father consistent, open and honest in their understanding of their relationship which is this: they see a future together, the father will move closer to where MP lives in the Hill’s District area but at this stage they are taking things slowly, and particularly having a regard to the child and whether the father will be successful in his application.
It was also clear from Dr Quadrio’s report, MP’s evidence and the father’s evidence that the child has a good relationship with MP and she is fond of the child.
In the later part of 2005, the father had been accused of sexually abusing his daughter. When he attended the mother’s home to collect his daughter for contact he taped many conversations. No doubt he taped those conversations in order to protect himself from further allegations and to provide to this court evidence of what he says was the mother’s difficult attitude with him.
From his evidence under his cross-examination and upon a reading of the conversations set out in his affidavit I have formed the view that the conversations recorded reflect poorly on him rather than on the mother.
For example, paragraph 62 of his affidavit, on 5 March 2006 the father takes the child to the door, the child, he says, did not want to leave his care and was tired, the father’s comment to the mother upon her answering the door is this:
Did she go to pre-school this week?
He asked this because he had had a conversation with the child on the weekend in which she had said to him she did not go to pre-school. He then discusses with the mother:
Is next week on?
The mother says;
It’s on the orders.
The father says:
Ok, no I was just wondering if you found some way to get out of it like last time.
The mother allegedly then called the father a name. The father says:
Don’t swear in front of my daughter. See you gorgeous, I’ll see you next week.
The father’s affidavit is littered with similar conversations he has had with the mother. I find the father did approach the mother at this time in a belligerent and aggressive manner and was somewhat flippant with her which behaviour would cause the mother to be disgruntled and anxious of his demeanour and approach. This behaviour is clearly not in his daughter’s interest.
Another example of the father cross-examining the child is as follows. On 4 March 2006 the father picks the child up and says to her:
Father: Didn’t mummy give you a bath last night.
The child: No we didn’t have time.
Father: Oh you didn’t have time for a bath. And you didn’t go to pre-school this week?
The child: No.
Father: How come you didn’t go to pre-school? Is that all you did all week going on trains? Did mummy go to school?
The father was cross examining the child to gather information to use against the mother. However such questioning would have raised the child’s anxiety and rather than the father enjoying his time with his daughter, he spent it gathering information for this case.
In the father’s affidavit he taped a conversation on 13 May 2006 when he returned the child to her mother. The father said:
So what’s happening tomorrow
The mother said:
It’s Mother’s Day
It should have been fairly clear to the father that it was appropriate and proper for the child to spend mother’s day with her mother as it would be appropriate and proper that she spend father’s day with the father. However, the father persisted in this argument.
Similarly conversations the father and his family members have had with the child are cause for concern. The father, his brother, MP, and the grandmother have all verbally attacked this child because she does not use the name TL, telling her that her name is TL and not just T. They each report the child either became upset or defiant yet they continued pressuring her on this unimportant issue to the child.
This conduct is clearly inappropriate. The use by child of a name is a parental issue not something to take up with a child but with the child’s’ parents. It is not the child’s fault if the mother chooses to use a different name to that on the birth certificate. It is a matter the father should have taken up with the mother in a polite and courteous way. It was not appropriate that his brother, his girlfriend, the child’s grandmother and he harass the child about the name she should use. I found that evidence, which was consistent by all these parties, quite distressing and demonstrated in each of these adults a lack of understanding of the negative impact such comments to a small child, would have upon her and her relationship with her mother.
The farther did concede to Mr Greenaway in cross-examination on some occasions that perhaps he was at fault in his communication. I find he was almost always at fault in his communication with the mother particularly after the sexual abuse allegations had been made. His assertions to Dr Quadrio that the mother sought to stop him spending time with the child, that she would not communicate with him, that she made it difficult, is in great measure due to his belligerent attitude towards her and at odds with the evidence.
I accept the mother’s assertions that that the father did pursue and push the mother and harass her on occasions when he was returning the child and would seek to speak to her when she clearly indicated she did not want to talk to him. That conduct does not speak well of the father’s respect for the mother as his daughter’s primary carer.
I accept the father was appalled and angry concerning the allegations of sexual abuse and that in order to see his daughter he had to do all the travelling to the Blue Mountains. That he may have felt such, in no way excuses him denigrating and demeaning the mother in front of the child, causing unnecessary distress and hurt to the mother, further compromising the poor communication between them and cross examining his daughter. This behaviour is indicative of the father’s lack of maturity in some areas.
I found MP to be a truthful and an honest witness. Both she and the father say they have a future together, they are taking it slowly, and she is aware of her role in the child’s life and in no way seeks to supplant the mother. MP would be a valuable support to the father in the care of the child and is a person the child enjoys spending time with.
Issues were raised by the father and MP concerning the child’s hygiene whilst in the mother’s care and MP had even kept a pair of the child’s soiled underpants as evidence of maternal neglect. I do not make any finding of maternal neglect and indeed the mother’s physical care of both children is of a high standard. This is a young mother with two young children to care for. I do not see any of the matters raised by the father would cause me any concern as to the mother’s capacity to physically care for her child.
The issue I do take from the evidence in relation to the child’s hygiene is that the father and MP, in an endeavour to gather evidence for this court, may have embarrassed this little girl on one occasion when her underpants were stained with faeces with their questioning of her as disclosed in their affidavits. The questioning was inappropriate.
Further the father berated the mother concerning the child’s underwear at the front door of her home when returning the child. That the stained underwear was a significant issue for the father and MP whilst the child was with them on the weekend became clear from cross-examination. This again shows a lack of maturity and capacity to put the needs of the child above gathering evidence. The evidence of stained underwear on one occasion at a time the mother asserts the child had been unwell with diarrhoea has not convinced me at all that this child is in any way physically neglected by her mother.
A somewhat distressing event occurred in June 2006 when the child was ready for collection by her father. The child was dressed in a ballerina dress. The father was very critical of the mother at the time and in his oral evidence for dressing the child inappropriately for the cold weather. The father could not see that the child had dressed up to look pretty for her father and he failed to take this gesture as it was meant, a treat for the child and himself.
The father was pressed on the issue of the mother’s allegations that he was violent towards her during their relationship. Although I do not make a finding that the father has perpetrated domestic violence upon the mother or in the presence of the child, I do accept that due to his immaturity in 2000 that he would have reacted aggressively towards the mother, and she was young mother with a young child and she would have been frightened on occasions. However, I do not take those matters any further than that.
Further, I accept the submissions of Mr Greenaway on behalf of the mother that the she has tried in the past to be flexible and provide the child to the father on occasions such as his birthday and commensurate with his shift work. The father reluctantly, after some questioning in cross-examination, conceded that perhaps the mother had been more flexible than he had lead himself believe and as reported in his affidavit.
On the issue of the child relocating to Perth, I do not accept that the father would have agreed to the mother removing the child permanently to Perth. From his oral evidence it was clear the father understood the difficulties K’s father was causing for the mother. He agreed for the mother to go to Perth for a break and get away from BJC. However, having regard to the father’s commitment to his daughter since her birth I cannot accept that he would readily agree to his child being removed to Perth on a permanent basis. On this issue I accept his evidence rather than the mother’s.
Further I give the father credit in withdrawing his contravention proceedings. Those proceedings would not have assisted him to restore his relationship with his daughter and this behaviour shows a degree of maturity and child focused attitude on his part.
