Earles and Highsmith

FAMILY COURT OF AUSTRALIA

EARLES & HIGHSMITH

[2016] FamCA 1012

FAMILY LAW – CHILDREN – where competing applications for residence – where mother has belief that child sexually abused by the father – where allegations by mother of family violence – where child in settled circumstances with the father – where child at risk of ongoing psychological abuse by the mother – where risk to child’s relationship with the father – where consideration of the child’s best interests leads to conclusion that child should live with father – where mother’s time should be limited as recommended by the single expert and as proposed by the Independent Children’s Lawyer – where in the child’s best interests time with the mother to be supervised until the child is 14

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(2)(b), 60CC(3), 61DA, 61DA(2), 61DA(4), 65DAA, 65DAA(6)

Goode & Goode [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GRR [2010] HCA 4

APPLICANT:

Ms Earles

RESPONDENT:

Mr Highsmith

INDEPENDENT CHILDREN’S LAWYER:

Ms Smyth

FILE NUMBER:

PAC

3528

2008

DATE DELIVERED:

25 November 2016

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

22, 23, 24, 25 and 26 August 2016 and 15 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Snelling

SOLICITOR FOR THE APPLICANT:

Phillip A Wilkins & Associates

COUNSEL FOR THE RESPONDENT:

Mr Blank

SOLICITOR FOR THE RESPONDENT:

Sarah Bevan Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Schroder

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Armstrong Legal

Orders

That the father have sole parental responsibility for the child, C born … 2007.
That the child live with the father.
That the child spend time with the mother supervised by a professional supervising agency for three hours on the first Saturday of each month at a venue considered appropriate by the supervision agency.
That the mother and father pay equally the cost of ongoing supervision.
That from 20 December 2017 upon the child turning 10 years of age the supervised time be increased to four hours and the mother be able to invite maternal relatives to attend such time including the maternal grandparents.
That from 20 December 2017 the supervision venue be as nominated by the mother on the proviso that the professional supervising agency consents to it being an appropriate venue for supervision in the event that such time is attended by a maternal relative or maternal relatives.
That the child have telephone time with the mother once each week and failing agreement each Wednesday between 6.00 pm and 7.00 pm with the father or his nominee to initiate the call for the child and such call may be on speakerphone and in the presence of the father.
That the mother be restrained from questioning the child about the child’s loyalties and wishes regarding time or about possible current or alleged past abuse or maltreatment of the child in the paternal home and the mother use her best endeavours to prevent maternal relatives from so doing and that maternal relatives upon providing an undertaking as provided for in the following order be restrained from questioning the child about the child’s loyalties and wishes regarding time or about possible current or alleged past abuse or maltreatment of the child in the paternal home.
That prior to time commencing with any maternal relatives nominated by the mother such maternal relatives must provide an undertaking, no later than six months from the date of these orders, to the Independent Children’s Lawyer in a form approved by the Independent Children’s Lawyer that they understand the need for supervision and undertake to comply with the restraint provided for in the previous order.
That the undertakings referred to in the previous order be filed by the Independent Children’s Lawyer with the Court as soon as practicable after being provided.
That a therapist for the child be appointed as nominated by the single expert Dr K and that a copy of the single expert reports by Dr K dated 16 February 2012 and 3 March 2016 be released to the therapist by the independent children’s lawyer together with a copy of these orders and reasons for judgment and the father upon receiving the therapist nomination do all things necessary to obtain if necessary a mental health referral for the child from the child’s general practitioner and ensure that the child attends all appointments nominated by the therapist and that he complies with all reasonable recommendations of the therapist including referral of the child to any other health practitioner.
That upon the child turning 14 years of age, the child’s time with the mother shall be in accordance with the child’s wishes as communicated to the mother and father by the appointed therapist and that such time be strictly adhered to by the mother and father and any wishes for varying such time be referred to the therapist for discussion with the child.
That in order to implement the previous order the mother and father are restrained from engaging with the child directly about her wishes and choices and all communication regarding the child’s wishes and choices are to be communicated through the therapist.
That prior to the commencement of time upon the child turning 14 years of age, the child shall meet with the therapist to discuss issues outlined in the single expert report by Dr K dated 3 March 2016 and, in particular, paragraph 346.11 therein.
That the Independent Children’s Lawyer release the single expert’s report dated 3 March 2016 to Dr Y, the mother’s treating therapist.
That the mother and father be restrained from making critical or derogatory remarks about the other in the presence or hearing of the child and use their best efforts to ensure that no other person denigrates the other or member of the other’s family to the child or within the child’s hearing.
That the mother and father be restrained from referring to the child by any other name other than her current name.
That the father shall do all things necessary to authorise any school that the child may attend from time to time to communicate with the mother about all matters relating to the child which the school usually advises parents such as school reports, newsletters and events at school and this order shall be sufficient authority for the mother to do so.
That the mother shall be able to attend school events to which parents are normally invited if the father invites her in writing, such writing to include SMS or email communication.
That both the mother and father shall advise the other as soon as practicable of any medical emergency involving the child including advising the name of any treating doctor, hospital or any prescription prescribed.
That the mother and father shall authorise any treating doctor or hospital to communicate with the other in relation to any treatment or medication.
That the father shall make the child available to the Independent Children’s Lawyer within seven days of these orders for the purpose of the Independent Children’s Lawyer explaining to the child the nature and effect and meaning of such orders.
That for the purposes of these orders, the appointment of the Independent Children’s Lawyer be extended for a further six month period from the date of such orders.
Pursuant to Section 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a party contravenes these Orders are included in these Orders, annexed hereto.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Earles & Highsmith has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3528 of 2008

Ms Earles

Applicant

And

Mr Highsmith

Respondent

REASONS FOR JUDGMENT

These are parenting proceedings commenced in 2008 between the applicant mother and the respondent father. At the time of the commencement of proceedings the subject child L was not yet 12 months of age.
The child L was born in 2007 and at the time of this trial was almost nine years of age.

Context: Federal Magistrates Court orders

It is of some utility to consider the prolonged history of this matter.
The parties commenced cohabitation in about June 2006.
They separated on a final basis on 26 March 2008.
In about June 2008, the mother obtained an Apprehended Violence Order for her protection as against the father for 12 months.
On 24 July 2008, the mother filed a parenting application in the then Federal Magistrates Court.
On 14 November 2008 interim orders were made by consent that provided for the father to spend supervised time with the child at the C Contact Centre in Suburb HP.
In May 2009, Dr E was appointed to prepare an expert report in those proceedings, but that order was discharged by consent on 21 August 2009 and Dr R was appointed to prepare the expert report.
Dr R provided a report dated 17 September 2009 recommending that the child live with the mother and that the father have regular time with the child. He further recommended that the father have counselling “to be able to manage and support the mother and cope with his situation” and that the mother have counselling to “manage her suspicious nature and anxiety”. In the event of future spurious allegations by the mother “it may be necessary for a change of residence”(Exh “G”)

Initial consent orders: October 2009

On 7 October 2009 Final Orders as to parenting were made by consent that provided in summary:
a)that the child to live with the mother;
b)that the mother and father have equal shared parental responsibility for the long term care, welfare and development of the child;
c)that the child spend time with the father twice weekly for a two year period and then his time with the child be progressed to overnight time in October 2011 and gradually increase thereafter to alternate weekends, an overnight in the other week and half school holidays.

The Second Application January 2011: the course of the current litigation

On 28 January 2011, the mother filed a further application in the Federal Magistrates Court together with a Notice of Child Abuse with allegations that the child had made disclosures on 20 January 2011 in relation to genital soreness. The child was alleged to have said “Daddy hurt me”.
On 22 February 2011, orders were made suspending the operation of the final orders made on 7 October 2009 pending investigation of the allegations.
On 23 May 2011, orders were made for the father to spend supervised day time with the child each Thursday and Sunday for a six hour period in the presence of either his partner or the paternal grandmother.
On 28 January 2011, the mother filed a further application in the Federal Magistrates Court together with a Notice of Child Abuse with allegations that the child had made disclosures on 20 January 2011 in relation to genital soreness. The child was alleged to have said “Daddy hurt me”.
On 22 February 2011 orders were made suspending the operation of the final orders made on 7 October 2009 pending investigation of the allegations.
Proceedings were that day transferred to this Court and an order was made for the appointment of an Independent Children’s Lawyer.
On 23 May 2011 orders were made:
a)for the father to spend supervised day time with the child each Thursday and Sunday for a six hour period in the presence of either his partner or the paternal grandmother;
b)the mother was restrained from taking the child to Ms U for therapy, counselling or otherwise until Ms U provided to the Independent Children’s Lawyer and the father’s solicitor her curriculum vitae and brief outline of therapy undertaken.
On 10 August 2011 orders were made appointing Dr K to prepare a further Single Expert report in the matter.
On 29 August 2011 orders were made:-
a)That the father spend time with the child each Saturday from 9.30 am to 11.30 am at the C Contact Service at Suburb HP and each Thursday from 10.30 am to 2.30 pm supervised by Ms N or another supervisor of W Family Services.
b)That Dr R’s initial report form part of the documentary evidence before Dr K.
c)That the mother be restrained from taking the child for further visits to Ms U for any therapy, counselling or otherwise unless authorised by the Court.
On 28 November 2011 further orders were made that provided:
a)that all existing Orders for the father to spend time with the child be suspended,
b)that the father spend supervised time with the child on Thursdays at the C Contact Centre at Suburb HP, and on specified dates up to the final hearing in February 2012 supervised by Ms N, with the father to bear Ms N’s entire costs on each of those occasions.