In relation to the alleged sexual abuse disclosures made by the child to her mother, the father showed a mature attitude in the witness box. He agreed with Mr Greenaway that if such a disclosure was made the mother would react to try and protect the child and he believed that protection was appropriate conduct on the mother’s part. I also accept the father’s evidence that he was absolutely shocked when he received the call from the JIRT investigation team in relation to the alleged abuse.
The father agreed that the communication between him and the mother at the time the JIRT investigation team called him was at an all time low and they could not communicate.
Paternal grandmother and uncle
The paternal grandmother’s evidence was that she observed her son to be very distraught when the JIRT team rang him and told him allegations of sexual abuse had been made against him. The grandmother agreed that if the child had made the disclosure to her mother as asserted by the mother that the mother would also be distraught and upset.
The grandmother was asked whether she gave any thought to the mother’s position upon this disclosure to her by the child. The grandmother said she had not. The grandmother was unable to look at this issue from any perspective other than her son’s and her belief that nothing had happened. I do not know what I can take from that evidence other than that the grandmother is supportive of her son.
The evidence of the father’s brother is that he took it upon himself to discuss with the child her name and the name she used, and has taken it upon himself to discipline the child at times when the child is in his care. I will make orders concerning the child’s name.
Apart from these issues of concern it is clear both the paternal grandmother and paternal uncle have a high regard for the child and she for them. Dr Quadrio was very complementary of the paternal grandmother’s atunedness to the needs of the child; particularly given the child has spent such a little period of time with her paternal grandmother. Dr Quadrio was impressed with the strength of their relationship, and the obvious happiness they enjoyed together as observed by Dr Quadrio at the time of her interviews for the report
Mother’s evidence
Very little of the mother’s reporting to Dr Quadrio concerning her past or her fears regarding the father and the child where contained in her affidavit. The mother opened her cross examination with a concession that she believed that the child’s father was great with her. He spends time with her and he teaches her things.
The mother is seeking to improve her circumstances and is studying to be a counsellor which cannot be easy with two young children to care for. However her evidence on the study she does, the time it takes and the care of the children was confusing.
Through 2005 and 2006 and up until the time she saw Dr Quadrio in May 2006 she was attending classes at an inner city Campus, a significant distance from her home in the Blue Mountains. She had been previously doing distance education and was not required to attend the campus. The mother’s evidence was that in 2005 she attended the campus occasionally but that she mainly did her course through distance education. In 2006 due to the nature of the subjects that she was taking which was counselling skills, counselling methods and social analysis she was again not required to attend classes.
It was clear from the evidence that the mother was not required to attend classes in 2006, but she did and attended the Campus every day. The mother’s evidence was that she needed to attend the Campus as HECS funding had changed, she could no longer afford text books at a free or reduced price and was required to attend the Campus to use text books which are a significant part of her course.
Attending the Campus involved the mother in a four hour trip each day to spend a couple of hours in the inner city. It became apparent in cross examination that the mother was doing four modules in 2006 although the requirement was only three as she wishes to finish this course sooner rather than later so she can commence employment and earn an income as a counsellor. The mother’s evidence was that she was leaving home between 6.20am and 6.30am and would drop the children as early as possible off at the centre. Thus in order for the mother to complete her course sooner rather than later, her children are also taking on a significant burden in the lives.
To assist the mother to carry out this herculean trip each day she needed to change the child’s pre-school. The mother failed to inform the father of this change.
Having regard to the father’s conduct and attitude towards the mother during the early part of 2006, that failure may not be surprising. However it clearly demonstrates the lack of communication between this young couple.
The mother also gave evidence that the last occasion she had any medication for depression was at the end of 2004, early 2005 when she was in Perth. The mother has not had any on-going psychiatric or other counselling in relation to her depression and only began seeing a counsellor some two months before the hearing commenced in August 2006. The mother said she began this counselling to assist her in dealing with the disclosures made by the child concerning her father. Again I had some difficulty with this evidence as the child’s disclosures were made in late 2005 and the mother did not attend counselling until May 2006 and at a time after she had been interviewed by Dr Quadrio and perhaps even after Dr Quadrio’s report had been released on 25 May 2006.
The mother gave evidence that she went to the counsellor because the child was stressed upon returning home from contact and the mother wanted to know ways to help her cope. However at paragraph 44 of the mother’s affidavit she says “The child is a bit unsettled when she returns from contact but is otherwise managing the arrangements well”. This affidavit evidence is inconsistent with the mother’s oral testimony.
The mother did not tell Dr Quadrio that she believed that her daughter was having trouble coping on her return from contact, between May and October 2005, rather she told Dr Quadrio that “it was very exhausting and a long trip as they have to get up early”.
The evidence of the disclosure
The mother believes the father has in the past sexually interfered with the child and that the child is at risk in his care.
At paragraph 30 of the mother’s affidavit she gives evidence of the child disclosing to her on 21 October, that “Daddy touches me here”, and that as she said those words she pointed to her genitals.
That is the extent of the disclosure in the mother’s affidavit. The mother said in cross examination she believed this disclosure to be in some way referable to inappropriate touching by the child of the father and of him obtaining some sexual gratification. This is despite the fact that the child is young; the father bathes and dries the child and assists in toileting her.
These words are the high point of the disclosure as set out in the mother’s affidavit. The mother gave evidence that the child was not upset at the time she made the disclosure. The mother confirmed in her oral evidence at paragraph 30 of her affidavit was an accurate reflection of what occurred on the day the child made the disclosure. That is not an accurate statement at all.
The mother’s oral evidence greatly embellished the child’s disclosure. The mother said in oral evidence that when the child made this disclosure she said to her “oh, does he, does it happen all the time”. That conversation was not included in the mother’s affidavit.
The mother was asked
why didn’t you contact the father and say look the child has just said this to me, what’s going on?”
The mother said that
I was told by DOCS when I contacted them he was not to know the exact details because it could interfere with the investigation of any inappropriate actions.
This statement is not included in the mother’s affidavit.
Mr Sansom then said
all your daughter told you according to your affidavit was that daddy touches me here? You did not say that the child suggested her father touched her inappropriately”
The mother said
I assumed it was inappropriate.
This is the gravamen of the allegation of the father’s alleged inappropriate behaviour.
In Dr Quadrio’s report, page 6, she reports the mother said to her concerning the child’s disclosure. “The mother panicked in October last year when the child reported that dad tickled her privates”. The mother agreed this is what she had said to Dr Quadrio.
Mr Sansom then asked;
well there is a difference isn’t there between tickling someone’s privates and daddy touches me here?”
the mother answered;
she (the child) said both on that day, it was a longer conversation, it was about 15 minutes before I called the refuge”
This information is not included in the mother’s affidavit and inconsistent with the mother’s earlier evidence that paragraph 30 of her affidavit was an accurate assessment of what happened.
Paragraph 30 reads:
“On 21 October 2005, the child told me that “Daddy touches me here”, she pointed to her genitals. She had previously complained about her genitals being itchy and I was unsure what to do, so I contacted the worker at the refuge where I had stayed previously. The worker had previously worked for DOCS. The refuge worker referred me to DOCS helpline who I called that day. The Help person at the Help Line referred me to my local general practitioner.”