2012

On 17 February 2012, Dr K’s report was released to the parties.
On 20 February 2012, the final hearing before Collier J commenced.
Final orders were made on 8 October 2012 on which date his Honour delivered reasons for judgment. His Honour relevantly made orders in the following terms:
(1)That all previous Orders in respect of the child, L be and are hereby discharged.
(2)That the child live with the father.
(3)That the father collect the child from her preschool, or such other case where the child may be, forthwith after the making of these Orders.
(4)That the mother in no way communicate with or endeavour to communicate with the child’s preschool or the child so as to in any way prevent, interfere with or delay the father collecting the child.
(5)That the father have sole parental responsibility for the child.
(6)That the father keep the mother advised of the child’s progress and important upcoming decisions, including but not limited to matters of wellbeing, health, secular education, religious education and extracurricular activities. Such communication be via email or SMS transmission.
(7)That the mother be entitled to communicate with the father by email or SMS transmission any concerns she has or any suggestions she wishes to make for the progress and wellbeing of the child. The father shall give due consideration to such matters as are raised by the mother, but in that the father does not concur with the mother’s views, the father shall be the person to make the final determination or decision.
(8)That the father shall as soon as possible engage professional assistance for
(a)       The child;
(b)      Himself; and
(c)      His family members
(where necessary) to assist with the child’s transition into living in the father’s household.
(9)That the father shall notify the Independent Children’s Lawyer of the identity of any such professional and shall authorise such professional to speak with the Independent Children’s Lawyer as required by the Independent Children’s Lawyer. Such notification is to be made as soon as possible, but no later than fourteen (14) days from the date of these Orders.
(10)That the mother shall as soon as possible obtain therapeutic assistance to enable her to deal with the consequences imposed by these Orders and to deal with the situation so as to minimise the child’s exposure to her feelings arising from the consequences of these Orders.
(11)That the mother shall notify the Independent Children’s Lawyer of the identity of the person engaged to provide therapeutic intervention. Such notification is to be made as soon as possible, but no later than fourteen (14) days from the date of these Orders. The mother shall authorise that person to communicate with the Independent Children’s Lawyer as required by the Independent Children’s Lawyer. Further, that person shall indicate to the Independent Children’s Lawyer and the father, or his solicitors if they remain engaged, when it is appropriate that the mother no longer requires such intervention.
(12)That for a period of one (1) month from the date of these Orders, the mother shall spend no time with the child.
(13)That, thereafter, and commencing on Saturday 10 November 2012, providing that the mother has commenced and continues to undertake therapeutic intervention, she shall spend from 9.00 am to 5.00 pm each Saturday with the child for a period of three (3) months, which period shall continue to run through the Christmas school holidays commencing December 2012.
(14)That, for the purpose of the above Order, the mother shall collect the child from the father with the assistance of the C Contact Service at the commencement of such periods of time, and the mother shall return the child to the father at that contact centre at the conclusion of such periods of time.
(15)That the parties shall do all things, sign all documents and attend all interviews that may be required to engage and obtain the assistance of the C Contact Service in facilitating these Orders. Each party shall abide by all directions given by the members of the staff of the contact centre in this regard.
(16)That at the expiration of the three (3) month period as stipulated in Order 13 above, and provided her therapist has confirmed in writing to the Independent Children’s Lawyer that either (a) the mother is continuing to undertake her therapeutic intervention, or (b) such intervention is no longer necessary and in any event as evidenced in writing by the therapist, the mother shall thereafter spend time with the child during preschool or school terms each alternate weekend from after preschool or school on a Friday to before preschool or school a Monday. The first period of such time shall commence on Friday 1 February 2013.
(17)That in the event that the mother spends time with the child for the first half of any preschool or school holiday period (as hereinafter provided), the mother’s weekend time with the child shall recommence on the first weekend of the then ensuing preschool or school term.
(18)That in the event that the mother spends time with the child for the second half of any preschool or school holiday period (as hereinafter provided), the mother’s weekend time with the child shall recommence on the second weekend of the then ensuing preschool or school term.
(19)That the mother shall spend time with the child for one half of each preschool or school holiday period falling between terms 1 and 2, 2 and 3 and 3 and 4.   Failing agreement as to which half, the mother shall spend time with the child for the first half in years ending in an odd number and for the second half in years ending in an even number.
(20)That the first half of such holiday period for the purpose of Order 19 above shall mean the period commencing at 9.00 am on the day immediately after the last day of the immediately preceding term, and concluding at 6.00 pm on the Saturday nearest the mid point of the said holiday period. The second half shall mean the period commencing at 9.00 am on the Saturday nearest the mid point of the said holiday period and concluding at 6.00 pm on the Sunday falling immediately before the first day of the ensuing school term.
(21)That the mother shall spend time with the child on the 25 December 2012 from 2.00 pm to 8.00 pm.
(22)That for the school holiday period commencing December 2013, and each alternate year thereafter, the mother spend time with the child for one half of each such period, commencing at 9.00 am on the day immediately following the last day of term and concluding at 7.00 pm on the day marking the mid point of such holiday period. That, in the event of any dispute as to that changeover date, the father’s decision shall prevail.
(23)That for the school holiday period commencing December 2014, and each alternate year thereafter, the mother spend time with the child for one half of each such period, commencing at 9.00 am on the day marking the mid-point of such holiday period until 7.00 pm on the Sunday immediately prior to the first day of the then ensuing first school term.
(24)That commencing on Christmas Day 2013 and continuing each Christmas Day thereafter, the parent with whom the child would not otherwise be with in accordance with these Orders shall spend time with the child from 6.00 pm on 25 December to 6.00 pm on 26 December.
(25)That the mother shall spend time with the child on each of the child’s birthday and the mother’s birthday, if not otherwise falling on a day when the child would be spending time with the mother, from 3.00 pm to 7.00 pm.
(a)That for the child’s upcoming birthday on … 2012, the father shall deliver the child to the mother’s place of residence at the commencement of such time and shall collect the child from the mother’s place of residence at the conclusion of such time.
(26)That in the event that Mother’s Day falls on a day when the mother is not spending time with the child then the mother shall spend time with the child on the weekend during which Mother’s Day falls in lieu of the immediately preceding weekend upon which the mother would otherwise have spent time with the child.
(27)That in the event that Father’s Day shall fall on a weekend when the child would otherwise spend time with the mother, the father shall spend time with the child for the weekend during which Father’s Day falls in lieu of the weekend immediately preceding that weekend upon which the child would otherwise have lived with the father.
(28)That the father shall spend time with the child on each of the child’s birthday and the father’s birthday, if not otherwise falling on a day when the child would be living with the father, from 3.00 pm to 7.00 pm.
(29)That at the expiration of the period of three (3) months provided for in Order 13 above when the mother is not to otherwise collect the child from preschool or school, the father shall deliver the child to the mother at her place of residence at the commencement of each period of time, and the father shall collect the child from the mother at her place of residence at the conclusion of each period of time.
(30)That on the occasions when the child is to spend time with the father on special days, the father shall collect the child from the mother’s place of residence at the commencement of each such period of time and shall return the child to the mother’s place of residence at the conclusion of each such period of time.
(31)That on any occasion when the father either collects the child from the mother’s place of residence or returns the child to the mother’s place of residence, neither party shall endeavour to speak directly to the other party. Further, the father shall not endeavour to enter the residence of the mother.
(32)That the parties shall maintain clothing and personal effects for the child sufficient for the child’s needs, save and except for the father providing additional clothing for the child when the child spends time with the mother during school holiday periods.
(33)That each party shall provide to the other details of their telephone contact number and residential address, and shall advise the other party in the event of any change to such number or address.
(a)In the case of a change to a parties’ telephone contact number, notification shall be made within twenty-four (24) hours to the other party.
(b)In the case of a change to a parties’ residential address, notification shall be made within seven (7) days to the other party.
(34)That the father shall authorise any preschool or school that the child may attend from time to time to communicate with the mother about all matters relating to the child of which the school usually advises parents, such as school reports, newsletters and events at the school, and that the mother be at liberty to attend all preschool and school events to which parents are invited.
(35)That each party shall advise the other party as soon as possible of any medical emergency involving the child, including advising of the name of any treating doctor, hospital and of any medication prescribed. The father shall authorise any treating doctor or hospital to communicate with the mother in relation to any such treatment or medication.
(36)That when the child is living with the father, the mother shall be entitled to communicate with the child by telephone on each Monday, Wednesday and Thursday night between the hours of 6.00 pm and 7.00 pm. The father shall ensure that the child is available to take such calls on the nominated telephone number. The father shall ensure the child is given appropriate privacy during the course of those telephone calls between mother and child.
(37)That when the child is spending time with the mother, the father shall be entitled to communicate with the child by telephone:-
(a)Each Saturday night during school terms from 6.00 pm to 7.00 pm; and
(b)Each Monday, Wednesday and Thursday night during school holiday time from 6.00 pm to 7.00 pm.
The mother shall ensure that the child is available to take such calls on the nominated telephone number. The mother shall ensure the child is given appropriate privacy during the course of those telephone calls between father and child.
(38)That each party shall be entitled to provide to any therapist or health professional they may engage in respect of either professional assistance or therapy, and in the father’s case for the child and family members, a copy of Dr K’s report together with a copy of these reasons for Judgment.
(39)That for the purpose of the these Orders, I extend the appointment of the Independent Children’s Lawyer for a further six (6) month period from the date of these Orders.
(40)That the mother be and is hereby restrained from discussing with the child allegations of sexual abuse raised in these proceedings.
(41)That each party be and is hereby restrained from denigrating or criticising the other party, or members of that other parties’ family or household, in the presence or hearing of the other or the child, or causing, permitting or allowing any third party to do so.
(42)That the father shall make the child available to the Independent Children’s Lawyer within seven (7) days of the date of these Orders for the purpose of the Independent Children’s Lawyer explaining to the child the nature, effect and meaning of these Orders.
(43)That the father be and is hereby restrained from discussing or endeavouring to explain these Orders to the child, save and except to inform the child that the Court has ordered that the child is to live with the father.

After the first trial: The Appeal

At the time of final orders made by Collier J the maternal grandmother removed the child to Queensland in circumstances discussed below.
By Notice of Appeal filed on 9 October 2012 (as amended on 15 November 2012), the mother appealed the parenting orders made on 8 October 2012.
Pending determination of the Appeal proceedings, orders were made as to the mother’s time with the child and as to a partial stay of the orders made by Collier J.