The mother then attempted to explain why she failed to put in her affidavit the full extent of what she asserted was the conversation she had had with the child on the day. The mother said she did not put the word’s “daddy had tickled her privates”, because it was no longer relevant at the time she swore her affidavit in August 2006. When pressed on the meaning, the mother’s explanation was because Dr Quadrio had formed the view that there had been no inappropriate behaviour by the father towards the child, the mother accepted Dr Quadrio’s opinion and therefore did not put it in her affidavit. I find this evidence most peculiar. It is a recurrent theme and behaviour demonstrated by the mother namely an acceptance by her of findings by persons in authority which are opposed to her own strongly held beliefs. Despite the mother being still of the view that the child was possibly abused by the father, after the report of Dr Quadrio was released, the mother agreed to unsupervised contact and had her mother inform the father. I find there is cause for concern regarding the impact on the child from this behaviour.
The mother also told Dr Quadrio at page 7 that this was not the first incident where she had had concerns about the child. In cross examination she said that when the child was aged 1 year she had thrush and the doctor asked was it possible. Was it possible means was anyone interfering with the child. The mother confirmed that at that time she had no fear that the father was doing anything to the child and it would have been someone else, if in fact anything had happened.
Again in cross examination the mother admitted that when the child was 18 months or so she told the doctor she had observed the child masturbating, which was unusual for a child of her age. Dr Quadrio reports the mother saying “when the child was about two she started masturbating when she came back from contact”. The mother disagreed that this was an accurate reporting of what she had said. The mother said she told Dr Quadrio that at about the age of two she took the child to a paediatrician about her masturbation. The mother said she notified the Department of Community Services about the child’s masturbation after seeing the paediatrician. The mother confirmed that the paediatrician told the mother that it could be a comfort thing. None of these matters were in the mother’s affidavit. The mother confirmed Dr Quadrio had asked her to look back on the child’s history and that upon looking back she now thought the child might have been abused by her father in the past.
When pressed on these prior concerns the mother confirmed she had concerns that the father had interfered with the child prior to the child making disclosures in October 2005. I found her evidence on this issue confusing. The mother said that she had concerns but that those concerns had stopped with all the court cases and everything and the child was not exhibiting any behaviour, the masturbation had stopped. Yet it was clear that she raised her prior concerns at the women’s refuge where she fled with the children from K’s father. Had raised those same concerns with Dr Quadrio, DOCS and the JIRT Team and believes the child has been abused by her father in the past. The mother explained she believed the abuse occurred because her daughter would not have lied to her. The question is what did her daughter say to her on that day?
The mother’s reporting to The Joint Investigation Response Team (JIRT) of this incident and the child’s behaviour comes out of left field. The mother reported the child had been rubbing herself against furniture and had been placing her hands inside her pants and when she asked her to stop the child said, “Dad lets me do it”. The mother said the child told her she was doing it because it feels good. The mother reported that each time she returns from her father’s she complains of a sore front bum. None of these disclosures or incidents is reported in the mother’s affidavit. They are not reported to Dr Quadrio.
A DOCS officer reported that the child said that her dad tickled her when she had a bath and he was drying her. The mother would not concede that perhaps this was the explanation for the child saying “dad touches me down there”, that is her father drying her after a bath. Dr Quadrio observed the child being tickled by her dad at the interview. At page 14 of her report the mother told Dr Quadrio that the father coached the child to say she was touched by her dad after the bath.
I then entered into some discussion with the mother, what she thought the child meant by private parts.
The mother said
“her vagina and bum”
I then asked,
“well don’t you assist your daughter sometimes to wash her vagina and bottom and touch her down there; she is only a little girl”.
The mother said,
“I have taught her that’s what your private parts are and no I do not. I have taught her how to do all that and she is of an age that she washes and I stand there whilst she washes herself to make sure she does it properly”.
I find it sad that the mother can see no innocent explanation for her daughter’s comments and immediately assumed the worst of the father and she said so in her evidence.
The mother confirmed in Court that she believed there was a possibility her daughter had been abused by her father. This is in circumstances where there is no physical evidence to support her belief, the high point of abuse in the mother’s affidavit is that the child had said to her “daddy touched me there”, when telling this to her mother the child was not upset or distressed, a DOCS officer confirmed that the child was being bathed and dried at the time, the matter has not been taken any further by the authorities and yet the mother believes this was inappropriate touching.
The mother’s cross examination resumed on 6 December 2006. It became clear that she agreed for the child to spend an extended time with her father, at her grandmother’s property and that this had occurred from the 17th to 22nd November. The mother agreed it went well for the child and she had fun. The mother had also flown to Perth during the adjournment with her friend RM, and the child and K were looked after by her mother. This was in early November.
The mother gave evidence concerning her relationship with RM, there having been no mention of him on 24 and 25 August 2006 or 18 October 2006. The mother said she and RM have had a relationship for about seven months, from about May this year. He has been staying over every weekend for the past month and prior to that time he had only stayed over on a few occasions on a weekend. RM sometimes comes over during the week, has a meal, he gets on well with the children and they have planned a future together, although there are no plans for him to move in, in the near future.
The mother made no mention of RM, either in her affidavit which she swore and filed in August 2006, no mention of RM to Dr Quadrio and made no mention of RM in her evidence on 18 October 2006. The mother’s failure to disclose a relationship with someone who spends significant time at her home and with her children is of concern to the Court.
RM has not submitted himself to cross examination, has not filed an affidavit supporting the mother and Dr Quadrio has not interviewed him although I accept their relationship was embryonic at that time. Of further significance is that the maternal grandmother who was interviewed by Dr Quadrio but has not filed an affidavit in support of the mother or submitted herself to cross examination. It does accord with Dr Quadrio’s concerns regarding the mother’s isolation.
This is in stark contrast to the father’s case. MP, the father’s girlfriend filed an affidavit, has been interviewed by Dr Quadrio and subjected herself to cross examination as has his mother and brother.
This failure by the mother to tell the Court about RM is consistent with the alleged disclosures she asserts were made by the child to her yet not put in her affidavit. The mother chose to put only one disclosure in her affidavit, embellish them a little more to Dr Quadrio and paint a far more detailed picture to the JIRT and DOCS team.
I do not say the mother deliberately lies, but the mother clearly gives different versions of events to different people and at different times which are at times inconsistent. The mother does not fully and frankly disclose to any one person at any one time all that is happening or all that she has observed .We get her evidence in dribs and drabs.
The mother said she was unaware that she had to put in an affidavit about her relationship with RM. I do not accept that explanation. Given that the father’s girlfriend swore an affidavit, was interviewed by Dr Quadrio and cross examined, I do not accept that the mother who is not an unintelligent woman did not know she needed to do the same. It is again an example of the mother choosing what she will bring to the court by way of evidence.
It became apparent that the mother had ceased attending counselling, despite Dr Quadrio’s recommendations that counselling is necessary for the mother to assist her to deal with her own issues and change her present detached parenting style. When asked why she had done so said “It was because, you had said to me that I couldn’t discuss these proceedings with anybody as I was still under cross examination”. I am at a loss to understand how the mother could interpret my comment as meaning she was unable to continue therapeutic and necessary counselling recommended by the expert in this case. This is but again an example of how the mother deals with persons of authority. The mother said that she didn’t feel that she needed to see anyone, but that if Dr Quadrio wanted her to go, she would.
I found the mother gave her evidence in a flat and unemotional way. Dr Quadrio reports at page 16
“The mother was quite articulate and in spite of the quite difficult content remained at ease and appeared euthymic “
That is the same description I would use of the mother in the witness box. On issues such as her belief the father was and had abused her daughter, there was no sign of an expected emotion such as upset, horror, anger or concern. The mother’s evidence was one dimensional and given in a very black and white way.