2013

On 15 April 2013 it was ordered by consent:
(1)That, pending further order the child [L] spend time with the mother:
(a)each Saturday for three (3) hours supervised by the [DAA Group], pending the parties being offered supervised time at the [SC Centre];
(b)in the event that the parties are offered supervised time at the [SC Centre], for up to three (3) hours at that Centre or such time as the Centre can make available.
(2)That for the purpose of time spent in accordance with order 1(a) the mother shall meet the costs of the [DAA Group] with the father paying the cost of a report from every third visit to an amount not more than $137.50.
(3)That the [DAA Group] is requested to prepare a report from every third supervised visit.
(4)That upon the mother engaging the [DAA Group] she shall provide the parties with the name and contact details of the proposed [DAA Group] supervisor.
(5)That the [DAA Group] be provided with a copy of the orders of Collier J of 8 October 2012 (including the recovery order) and a copy of these orders.
(6)That for the purpose of time spent in accordance with order 1(b) each party shall attend upon the [SC Centre] to complete the intake process as soon as possible and each party shall meet the costs associated with the Intake process.
(7)That [L] shall communicate with her mother by telephone each Monday, Wednesday and Thursday night for 20 minutes with the phone call to commence between 6:00 pm and 7:00 pm on the father’s mobile number.
(8)That the parties are to equally share the cost of the time [L] is to spend with the mother pursuant to order 1(b) above.
On 15 July 2013 it was further ordered by consent:
That pending further order and until 3 September 2013:
(1)The mother spend time with [L] under the supervision of the Child Dispute Service at the Family Court, Parramatta from 2.30 pm to 4.00 pm on the following dates:
(a)30 July 2013;
(b)9 August 2013; and
(c)29 August 2013.
(2)That for the facilitation of order (1) above, the father shall deliver and collect the child from the Child Dispute Service.
(3)That the mother spend an additional period of time with the child [L]… supervised by [RP Group] on 17 August 2013 from 10.00 am to 1.00 pm.
(4)That for the purpose of facilitating order 3 above each party shall do the following:
(a)Contact [RP Group] on … within 24 hours;
(b)Complete all necessary documents and attend any necessary intake assessments or interviews to enable the use of the service;
(c)Meet one half of the costs of the visit on 17 August 2013, with each party to pay $142.50 to the service at the request of the service.
(5)That for the purpose of [these orders] the mother is to attend the visit with the child to the exclusion of any other person.
(6)…
(7)That orders 1 and 2, 3, 4, 5 and 6 and 8 of the orders made by the Family Court on 15 April 2013 be suspended.
On 12 November 2013 further orders were relevantly made as follows:
…
(4)That the orders made on 15 April 2013 and 15 July 2013 are discharged.
(5)That orders 12 – 46 of the orders of 8 October 2012 are stayed pending the hearing of the appeals currently pending.

2014

Subsequently on the application of the parties and Independent Children’s Lawyer on 12 June 2014, orders were made by consent in the Full Court whereby the Appeal and the father’s Cross Appeal were allowed:
(1)That the appeal against orders made by Justice Collier on 8 October 2012 and the cross appeal in relation to those orders are allowed and subject to order 4 of these orders the orders are set aside.
(2)Pending further hearing and determination of the proceedings between the parties or until further order, orders 1 to 12 inclusive and orders 33 to 43 inclusive made by Justice Collier on 8 October 2012 remain in force.
(3)It is noted that the appellant/cross respondent is at liberty to file an interim and final application for further orders.
(4)The matter be remitted for rehearing before a judge.
It was further ordered on 12 June 2014 that:
(1)Orders made 12 November 2013 shall continue,
(2)That for the avoidance of doubt the child shall live with the father,
(3)That the mother be at liberty to file an interim and final application for further orders.

2015

On 13 April 2015 orders were made in the following terms:
(1)Pursuant to s 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the child [L]… and the Legal Aid Commission of New South Wales is requested to provide such representation.
(2)The parties are to provide to the Parramatta Office of the Legal Aid Commission of NSW … forthwith copies of all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.
(3)Leave is granted to the Independent Children’s Lawyer to issue such subpoena as they consider relevant to the issues before the Court.
(4)Leave is granted to the Independent Children’s Lawyer to have photocopy access to all documents produced on subpoena in these proceedings.
(5)Leave is granted to the Independent Children’s Lawyer to re-list the matter on short notice by communication with the Court in Chambers in appropriate circumstances.
(6)The matter is adjourned to Monday 25 May 2015 at 9:30am for a further Case Management hearing.
(7)This matter remain in the docket of Justice Foster with a view to the matter being listed for final hearing as soon as practicable.
IT IS NOTED THAT:
A.On the adjourned date the Court will seek some guidance from the Independent Children’s Lawyer as to a prospective Chapter 15 Expert.
B.It is further noted that it is in the contemplation of the Court at this stage that the parties will engage in some discussion as to the Mother’s time with the child which presently remains under institutional supervision.
Delays were occasioned in the appointment of an Independent Children’s Lawyer by Legal Aid NSW.
On 21 July 2015 Dr K was by consent appointed Single Expert in the proceedings for the purpose of a report being provided to the Court.
Delays were then occasioned in the obtaining of Dr K’s report due to funding difficulties.

2016

The Single Expert Report of Dr K was released to the parties on 7 March 2016.
Directions for trial were made on 18 April 2016 and the trial was subsequently listed to commence on 23 August 2016.
The trial concluded with submissions being discretely heard on 15 September 2016 with judgment then reserved to a date to be fixed.

Documents relied on

At trial the mother relied on:
a)The Amended Application filed 16 March 2015;
b)Her affidavit filed 25 July 2016;
c)Affidavit of Mrs Earles, the maternal grandmother filed 22 July 2016;
d)Affidavit of Ms J filed 22 July 2016;
e)Affidavit of Ms P filed 22 July 2016;
f)Affidavit of Helen Moore filed 22 July 2016;
g)Affidavit of Mr SB filed 22 July 2016;
h)Affidavit of Dr G filed 22 July 2016;
i)Affidavit of Dr Y, psychiatrist, filed 25 July 2016;
j)Affidavit of Ms U, psychologist filed 26 July 2016.
At trial the father relied on:
a)Response filed 9 June 2015;
b)His affidavit filed 25 July 2016;
c)Affidavit of Ms A filed 25 July 2016.