Dr Quadrio’s evidence
Dr Quadrio’s report was prepared after interviews with the parties were held in April 2006. At pages 13 and 14 the mother told Dr Quadrio she believed the father was “touching” their child. She believed that the father “had coached the child for today” and “was told to tell that daddy only touched her after the bath to dry her”. Dr Quadrio could find no support for the child being coached nor that the child had been sexually abused by her father.
Dr Quadrio reports that the children were in the room for 35 minutes whilst she spoke to the mother and at no time during this period did they seek any time or attention from her. K was not quite 2 years of age at this time. The child played quietly and in a contained manner, K was more boisterous.
At page 16 Dr Quadrio reports that the mother said the child’s behaviour was very different at the interview and she is normally outgoing but now she is very quiet. The mother said the child is aware she is not being believed in relation to her disclosure that her father touched her down there. This fact has then raised in the mother her own issues about not being believed in Court when she was 10 years old that she has been sexually abused as a child by a baby sitter at age 7.
The fact of not being believed and having been abused was a big issue for the mother as a child and she has had to go back to counselling to deal with her past issues as well as deal with the present issues she has concerning the child. The trauma the mother has experienced in her past has been substantial. The mother’s mother was diagnosed with bi-polar at age 10 years and had several hospital admissions during her life, post natal depression after the birth of her children and she currently takes Epilom. The mother and her sister were sexually abused for 6 months by a baby sitter who was a neighbour. The perpetrator was charged and the matter went to Court. The mother was interviewed, medically examined and had to give evidence at the age of 10 in the Supreme Court. Not surprisingly, the mother was unable to give sufficient coherent testimony at her age and there was no conviction. At that time the mother became very introverted and was not making friends. The abuse worried her through her teenage years and she has had dreams of the perpetrator chasing her. The mother said she had a lot of counselling as a child, she went to girls groups and sexual abuse groups. Her parents were supportive, perhaps over supportive. They were not allowed to play much and any friends had to be cleared by mum and dad. The perpetrator was being a bit of a smartass and walking passed her parents house and so her parents were reluctant to allow them outside.
The mother reported sleep difficulties, not going to bed until about 2am or 3am, and having to get up very early to attend her course in the city.
The mother believed that the father had broken into her home and taken her underwear after separation. This theme of underwear was something the mother referred to in her interview with Dr Quadrio and in her affidavit on page 13. The mother said she had a thing about underwear, she thinks the father has a perverse attitude to underwear. The mother made complaint that the father takes the child’s clothes off when she is in the car with him, including her underwear, dresses the child in his clothes and this concerns her.
The father agreed that after the child was born things between he and the mother deteriorated and although they were trying to work things out, they were living separately. He admits he smashed a window on one occasion which was not a good thing, but he has never hit her and has never hit anyone. He agrees that the mother called the police and he was charged with assault. He pleaded guilty to that assault and malicious damage on advice, and the mother obtained an AVO.
The parties did reconcile after that event.
The father reported that he believed his daughter was scared of her mother and that the mother was bad-mouthing him to the child. That is not Dr Quadrio’s observation. It is far more complex than fear.
Dr Quadrio noted that the child had been quite low key during the interview with the mother. The child’s response when invited by Dr Quadrio to see her father as reported on page 24 is compelling. Dr Quadrio reports:
“Her immediate response was to look pleased and she started to get to her feet but then suddenly seemed to think better of it and abruptly sat down again and refused to come in. She became distressed and clung to her mother and refused to separate. With some gentle persuasion she very reluctantly entered the room. She stood at the doorway, weeping, as if not knowing what to do. Her father scooped her up into his lap and she began to cry with considerable distress. The paternal grandmother became very distressed as well. Within a few minutes the child nestled into her father’s chest and stopped crying but remained quite low key for some time”.
Dr Quadrio is describing a rubber band effect. That is a child wanting to go but knowing whether she should not or that there might be consequences of going. Similarly when the grandmother offered the child a gift, she suddenly looked fearful and confused and refused to take the gift. Similarly with the book her grandmother offered she refused to take it. She continued to sit on the father’s lap and cuddle into him. She began to smile when looking at photographs of herself at her grandmother’s farm which the father had brought in an album to the interview.
After some seven minutes she began to talk to MP, happily sitting in her father’s lap. She became happy and giggled. The father was very focused on her. He tickled her and she made no effort to resist this physical contact with her father.
The child got off her dad’s lap after about 13 minutes to collect a book but she immediately returned to him. Dr Quadrio reports
“By 15 minutes the child was quite relaxed and smiling and much more animated than I had seen her during the rest of the day. She voluntarily remained on the father’s lap, leaning into his chest and maintaining cheek to cheek contact.”
Dr Quadrio further reported;
that the atmosphere with the father, MP, her Uncle, and her grandmother, was very relaxed. It was obvious that the child has an easy familiarity with MP and her Uncle, with the father, and she continued chatting happily with them. There was a lot of close physical interaction between all of them and the child was relaxed and receptive. She was giggling, smiling and drawing, clearly very much at ease.”
This is in marked contrast to the observations of the child and her mother and brother made by Dr Quadrio of quiet, well behaved and contained children.
Dr Quadrio reports the child has fine motor skills, good coordination, and she impresses as quite an intelligent child. She made careful arrangements that her father take her Easter egg home to his house so that she could have it on Easter. The child hugged her father and MP and separated without any difficulty. At this point Dr Quadrio was able to speak to the child because she was no longer anxious and she responded easily to questions. Previously when with her mother and maternal grandmother she had been very anxious and Dr Quadrio had been unable to engage with her
The child told Dr Quadrio;
“she is not afraid to be at daddy’s, she likes her visits and would be happy to sleep over.”
Dr Quadrio endeavoured to talk to the maternal grandmother alone regarding the mother and the consequence of the sexual abuse perpetrated against her as a young child and the aftermath of the stressful court hearing. Dr Quadrio reported that the maternal grandmother was unable to focus on this issue. She said she and the mother have never talked on the subject, and that the mother avoids it. Dr Quadrio formed the view that the grandmother had a tendency to move away from issues of the mother’s childhood to focus on these children, that there was an avoidance of dealing with the issues concerning the mother and that these issues may be unresolved for the grandmother as well as the mother.
The father was aware of the mother’s abuse as a child as she had told him. He believed her at the time but was not so sure now. However he admitted she was very protective of the child in that way.
The father at page 30 of Dr Quadrio’s report makes an insightful observation. He believes the child’s behaviour is normal but has the impression that at home they “sit around a lot and don’t do anything”. He was concerned that she is “not a curious child, she doesn’t explore or go into cupboards, that she is probably made to play by herself for a long time, she is not as outgoing as you’d expect a child of that age to be”
The father then said “the mother takes good care of the child physically but she is poisoning her mind”.
Those observations were made also by Dr Quadrio. At page 36 Dr Quadrio reports The child is self-contained and does not explore and that;
The child is not able to express her wishes but her behaviour indicated both that she is experiencing considerable turmoil and also that she enjoys her time with her father.
Psychological harm to the child
Dr Quadrio was most concerned that the child who will attend big school next year and attends day care 5 days a week was unable to name a special friend. What was of concern to Dr Quadrio was that the mother had described herself as a bit of a loner, living a somewhat isolated life and that this evidence coupled with the child not having a special friend, was of particular concern. Dr Quadrio reported that the mother did not have a good social network herself and that the mother may not be or be unable to encourage the child to develop a social network of friends in her area.