Orders sought at trial: the issues

The mother: Child to live with her

In final submissions the mother sought orders in summary that provided:
a)that the mother have sole parental responsibility for the child;
b)that the child live with the mother;
c)that the child spend time with the father once per month for a period of three to six hours supervised with the cost of such supervision paid equally by the mother and the father;
d)that the child receive therapeutic intervention with a nominated therapist specifically dealing with domestic violence and alleged child sexual abuse;
e)that the father be restrained from approaching within 500 metres of the mother’s residence or place of work and is not permitted or allowed or cause any third person to do so;
f)that the child have telephone communication with the father two nights per week between 6.00 pm and 7.00 pm for no less than 10 minutes;
g)that the mother and father be restrained from denigrating the other in the presence or hearing of the child or permitting, causing or allowing any third person to do so;
h)that the mother and father be restrained from discussing the court proceedings with the child or permitting, causing or allowing any third person to do so;
i)that the mother keep the father informed of the child’s health including but not limited to allergies, admissions to hospitals, any specialist appointments and/or treatment and any medical emergency.
In the alternative, in the event that the child remain living with the father, the mother sought orders in summary as follows:
a)that the child spend time with the mother each alternate Saturday for a period of three to six hours supervised;
b)that otherwise the child spend additional supervised time with the mother for a period of three to six hours on specific occasions including but not limited to Easter Sunday, Mother’s Day, the mother’s birthday, the child’s birthday and Christmas;
c)that the child have telephone communication with the mother each Monday and Wednesday between 6.00 pm and 7.00 pm for no less than 10 minutes and that the father shall not interrupted such telephone communication, that the mother be permitted to allow third parties to speak to the child, that upon the child attaining 11 years of age she be provided with a mobile phone with the child able to communicate with the mother on that phone as she wishes;
d)that the mother be permitted to attend school events to which parents are normally invited;
e)that the child be enrolled at school with a hyphenated surname;
f)that the child’s school be authorised to provide to the mother school newsletters, event invitations and the child’s reports;
g)that the child is to attend upon a therapist specifically dealing with domestic violence and alleged child sexual abuse;
h)that the father be restrained from approaching within 500 metres of the mother’s residence or place of work including periods the child is spending time with the mother and shall not permit or cause or allow any third person to do so;
i)that the mother and father be restrained from denigrating the other in the presence or hearing of the child or from permitting, causing or allowing any third person to do so;
j)that the mother and father be restrained from discussing the court proceedings with the child or permitting, causing or allowing any third person to do so;
k)that the father shall keep the mother informed of the child’s health including but not limited to allergies, admissions to hospitals, any specialist appointments and/or treatment and any medical emergency;
l)that the father shall provide the authority to any treating doctors, specialist or medical practitioner that the child may attend to permit the mother to discuss with that practitioner the child’s health;
m)that the mother shall be at liberty to attend hospital in the event the child suffers a medical emergency or admission to hospital;
n)that the father is to keep the mother informed of his mobile phone number and address and notify the mother of any change thereto;
o)that in the event the mother changes her residence she shall inform any appointed supervisor and the child’s therapist.

The father: Child to live with him

The father in final submissions sought orders as set out in his Outline of Case (Exh “E”) that in summary provided:
a)that the father have sole parental responsibility for the child;
b)that the child live with the father;
c)that the child spend time with the mother supervised for not less than three hours each alternate week and that the mother and father pay equally the cost of such supervision;
d)that the child have telephone communication with the mother each Monday, Wednesday and Thursday evening for up to 30 minutes between the hours of 6.00 pm and 7.00 pm with the mother to call the father on his mobile phone and the father to ensure the phone and the child are available to take the calls;
e)that the father keep the mother advised as to the child’s progress and important upcoming decisions including but not limited to matters of well-being, health, education, religious education and extracurricular activities and that such communication be by email or SMS;
f)that the mother and father keep each other informed of telephone numbers and residential addresses and notify the other promptly of any change;
g)that the mother and father be restrained from denigrating the other or members of the other’s family to the child or within her hearing and use their best efforts to ensure that no other person denigrates the other or member of the other’s family to the child or within her hearing;
h)that the mother be restrained from discussing these proceedings or matters at issue in these proceedings including but not limited to allegations of sexual abuse and violence with or within the hearing of the child and staff at any school the child attends or parents or carers of other children at any school the child attends.

The Independent Children’s Lawyer: supportive of the father’s application

The Independent Children’s Lawyer in written final submissions (Exh “W”) supported orders that provided in summary as follows:
a)that the father have sole parental responsibility for the child;
b)that the child live with the father;
c)that the child spend supervised time with the mother for a period of two hours on the first Saturday of each calendar month with such time to be supervised by a professional supervision agency nominated by the mother;
d)that from 20 December 2017 and upon the child turning 10 years of age the supervised time be increased to four hours and the mother be unable to invite maternal relatives to attend such time including the maternal grandparents;
e)that from 20 December 2017 the supervision venue be as nominated by the mother on the proviso that the professional supervising agency consents to it being an appropriate venue for supervision;
f)that the mother and maternal relatives be restrained from questioning the child about the child’s loyalties and wishes regarding time or about possible current or alleged past abuse or maltreatment of the child in the paternal home;
g)that prior to time commencing the mother and any relatives nominated by her must provide an undertaking to the Independent Children’s Lawyer that they understand the need for supervision and undertake to comply with the restraint provided for in the previous order;
h)that the undertakings referred to in the previous order be filed by the Independent Children’s Lawyer with the Court;
i)that a therapist to be appointed as nominated by the single expert Dr K and that a copy of the single expert reports by Dr K dated 16 February 2012 and 3 March 2016 be released to the therapist together with a copy of the final orders;
j)that upon the child turning 14 years of age, the child’s time with the mother shall be in accordance with the child’s wishes as communicated to the mother and father by the appointed therapist and that such time be strictly adhered to by the mother and father and any wishes of varying the time be referred to the therapist for discussion with the child;
k)that in order to implement the previous order the mother and father be restrained from engaging the child directly about her wishes and choices and all communication regarding the child’s wishes and choices is to be communicated through the therapist;
l)that prior to the commencement of time upon the child turning 14 years of age the child shall meet with the therapist to discuss issues outlined in the single expert report by Dr K dated 3 March 2016 and in particular paragraph 346.11 therein;
m)that the child have telephone time with the mother once each week and failing agreement each Wednesday between 6.00 pm and 7.00 pm with the child to initiate the call and the call to be on speakerphone and in the presence of the father;
n)that the Independent Children’s Lawyer release the single expert’s report dated 3 March 2016 to Dr Y the mother’s treating therapist;
o)that the mother and father be restrained from making critical or derogatory remarks about the other in the presence or hearing of the child;
p)that the mother and father be restrained from referring to the child by any other name other than (her current name);
q)that the father shall do all things necessary to authorise any school that the child may attend from time to time to communicate with the mother about all matters relating to the child which the school usually advises parents such as school reports, newsletters and events at school;
r)that the mother shall be able to attend school events to which parents are normally invited if the father invites her in writing;
s)that both the mother and father shall advise the other as soon as practicable of any medical emergency involving the child including advising the name of any treating doctor, hospital or any prescription prescribed;
t)that the mother and father shall authorise any treating doctor or hospital to communicate with the other in relation to such treatment or medication;
u)that the father shall make the child available to the Independent Children’s Lawyer within seven days of final orders for the purpose of the Independent Children’s Lawyer explaining to the child the nature and effect and meaning of such orders;
v)that for the purposes of final orders the appointment of the Independent Children’s Lawyer be extended for a further three month period from the date of such orders.