It became clear that the maternal grandmother has had a long history of emotional difficulties. Dr Quadrio referred to them as “metal health disturbances”. It is also clear that there was a degree of psychological fusion between the mother and the grandmother. Dr Quadrio went on to explain in cross-examination that she had formed the view as set out in her report that the maternal grandmother and mother had a borderline personality disorder (BPD) although further testing would need to be conducted to make a definite finding. At minimum Dr Quadrio said the mother had elements of post traumatic personality disturbance, meaning someone who has had a traumatic childhood and who has had personality problems as a result.
In cross examination Dr Quadrio explained her reasoning;
“the most important aspect of BPD was that such people almost invariably have had a traumatic childhood of one sought or another. Often they have experienced abuse, frequently sexual abuse; additionally they remain very pre-occupied with those issues of abuse.
Dr Quadrio opined that she had found the mother very preoccupied with her own abuse and her belief her daughter has been abused. Dr Quadrio went on to say:
“Other people may be abused and yet some how come to terms with it and move on, but remaining intensely and intensively pre-occupied with the abuse is characteristic of this disorder. Having turbulent relationships, having a number of relationships with men who may be abusive or violent is also a characteristic of their lifestyle”.
There is no doubt the mother’s relationship with BJC was violent. The mother alleges the father was violent in their relationship .The mother is now in her third significant relationship and I have no evidence from RM or objective evidence about him. That is of concern to he Court and to the welfare of the child.
Dr Quadrio made a positive comment that if people with border personality disorder get access to good treatment, they make considerable recovery and with maturation and age recovery is also possible. She believed that generally around the middle thirties and onward there is a kind of settling down and maturing of people who have had turbulent relationships and instability in their lives.
Dr Quadrio confirmed that the mother does have a preoccupation with the concept of abuse and if the child has not been abused, then by continuing to live with her mother the child would run the risk of believing she had been abused due to her mother’s preoccupation and belief. Dr Quadrio agreed if this occurred the child would be psychologically traumatised.
There is no issue that the mother meets this child’s physical needs. Of great concern to Dr Quadrio was the avoidant attachment disorder she perceived in the child’s relationship with her mother and also in K’s relationship with his mother. Dr Quadrio explained that this meant the mother can not relate to or connect with the child sufficiently to put the child’s emotional needs first for their healthy future development. Thus she opined the greatest difficulty for a child remaining with a parent who can not emotionally attach to them is that the child will suffer from the same problems resulting in an inability on their part to form secure attachments in relationships through their adolescence and adulthood. Dr Quadrio said the mother had a preoccupied style and that this was a significant risk factor for the child’s psychological development. She was asked to explain what this meant and said :
“Preoccupied style means is that a mother is very much preoccupied with her own feelings and own internal experience and therefore does not really focus on the child’s experience adequately, that is an avoidant attachment in a child and a preoccupied style in a preoccupied parent usually go hand in hand.
Dr Quadrio further said:
The child is then used to a mother or father as the case may be, sort of not quite psychologically connecting with her. The child then tends to no longer seek connection and the child becomes avoidant. This is very evident that the mother’s very preoccupied with her own feelings and experiences and is likely to act on that rather then be able to actually tune into where the child is at.
Dr Quadrio confirmed that she observed this type of relationship with both the child and K, particularly with K turning his head away from the mother when crying and standing facing away from her whilst crying as described at page 14 of her report.
In relation to the avoidant detachment of the children from their mother the evidence is this. I accept the children were up very early in order to make their appointment with Dr Quadrio and would have been tired by the end of the day. Dr Quadrio was very careful in her observation of K when he bumped his head and came to his mother for comfort. He had a tantrum and did not want to be comforted by his mother. When the children’s tiredness was put to Dr Quadrio as an explanation of their observed behaviour she said
“although its good to know the children were up early and tired it would not change the style of the attachment behaviours that were manifest at the meeting”
Dr Quadrio went on to say
“I don’t think the attachment styles of the children would be affected by that”. (that is the early morning, tiredness) in fact them being tired and irritable is sometimes, although regrettable for the child, is actually helpful in seeing because that’s when a child will need comforting and would say a lot about their attachments style”.
Dr Quadrio was then asked what K did when he came over to be comforted by his mother, Dr Quadrio said;
“the way in which he did, turning his head away was not indicative of a child who has a secure attachment relationship”.
Mr Greenaway questioned Dr Quadrio’s in relation to her observations and findings at page 14. K was outside and fretful and he came in to join her. Dr Quadrio said;
“He was asked to join in and came straight to his mother and clung to her for comfort. She wiped his nose and that upset him so he began to howl, and turned his face away from his mother’s and broke his contact, he did not seek physical contact with her”.
Mr Greenaway said,
“well the mother was emotional at this time”
Dr Quadrio disagreed and said
“I think I have commented later on that I thought she didn’t show as much emotion as I might have expected given the nature of the history”.
Dr Quadrio’s exact words at page 16 were
“she was articulate and I noted that in spite of the quite difficult content she remained at ease and appeared euthymic meaning to exhibit normal mood responses”.
Mr Greenaway then asked
“but wasn’t that an appropriate response?”
Dr Quadrio said
“no, it’s not appropriate to have normal emotions when you are dealing with abnormal material”.
Given the content of the history being reported to Dr Quadrio, namely the mother’s own abuse and her belief that her daughter was being abused she believed the mother should have exhibited more emotion then she did.
Dr Quadrio further commented “,
“I think the way in which he broke contact and turned his face away from his mother is a fairly typical indication of a child with an attachment problem”
and she then said;
“it was a very compelling example of the child’s attachment relationship”
I then asked;
“so turning your face away is telling?”
Dr Quadrio said
“yes it is the very characteristic of children who have difficulty in attachment, that rather than seek comfort from the parent, they turn away from the parent….K wanted to be in the room and that’s what’s helpful in conceptualising what is happening. He wants to be in there, but he doesn’t want to be, he wants to be with her and he doesn’t want to be with her”.
Dr Quadrio then went on to say;
“what is of importance is the ambivalent nature of the attachment. It indicates his problems with attachment behaviour… K did gradually settle but without seeking any further contact with his mother.
Dr Quadrio found the child has a markedly avoidant attachment style which is in keeping with a child who is left to her own devices a lot, or whose mother is preoccupied with her own unresolved trauma and is not able to tune in to the child’s emotional needs . Dr Quadrio reported whilst with the mother and maternal grandmother, the child did not show any exploratory activity and very little attachment seeking behaviour. This is, as Dr Quadrio reports, is most unusual in a child of this age in relation to a primary caretaker. For 35 minutes these young children played without seeking any contact from their mother.
When told she was to see her father the child was reluctant to separate from her mother and cried. Dr Quadrio believed that the child felt she did not have permission to be with her father and her cries reflected severe internal turmoil, rather than difficulty in relating with him. The impression is the child is under pressure from her mother to maintain distance from her father. What was of concern to Dr Quadrio was that the children did not seem to have any more of a secure attachment to the maternal grandmother, who has been very involved with these children, than they did with their mother.
Dr Quadrio reported that the child, within 10 minutes of separating from her mother, became relaxed with the father’s family, she was more animated and at ease, she exhibited strong attachment seeking behaviour towards the father, was playful and interactive and responsive with him. They were very focussed on her.