Short Background

The mother is presently aged 37 and the father aged 39.
The father re‑partnered in January 2009 with Ms A. Despite plans to marry they have not done so as yet. The father works part-time and he and his partner attend to the child’s needs.
The mother has not re‑partnered. She works as a manager.
The subject child is the only child of their short relationship as referred to above.
Prior to orders made on 8 October 2012 the mother had been the primary caregiver for the child.
On the day prior to final orders the mother had left the child in the care of the maternal grandmother in circumstances that will be referred to below.
Subsequent to final orders on 8 October 2012 the child did not move into the care of the father as provided for in those orders and on 8 October 2012 a recovery order was made to locate and deliver the child to the father. On that day an order was made for the arrest of the mother should she be found in the presence of the child.

The whereabouts of the child were unknown for a period of time but the child was subsequently recovered when in the presence of the maternal grandmother in Queensland on 27 November 2012, some seven weeks after final orders.
Consequently, the mother had no time with the child from 7 October 2012 until August 2013 and the mother continues to have limited time with the child under supervision in terms of orders that are currently in place as referred to above.

The relationship

The mother and father resided in a de facto relationship for just short of two years during which time there was a separation from March 2007 until about July 2007.
The mother alleges that during this relationship she was subject to verbal, physical and psychological domestic violence at the hands of the father. It is readily apparent that the relationship between the mother and father was combative and conflictual.
She specifically refers to an incident in February 2007 when she was punched and kicked by the father in circumstances where the police attended at the parties’ premises.
The mother asserts that the father during their relationship was controlling, attending at or nearby her place of employment on “many occasions” and sought to isolate the mother from her friends. The mother refers to incidents in October 2007 and December 2007 where the father was abusive and aggressive towards her including saying in early December 2007 in relation to their expected child “I hope the baby dies because she will turn out just like you”.
Subsequent to the birth of the child and on New Year’s Eve 2007, the mother asserts a further incident of aggression during which she was pushed by the father.
The mother asserts that in early March 2008 she on two occasions observed the father with an erection whist he was in the presence of the child. She appears to have made no third party complaint. She facilitated the father’s time with the child regularly after separation and consented to final orders in October 2009.
The mother and father finally separated in late March 2008 at which time the child was just three months of age.

Separation March 2008

Conflict and communication difficulties between the parties continued after they separated with the mother asserting ongoing abuse and aggression from the father.

Apprehended Violence Proceedings

In early April 2008 an application for an apprehended domestic violence order was sought on behalf of the mother. That application was first listed before the Local Court at Suburb T on 29 April 2008.
The grounds for the application are instructive. The mother alleged that the father during their relationship had assaulted her, threatened her and damaged her property. She further alleged that she had permitted the father to come to her new residence to see the child most days sometimes twice a day. She complained that the father turned up whenever he wanted to and harassed her. She further complained that the father had followed other people into her security block and knocked on her door and made numerous phone calls to her mobile phone and that he stands outside her unit block, calls out to her from below.
The mother further alleged that on 18 April 2008 at about 9.30 am she allowed the father into her premises. He commenced to go through her mobile phone at which time an argument ensued and the mother demanded that the father leave. The father left her premises but stayed out the front of the unit block. The father later followed the mother to the nearby post office and then to the local supermarket. The father returned to her premises at about 6.00 pm and stood outside the premises calling to her. The mother then says she received a message on her mobile phone from the father stating: “if you don’t let me in now this will backfire on you. I will take her away from you”.
The apprehended violence proceedings were resolved with a final apprehended violence order made on 23 June 2008 that was later varied on 27 June 2008 to be in the following terms:
a)that the defendant (the father) must not assault, molest, harass, threaten or otherwise interfere with the protected person or a person with whom the protected person has a domestic relationship;
b)that the defendant must not engage in any other conduct that intimidates the protected person or a person with whom the protected person has a domestic relationship;
c)that the defendant must not stalk the protected person or a person with whom the protected person has a domestic relationship;
d)that the defendant must not go within 200 metres of the premises at which the protected person may from time to time reside or work;
e)that the defendant must not approach or contact the protected person by any means whatsoever except through the defendant’s legal representative or as authorised by a parenting order under the Family Law Act 1975 or by specific agreement for contact.
The father, notwithstanding the terms of the apprehended violence order, continued to attend at the mother’s home or her parent’s home or nearby. The mother also received numerous unidentified calls on her mobile phone. The mother made further complaint to the police.

Breach of the AVO

The father was subsequently arrested at Suburb BB police station, charged with seven breaches of the apprehended violence order and refused bail. The father was released on bail at the Local Court Suburb T on 25 July 2008.
The proceedings took some time until final hearing and on 26 November 2011 at Suburb EE Local Court the father entered a plea of guilty. The father was sentenced to a period of eight months imprisonment with that sentence suspended upon entering into a bond to be of good behaviour for a period of eight months and accepting the supervision of the New South Wales Probation and Parole Service and obeying all reasonable directions of that service for counselling, educational development or drug and alcohol rehabilitation (Exh “Q”).
The father lodged an appeal on the grounds of severity and on 19 January 2009 his appeal to the Sydney District Court was dismissed and his conviction and sentence confirmed.
It might be thought that the father was dealt with somewhat harshly by the Local Court magistrate at Suburb EE but a perusal of his police antecedents (Exh “Q”) revealed that:
a)on 14 December 2004 at B Town Local Court he was convicted of the offence of contravening an apprehended domestic violence order and ordered to enter into a good behaviour bond for a period of 18 months with conditions not to assault, molest, harass or otherwise interfere with (a named person with whom he had a previous domestic relationship) or incite any third person to do so and to comply with the conditions of the apprehended domestic violence order.
b)thereafter on 6 May 2005 the father was again convicted at B Town Local Court of the offence of contravening an apprehended domestic violence order and again ordered to enter into a good behaviour bond for a period of 18 months upon the same conditions as previously ordered and upon further conditions not to contact in any way (the same named person with whom he had a previous domestic relationship) and not to attend B Town except for family functions.

Orders: October 2009

It is in the context of the parties’ relationship as discussed above that consent orders were made as to parenting arrangements in October 2009.
The mother was clearly unhappy about the orders made by consent and expressed her misgivings as to the orders being in the best interests of the child over the discrete issue of some additional time for the child with the father (Exh “J”).
Subsequent to the orders, the mother and father used a communication book for about 12 months (Exh “I”); it records a litany of complaints by the mother about the father. The father ceased using the book in January 2010. The nature of the parents’ relationship clearly was degenerating and the mother conceded that she maintained the book unilaterally for a period “to use in evidence”.

The mother’s complaints after October 2009

The mother alleges that on “numerous occasions” since the orders of October 2009 the child has returned from time with the father complaining of soreness in the genital and anal regions. At the commencement of this period the child was not yet two years of age but the mother asserts that when questioned by her the child said “daddy did it”.
The mother made no complaint, did not speak to the father about it and continued to facilitate the child’s time with the father.

April 2010

In April 2010 the mother says that the child returned from time with the father and the next day said “daddy lick bum”. To the mother’s observation the child had had unusual rash “over her vagina”.
In oral evidence the mother was asked if she accepted what the child said. She replied: “No, the child pointed to her vagina”. The mother made no complaint and continued to make the child available for time with the father on alternate weekends.
On 22 April 2010 a friend of the mother, Ms J, says that she attended at the mother’s home on request from the mother. She observed a rash, (little red spots) on the child’s vaginal area. The mother said “Oh man, what’s this?” (Exh “K”) and heard the child say “Daddy did it”. This incident is not referred to at all by the mother yet the maternal grandmother asserts that the mother rang her about it.
The mother rang her friend Ms J who came over and said “if it happens again take her to the doctor and have it documented as she should not associate daddy with her private parts”. Ms J then mentioned to the mother a service that specialises in doll play in regard to sexual abuse (Exh “K”). The mother took no action and continued to make the child available for time with the father.
It was on 5 May 2010, about two weeks after these observations, that the child was prescribed medicated ointment by her doctor.

4-5 May 2010

The child was returned from time with the father. After a four hour afternoon sleep and when bathing she complained that her vagina was sore, the mother noticed a “small rash” (Exh “K”).
The next day the rash was still present. The mother put on Aristocort cream. Later the child complained again of soreness (Exh “K”).
The mother took the child to her usual medical centre but was unable to see a doctor. For the first time the mother then took the child to the DD Medical Centre.
From the Centre records the doctor’s notes (Exh “R”) record:
rash pubic mound… Came back from the fathers with unusual rash, appears to be low-grade folliculitis…. Unable to ascertain history from child.
A prescription was issued for Kenacomb ointment to be applied twice a day to the affected area.
The mother in oral evidence asserts that she told the doctor of the child’s previous complaints about the father. That assertion is not supported by the clinical notes (Exh “R”). The mother applied the prescribed ointment and the rash had “disappeared” the next day 6 May 2010 (Exh “K”).
The child was made available to the father that day. The mother did not inform him of the doctor’s visit (Exh “K”).

1 July 2010

On 1 July 2010 the mother collected the child after time with the father. She says the child was complaining “of sore bottom, mummy”. Her diary records the child just said “sore”. The mother and child were at McDonald’s.
The mother drove straight to the doctor’s surgery and it was there that she was requested to remove the child’s soiled pants and undies.
There is no evidence as to when the bowel movement may have occurred whilst in the care of the father or after collection by the mother. The father denies it was when the child was in his care.
The doctor’s note records:
…large faeces uncleaned around anus, small nappy rash, no evidence of sexual abuse, needs better toileting hygiene, reassure there is no evidence of sexual abuse clinically.
There is an inference from the note that the issue of sexual abuse was raised by the mother with the child’s doctor. There is no clear indication as to why such an issue would be raised in the context of this consultation. The mother’s diary makes no reference to such an issue at this time.
The mother says that by July 2010 the child had not had any recent issues with toileting, had been fully toilet trained for some time and was no longer wearing nappies.
The child was subsequently seen by her doctor on 14 July, 19 July, 26 July and 24 September 2010 with nothing of any note in the context of these proceedings recorded. The mother also presented the child to GG Hospital on 24 September 2010 with croup and diarrhoea (Exh “R”).
During this period the mother continued to make the child available for time with the father.

17 October 2010

The mother says that on 17 October 2010 the child returned from time with the father and said “daddy lick bum”. The father also reports that the child has said similar words to him. A similar “disclosure” was allegedly made to the maternal grandmother in June 2011.
Again the mother made no complaint, did not speak to the father about it and the child continued to spend time with the father.

16 December 2010

The mother reports that after collecting the child from her time with the father the child said “I weed daddy’s bed”. The mother then said to the child “did you wear a nappy to bed”. The child replied “no clothes”. The mother then asked the child if “daddy had any clothes on” to which the child replied “no, daddy weed on me”, indicating her genital area.
The mother continued to make the child available to the father, made no complaint to anyone and somewhat perplexingly did not speak to the father about the seemingly disquieting allegation by the child. The mother thought the child “may be confused” but that maybe “the father did wee on her”.

20 January 2011

The mother reports that she collected the child at about 12.30 pm (Exh “K”) after about three hours with the father.
Later that evening she was bathing the child who complained of being “sore”. The mother could see no visible reason why. The mother asked the child where it was sore and the child responded by pointing to her vagina and saying “daddy hurt me”. The mother asked the child how and the child “frantically moved her hand back and forth from her vagina”. The mother could see no rash on the outside of the child’s genitals and then looked inside the child’s vagina and to her observation the area was swollen and red.
The mother was of the view that the child had been sexually abused.
The mother rang her neighbour Ms P. Ms P says the mother described a rash on the child’s vaginal area and that she told the mother to take the child for medical attention.
The following day 21 January 2011, the mother attended upon the child’s doctor. The child reported to the doctor:
…that her dad kissed her in the genital area (point the area with the fingers and made a sucking sound by mouth) and dad put first little finger there and then another big finger and it was sore.
The mother also mentioned to the doctor that the child had said to her previously that her dad had peed on her. When asked, the child said yes and pointed to her genital area. The notes record:
when asked, she (the child) says she likes her dad but sometimes he scarred (sic) her.
The medical notes reveal that the mother then reported the child “showing abnormal behaviours”: wetting the bed and her underwear sometimes, not concentrating on things, not wanting to sleep in her own bed, scared of big lion or something like that”. The father says that the child maybe on one occasion wet the bed when with him.
On examination the doctor reported “redness in the introitus” and “mild swelling at the sides of introitus with redness”. Urine and Introital swabs were taken for testing with no indication of infection.
The notes report the mother as:
very teary and thinks Family Court will not take it seriously and can interpret a different way. Very upset and worried.
The medical practitioner made a telephone call to the Department of Family and Community Services speaking with a Ms FF and obtaining a report number. This was the first occasion of any Departmental complaint by the mother.

24-25 January 2011

The mother on 24 January 2011 again presented the child to her doctor expressing concerns that the child was still complaining of “vulvaovag burning”. The mother reported that she had not used any anti-inflammatory or antifungal cream on the child recently. The reason for the visit was reported as “suspected sexual abuse”. The child was prescribed Hydrozole cream to be applied twice daily.
The following day, 25 January 2011, when attending upon her medical practitioner the mother reported that the child’s “pain improved”. It was also noted that the child had been seen by the Child Protection Unit (See below)

3 February 2011

On this day the child and the mother were visiting their neighbour Ms P and during general conversation the child interrupted and said “daddy put his finger up my bum and hurt me”. This “disclosure” was allegedly witnessed by Ms P who gave evidence. The mother’s diary note (Exh “M”) records the child saying “daddy put finger up my bum”.