There was no clinical evidence the child has experienced any sexual anxiety with her father, nor did she manifest any sexually inappropriate behaviour. The paternal family does not report on any sexualised behaviour, but they are aware she is too well behaved and does not explore. That is how a lay person, Dr Quadrio says, generally describes avoidant attachment. The paternal grandmother was particularly sensitive to this issue and was highly attuned to the child
The mother is physically parenting the children adequately. However, the insecure attachment styles of both children suggest there are significant problems. K’s attachment is similar to the child’s. This raises significant concerns about the capacity of the mother to provide for the children’s emotional and physiological needs.
Dr Quadrio found the mother had a preoccupation with her own childhood abuse. Dr Quadrio opined that unresolved preoccupation with childhood trauma generally causes the parent to develop a preoccupied attachment style with their own children which detracts from the capacity to focus on the needs of the children and may lead them to have disorders of attachment in their life. This may well be the case here. The maternal grandmother has significant mental and other health problems and yet she is the mother’s main support. The mother and the grandmother are psychologically fused and the grandmother herself would have difficulties in focussing on the emotional needs of the children.
Dr Quadrio believed the mother may have a disturbance of personality of the Cluster B type but would need further evidence. Such evidence may be in the overstatement by a person of the violence in a relationship and Dr Quadrio was concerned that the mother may have overstated her violent relationship with BJC. I find she did not overstate BJC’s violence and thus this area of support for a personality Cluster B type personality disorder is not available to Dr Quadrio.
Dr Quadrio further reported that adults who are preoccupied with their own abuse tend to be form abusive relationship. This is certainly the case with K’s father BJC. Further I accept that the father was not an easy person to live with and that there was some poor behaviour on his part during the relationship. I have no independent evidence concerning RM, the mother’s current boyfriend and this is of concern to the Court
Dr Quadrio confirmed that the mother did not show any understanding that she had this preoccupied style of parenting and that this was of concern because Dr Quadrio formed the view that the mother certainly needed professional assistance with her style of mothering. The mother confirmed her lack of insight when she said she did not think she needed counselling but if Dr Quadrio said she should go, she would.
The above evidence of the children’s observed insecure emotional attachment to their mother, their mother’s observed preoccupation with her own issues of abuse and the resulting preoccupied attachment style of parenting read with Dr Quadrio’s initial observation at page 6 of her report
“It was now 35 minutes into the interview and the children had been playing very quietly, particularly the child who is a very quite and contained child, K is a little more boisterous, K is only two. The mother chastised the child for not sharing something with K and I noticed the child was very fragile and emotional and she burst into tears and then clung to her mother for comfort. The child impressed as an extremely well behaved and highly socialised child. The impression is that she is very contained, perhaps over controlled and inhibited, she showed very little exploratory activity and initiated very little attachment seeking behaviour with her mother accept when distressed”
is both distressing and compelling evidence.
I have formed the view on this evidence and my observations of the mother whilst giving evidence in a flat unemotional manner that through no fault of the mother her inability to be emotionally available to the child has resulted in an insecure attachment by the child to her primary carer and that there is a significant risk of emotional and physiological harm to the child by remaining in her mother’s primary care.
The father on the other hand is well able to meet the child’s needs in all respects. He suffers from no psychological disturbance, he is stable at the moment, his family relationships and other relationships are stable and normal and he has matured in recent years. The paternal family has impressed as being strongly connected to the child. They are warm, and loving and appropriately focused on her.
Dr Quadrio reports that the father and his family believe there is a deliberate campaign on the part of the mother to alienate the child from them. I do not make such a finding. I find that it is the mother’s psychology and resulting personality which has caused her to act in this way rather than through any malice or intention to alienate the child from her father. Whether the mother is deliberately doing this, or as I have found it is a consequence of her own troubled history, the fact is that the mother will be unable to ensure she does not engage in conduct that does alienate the child from the father.
Findings in relation to sexual abuse allegations
The High Court decision in M v M 1988 FLC 91-979 is relevant. The ratio of the High Court is as follows.
Firstly the Family Court is not under the same duty to resolve in a definitive way an allegation of sexual abuse such as a criminal court would. The resolution of such a determination is subservient and ancillary to the Court’s determination of what is in the best interests of a child.
Secondly the Court should not make a positive finding that sexual abuse is true unless it is so satisfied according to the civil standard of proof with due regard to Briginshaw v Briginshaw (1938) 60 CLR 336.
Thirdly if an allegation of sexual abuse has not been made out it does not follow that that conclusion determines the wider issue of what is in the child’s’ best interest. In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access is granted
Fourthly a court should not grant custody or access if it exposes a child to a risk of sexual abuse.
A second decision to the issue of the approach the Court should take if there is a positive finding of abuse made or a finding of unacceptable risk is the Full court of the Family Court’s decision in B v B (1993) FLC 92-357. That decision is not as relevant in this matter as M v M is. I have formed the view there was no sexual abuse by the father of the child nor is there an unacceptable risk to the child in spending time with or living with her father.
I have formed that view on the following basis.
I am unsure what the child said to her mother on 21 October 2005. Were the words “Dad touches me down there”. Were the words also or just “Dad tickles me down there” I am not sure. I am unable to determine what conversations the mother had with the child on the day or what the child was doing when these alleged words were said. The evidence of the disclosure is most unsatisfactory and cannot be relied upon by me as evidence of abuse.
The mother does not tell Dr Quadrio of the child’s alleged sexualised behaviour rubbing herself on chairs, putting her hands down her pants saying to her mother “dad lets me do it”. This is only reported to DOCS and JIRT. None of these allegations are in her affidavit. There is some mention to DR Quadrio of the child masturbating prior to leaving for Perth but the mother reports this has now ceased
There is no evidence observed or reported by any objective source of sexualised behaviour of the child, fear of her father or sexualised behaviour of the child with her father. In reality the objective evidence is to the contrary. There is no physical evidence of sexual interference. Dr Quadrio reports the child is relaxed and comfortable with her father and demonstrates no sexualised behaviour with him.
At the second paragraph page 38 of Dr Quadrio’s report she says,:
‘It is possible that the mother’s pre-occupation with her experience of abuse has coloured the interpretation of the relationship between the child and her father. That is she believes the child has been abused.
Dr Quadrio confirmed that the mother used the word “panicked” in October last year when the child made her disclosure to her and that the mother reported to Dr Quadrio that the child had said that “dad tickles her privates”. Dr Quadrio agreed that the mother could misinterpret what the child was saying, give it a sinister implication because of her pre-occupation, particularly when the evidence from a DOCS worker was that this event occurred after the child had had a bath and her father was drying her. Dr Quadrio conceded that the mother did not have to deliberately seek to alienate the child from the father for the child’s relationship with her father to be at risk, and perhaps the mother’s parenting style and personality would have the result of alienating the child from the father, whatever way, the child was at risk.
I find that due to the mother’s over concern with matters of abuse arising from her own traumatic and unresolved childhood abuse an innocent remark by her daughter has resulted in the child suffering questioning by many people, medical examination and a fracturing of the relationship with her father. The DOCS report of the child saying that daddy touched her while drying her after a bath is a more reasonable explanation of the disclosure than the mother’s explanation.
Having heard the mother and father in the witness box, having read each parties affidavits, observed Dr Quadrio give evidence, read her report and her findings that there is no risk of sexual or other abuse of this child whilst in her fathers care, I am satisfied there is no unacceptable risk of harm to this child whilst in her father’s care.
Other issues
In relation to the allegations the mother makes regarding BJC, K’s father, I accept her evidence. It is clear from the police report he is a thug, a violent, nasty vindictive man. Dr Quadrio casts some doubt on the violence perpetrated against the mother by BJC; however I accept what the mother says on this issue. It is clear she needed to get away from this man for her own safety as well as the child and K’s safety.
An issue arose concerning the child’s surname on the birth certificate and the documents tendered to Births, Deaths and Marriages, being father’s Exhibit 2. I formed the view that on the evidence that the parties probably did initial parts of the document and that the mother did scratch out the child’s last name of L and that the father may have initialled the document before it was scratched out. I make no finding of fact on this issue as it is confusing. What I propose to do is make an order that the child’s name, TL be used for all purposes.
I accept the father’s evidence he was unaware that the mother intended to permanently relocate to Perth. It did the mother no credit to make out that the father acquiesced or consented to her moving to Perth permanently. He would not have agreed and took steps when he found out, to have her return.
There was the issue of the mother’s insistence that no-one but the father attend contact changeover. I fail to understand why it was not reasonable to the mother for the child’s grandmother or the father’s girlfriend to be present at changeover. That attitude did the mother little credit in relation to her capacity to put the needs of the child before her own views of the father and his new partner.
The Law
The object and parts of the principles of the Family Law Act 1975 which applies to children is set out at Part 7 of the Act in section 60B. That section says as follows.
The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
That section goes on further to set out in detail the principles which underlie the objects and they are as follows:
2.(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The first task is to determine whether pursuant to s.61DA of the Act the parties will have equal shared parental responsibility for the child or whether that presumption is to be rebutted. I do not see any evidence in this hearing that would lead me to the view there should be a rebuttal of the presumption of equal shared parental responsibility. However before coming to that view I must assess the factors under section 60CC(2),(3)&(4) to make orders that are in a child’s best interest.
If I determine the parties are to have shared parental responsibility I am obligated to then look at whether the child should spend equal or substantial and significant time with each parent having regard to the presumption of equal shared parental responsibility.
The factors I must consider are set out in s65DAA (1), that is:
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Before making such a finding I will again need to address the section 60CC factors, however the following facts are relevant .The parents live a substantial distance apart. The child will be attending formal school in 2007. The mother lives in the Blue Mountains and the father in Sydney’s South. It is not reasonable or practicable for the child to spend equal time with her mother and father and attend one school due to the distance involved.
Similarly, in my deliberations concerning spending substantial and significant time as set out in s.65DAA (2), practicality i.e., the distance the parties live apart and an analysis of the relevant 60CC factors will need to be undertaken.
Turning now to the assessment of the factors under s.60CC (2) (3) and (4) of the Act which lists the matters that I must have regard to in making an order in the child’s best interest, that being my paramount consideration in all matters relating to children as set out in s60CA.
I determine what is in the child’s best interest by having regard to the following factors.
Under s.60CC(2) there are two primary considerations under the Act:
(a) the benefit of the child in having a meaningful relationship with both the child’s parents and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In relation to s60CC(2)(a) the child benefits from a meaningful relationship with her father, and Dr Quadrio in her report found that she is more closely emotionally attached to her father than her mother.
In the event the mother seeks counselling and therapy for herself and is able to overcome her difficulties in being emotionally available for her child, this child would benefit greatly from a meaningful relationship with her mother. However at this time he mother is emotionally detached from the child and her relationship with her is not secure.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence . This issue together with the effect on the child of separation from K are the matters that have caused me most concern.
I have found that there is no risk of sexual or other harm to the child in the care of the father.
In relation to the mother I have found there is a significant risk of physiological harm to the child in remaining in the primary care of the mother due to the mother’s pre-occupied parenting style and the child’s insecure emotional attachment to her mother or as described avoidant attachment. From Dr Quadrio’s evidence and both her and my observations of the mother, she is, through no fault of her own unable to be emotionally available to the child and this has resulted in an insecure attachment by the child to her primary carer.
The child needs to be protected from any psychological harm, be it intentional or otherwise, in either parents care. Dr Quadrio confirmed that the father is better equipped to provide for the child psychologically and emotionally than is the mother. Dr Quadrio said that if the mother had an acceptance of contact and the child saw her father for alternate weekends that might be sufficient contact with an emotionally focused parent to perhaps off set the problems of the mother. However for this to work it would require the parents to be no longer caught up in an on-going conflict.
That the parents will not be involved in any on-going conflict is unlikely for the following. Dr Quadrio said in cross examination;
If the mother had primary residence of the child and the father a regime of time with the child, then further along the path, it would be likely that further allegations would arise of sexual abuse because of the mother’s preoccupation with this issue.
Dr Quadrio agreed that this scenario eventuating was “a real risk”.
I must now address the additional matters and considerations under s.60CC(3) of the Act.
Section 60CC(3)(a). Wishes of the child. The child is too young to express any view of her wishes but as Dr Quadrio reports, she is very comfortable and relaxed in her father’s care. Dr Quadrio found the child was developing well but she had an avoidant attachment style with her mother which was also demonstrated in the attachment style of her younger brother K with the mother.
Section 60CC(3)(b).The nature of the relationship of the child with each of the parents and each other person. The child has a very close relationship with her father and a warm and close relationship with his family and his girlfriend, MP. Dr Quadrio found all those individuals to be child focussed, warm, caring and loving, and they placed great focus on their relationship with the child. The child was shown to be relaxed, animated, exploratory and engaging in their company.
In relation to the mother, Dr Quadrio formed the view that the child had a detached attachment style, and was either used to being left to her own devices or because the mother was unable to emotionally attach to her daughter due to her involvement in her own significant abuse issues in her life.
The child has a strong relationship with her young brother, K and there is no doubt they have formed a bond with each other.
The child has a similarly detached emotional relationship with her maternal grandmother with whom she spends significant time. These issues are of concern as the child’s mother has been her primary carer since her birth and she has had a somewhat disrupted relationship with her father and his family, yet despite that has a close and comfortable relationship with them.
Section 60CC(3)(c). The willingness and ability of each the parents to facilitate and encourage a close, continuing relationship between the child and the other parent. The father has the ability to foster the child’s relationship with her mother and brother. The father said he knows the mother cares for the child well however he did not behave in a mature and child focused way last year and particularly when the sexual abuse allegations were made against him .He did demean the mother in the child’s presence, cross examine the child and put the mother in a poor light whilst his daughter was in ear shot. I accept he was anxious himself at that time but this anxiety did affect his judgement as a parent.
The mother has promoted a relationship with the child and her father. However the real risk as Dr Quadrio has found is that due to her own significant psychological issues and focus upon her own sexual abuse and abuse issues in general, the mother will not be able to put her daughter’s needs to maintain a relationship with her father first due to her super sensitivity to issues of abuse. I do not see any malice or intention on the part of the mother in not being able to promote a relationship with the father, but rather it is as the result of her significant personality disturbance.
When the child said to her mother “Daddy touched me down there” the mother immediately said she took it to be sexual and inappropriate in meaning. There were many other explanations including the father touching her when he was drying her after her bath, a perfectly normal and natural thing that occurs in everyday life.
I find the mother’s reaction to matters of abuse, particularly sexual abuse has little child focus in that the mother acts as she sees appropriate having little or scant regard to the impact of her actions on her child that is having the child interviewed, medically examined, not seeing her father, seeing him in a supervised situation and then dropping the requirement for supervision The mother does not intentionally do these things. The father and his family are incorrect in their opinion of her motives.
Section 60CC(3)(d). The likely effect of any changes in the child’s circumstances including the likely effect on the child of separation from their parents. If I make orders that the child is to live with her father there will be a significant change in her care arrangements. In fact it will be cataclysmic. She will be separated from her mother, her primary carer, her maternal grandmother with whom she spends significant time and her little brother with whom she has a close relationship and her usual and known environment.
I will be placing her in the care of her father with whom she has not had significant periods of block time let alone ever lived with him. In 2007 the child will be attending big school and at a school she has no familiarity with or any prospect of a child she presently attends day care with also going to school with her. If she remains in the Blue Mountains it is more likely a child she knows from day care will attend school with her.
If I leave the child with her mother and her familiar surroundings, she will continue the regime she has been used to, her time with her father will slowly increase and there will be little significant change to her care.
Section 60CC(3)(e). Whether there is a practical difficulty and expense of a child spending time and communicating with a parent. This is a real difficulty for the parents and the child .The mother does not drive and lives in a somewhat remote area of the Blue Mountains. She relies on public transport. The father lives in Sydney’s South and has a car. There is expense and difficulty in the child spending time with her father whilst in her mothers care, and similarly in spending time with her mother whilst in her fathers care.
Section 60CC(3)(f). The capacity of each of the parents and any other person to provide for the needs of the child including emotional and intellectual needs. The father and his family have a much higher capacity to provide for this child’s emotional needs than the mother and her family. Dr Quadrio was impressed with the capacity of the paternal family to focus on the child, in particular the paternal grandmother.
I see the capacity of each of the parents to provide for her intellectual needs as somewhat similar and she is a bright child.
The description by Dr Quadrio of this child and her two year old brother sitting quietly in her office, an unfamiliar environment and playing with toys for 35 minutes and not seeking their mother’s attention speaks volumes of the avoidant emotional attachment of the child with her mother. Her mother simply is not emotionally available to the child or K.
Secondly on the issue of the mother’s capacity to provide for the child’s need to have a relationship with her father, Dr Quadrio said that if the mother has a preoccupation with abuse, then whether the child resides primarily with her or the father any time the mother spends with the child may also give rise to further allegations being made. Dr Quadrio agreed that this would be the likely scenario and that unless the mother undergoes some sought of real change of attitude or belief system it may be likely that there will be further allegations of abuse.
Dr Quadrio made this observation;
If the mother’s allegations are not well founded but sincerely believed and borne out of her anxiety and experiences of trauma, then I think she would need professional help to deal with that and that would take time. If she had made the allegations more in a deliberate attempt to alienate the child from the father or done deliberately or done maliciously, rather than borne out of her own anxiety and trauma then it is possible as a result of court proceedings that she would have kind of confronted by the consequences of her actions, that might have an effect on her.
This is of real concern. The mother’s preoccupation with her own childhood abuse has coloured her interpretation of the relationship between the child and her father. That is a significant and long term issue in that the mother has and will continue to read into normal activities and close physical contact between the father and the child some sexual activity or that the father is obtaining sexual gratification.
Dr Quadrio agreed with Mr Greenaway that her assessment of the father being child focussed as opposed to the mother was based upon her observation of him with the child rather than his history with the child. Dr Quadrio also criticised the father regarding his questioning of the child such as, “did mummy give you a bath last night, did you go to kindergarten etc?” Dr Quadrio agreed that such conduct was inappropriate and would undermine his relationship with his daughter over time if continued .However Dr Quadrio’s primary concern was that the mother was unable to provide for the child’s wider emotional and psychological needs at present and in the future.
The mother has the capacity to a high degree to provide for the child’s physical needs however, so does the father. It is the emotional and psychological needs that are of real concern.
Section 60CC(3)(g). The maturity, sex, lifestyle and background of the parents. Dr Quadrio confirmed the father had had problems with maturity in the past and there was to my observation a degree of immaturity with his reactions during the Court proceedings at times. At times in the past he has acted very immaturely towards the mother and in the presence of his daughter. He has been abusive to the mother, he has demeaned her and has caused her distress for no good reason other than to obtain evidence for this hearing, which evidence I found was against him. He has however been quite stable in the last few years as his work relationship history and commitment to his daughter attests.
The mother’s background is of concern. She was sexually abused as a child and went through the trauma of a court hearing and was not believed. That is an unresolved issue in her life. Her own mother is her strongest support base and she has her own significant mental health issues. The mother is emotionally isolated in comparison to the father who has a caring and loving family to support him.
The mother has had abusive relationships in the past and that is a concern to Dr Quadrio and this court in that it is a pattern of history that may repeat itself. The mother is currently in a relationship with a man named RM who did not come to court, did not prepare an affidavit, did not subject himself to cross-examination, and of whom the mother failed to disclose she was in a relationship with until the last day of the hearing. It is a concern that the mother did not see that this relationship that was a significant factor of which the Court should be notified.
Section 60CC(3)(i). Attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents. Both parents take their responsibility to the child seriously. The father pays child support, the mother has the children enrolled in childcare and is focussed on their intellectual needs, she is obviously endeavouring to improve herself by further study to obtain a job. Both these parents have a responsible attitude to their child.
Section 60CC(3)(j). Any family violence involving the child or a member of the child’s family. This child has been subjected to some family violence by BJC, K’s father, and some poor behaviour by her own father towards her mother when the child was present. However, I do not find that there is any family violence of such significance with the mother or the father that would impact on my decision.
Section 60CC(4). Whether the parents have failed to fulfil his or her responsibility to participate in making decisions about major long term issues. I find that these young parents have to the best of their ability fulfilled their responsibilities as a parent to their child. The father lacked insight in his belief that the mother intentionally blocked his time with the child. I do not agree with that view.
The mother has her own serious psychological difficulties which mean she is unavailable to her child and makes decisions which she believes are in the child’s best interests and not from a desire to restrict the father’s time with child. I have found many of the mother’s decisions not to have been in the best interests of the child and her capacity in this area is compromised by her own difficulties.
Decision
The compelling matters that I must balance are,
That the mother is not emotionally available for this child, that the child already has an insecure attachment to her mother and exhibits an avoidant detachment style which is also evident in her young brother K.
That the father who is well able to care for the child, is emotionally available to her and that she has a secure emotional attachment to him.
That the father and the child has a supportive, caring, loving family, and partner whom the child is very familiar and comfortable.
That the mother is somewhat isolated and her major support, being the maternal grandmother has significant mental health issues and the child is no more securely attached to her than she is to her mother.
That ordering the child to live with her father would be a significant change in her care arrangement and would separate her from her mother and brother K with whom she has always lived.
I have no doubt there will be some adjustment difficulties for this little girl in the immediate future in her living primarily with her father. However I must take a long term as well as a short term view. In those circumstances the only order I can make which is in the child’s best interest is that she live with her father.
To do other than make such an order places this child at significant risk of growing up with a parent who is unable to nurture or provide for her emotional needs resulting in the child being unable to form her own secure attachments in adolescence and adulthood similarly to that which her mother is subject.
The child cannot spend equal or substantial time with her mother due to the distance between the parties and that the mother does not have a car. Therefore alternate weekend and holiday time is the only practicable order with the father to do the travelling for the benefit of the child.
Where as here the father is clearly capable in every area to care for the child the order I make today is that the child live with the father.
Therefore I make orders as set out in the beginning of this judgment.
I certify that the preceding two hundred and forty-one (241) paragraphs are a true copy of the reasons for judgment of Henderson FM
Associate: D. Ferreira
Date: 22 December 2006
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