The evidence of EP

The reliability of Ms P’s evidence in general was significantly undermined by her disclosure that the mother helped prepare her affidavit. Ms P conceded that the mother “reminded me of things, we talked about events. I wrote it down. The mother typed it up for me”. The mother she says retained Ms P’s notes: they were not produced. Some aspects of her affidavit Ms P concedes are clearly wrong and it was not read “well” by her when signing as she was “concentrating on other things”.
Ms P appears significantly invested in the issues: attending changeovers from 2009 to 2012. Her diary entries as to her asserted recollections are no longer available. Ms P attended court with the mother on 8 October 2012 and her evidence as to what happened after delivery of judgment reveals that the mother at no time was interested in attending at the maternal grandmother’s home, going first to Ms P’s home and then to her own at about 9.00 pm that night.

Departmental Investigations

The mother and child attended the Child Protection Unit at GG Hospital on 24 January 2011.
An assessment report was prepared by the Child Protection Unit and dated 27 January 2011 (Exh “S”). The mother provided a presenting history mostly consistent with the information referred to above but including an additional alleged disclosure by the child that “in the past (her father) hit her”.
The child was examined by two doctors at the Child Protection Unit on 24 January 2011. It is noted that this is the same day that the mother presented the child again to the child’s medical practitioner asserting that the child was still complaining of “burning”. The child’s anogenital examination at the Child Protection Unit was normal with the assessment neither confirming nor denying sexual abuse.
The report noted:
It is concerning that (the child) is unable to move between households without appropriate communication between her parents to exclude other causes of erythema (redness) of the genitalia. She appears to be indicating a level of stress as evidenced by reported behavioural changes, and may have been exposed to domestic violence. A full family assessment would be recommended but may already have been undertaken by the Family Court.
The child was interviewed by the JIRT team at Suburb T on the afternoon of 25 January 2011 (Exh “U”). Due to the child’s young age and limited vocabulary the child was unable “to establish between truth and lies”. Surprisingly, one of the interviewing officers asked the child the following question:
Someone has told me that your dad has hurt you down there (pointing to the vagina area), did that happen?
The child responded to the suggestion thus:
Yes he hurt my bottom and he hurt me down there (pointing to the vagina area).
Otherwise, it appears that the child was non-responsive and unwilling to engage with the interviewers.

The child was referred to II Centre: “A sexual assault counselling service for children, young people and their non-offending family members”. The mother was later informed that the service could not see the child as the allegations were “unsubstantiated” (Exh “F”).
On 28 January 2011 the mother was informed that any JIRT criminal investigation had ceased due to lack of evidence (Exh “L”)
On 16 February 2011 the father was interviewed by JIRT and denied the mother’s allegations as to sexual abuse (Exh “N”). He says this was the first occasion that he became aware of the mother’s allegations.
The mother contacted the Child Protection Unit again on 8 April 2011 advising that the child had been refused sexual assault counselling as the allegations had been unsubstantiated. The mother informed the Child Protection Unit that the child was “still peeing and weeing” and had disclosed to a neighbour (3 February 2011) that “daddy put finger up my bum”. She further informed the Child Protection Unit that the child was screaming at night “afraid of monsters” and when asked about the monster says it is daddy. She informed the Child Protection Unit that the child was not seeing her father but that he wanted to resume overnight contact, alleging that the mother had a mental illness and that he wanted her assessed by a psychiatrist.
The Child Protection Unit on 12 April 2011 sought to clarify with JIRT the outcome and were advised that the “matter was not substantiated”. This was communicated that day to the mother.
Thereafter on 29 April 2011 the mother procured a referral of the child to a counsellor Ms U, psychologist (Exh “R”).
In August 2011 the maternal grandmother alleges that the child made further inappropriate disclosures: “Daddy’s doodle and milk comes out there”. The mother and the maternal grandmother reported the disclosure to a medical practitioner.

The first Single Expert Report

In the first Single Expert Report of Dr K (6 February 2012) Exh “B”, significant events in the mother’s life were touched upon:
19.      I asked about the sexual harassment claim raised in the father’s affidavit. The mother explained that whilst WorkCover had not upheld her claim, the mother had taken the matter to the Antidiscrimination Tribunal in Queensland, and had reached an agreement with her employer in which she received an apology, a written reference, and an $8000 payment. After she left this workplace, the mother did not work for 3 months.
20.      In 2003, the mother worked as an exotic dancer at a strip club for a 3 month period. Her partner at the time encouraged her to do so, and his friend’s girlfriends were also doing so. The money was OK. In hindsight, the mother feels that her judgement was distorted by her being in a violent and disrespectful relationship at the time.
21.      …
22.      The mother completed a Certificate in Childrens’ Services during 2009 and 2010 at TAFE. She did these to benefit the child. I asked what she had gained. She has learnt about different types of play, knowing what the child’s behaviours mean, the importance of socialisation and social skills, and routines. An example of the mother’s understanding of routines is that recently when the child regressed into some more difficult behaviour, the mother set up a timetable for the morning… wake up, breakfast at the table, then playtime, then morning tea, then walk… This seemed to help.
and…
25.      The mother had a relationship with [Mr JJ] between ages 23 and 26, the relationship ending in 2005. There was bad physical violence. When she left, she had an AVO on him. She left the gold coast to get away from him, going to Brisbane, then to Sydney.
26.      When the mother met the father, he was very charming. He seemed nice. She didn’t see any signs of domestic violence. They met on the RSVP internet dating site. Then he kept calling her. He was jealous of her whereabouts, even from early on. He would follow her, just turn up at friends’ places, or when she was seeing clients. But, she thought maybe he would change.
27.      The first time that the father was physical with the mother was in February 2007. But, they were trying to have a child, and the father said, “I’ll be a wonderful father”. She thought that he might change after the child was born. The mother was lonely, and didn’t have a support network. After the child was born, they did things as a family, and the mother thought that this was good for the child.
28.      But, the mother has kept diary notes since 2007. She became an evidence-keeper. She would make observations herself, and get advice from counsellors. But she would then think, “maybe I’m not right, maybe he’s right”.
In February 2012 the Single Expert spoke to the Director at the child care centre attended by the child, he reports:
225.    [Ms YY] is the director of the child care centre, and is a diploma trained early childhood educator. She had dealt with the child and mother since about October 2011. Before she spoke with me, [Ms YY] spoke to [Mr KK], the centre manager, who had also had dealings with the child and both parents, including prior to [Ms YY] starting at the centre.
226.    Overall, the child presents as a happy and adapted child. The centre do (sic) not have concerns about her intellectual development or her social and emotional wellbeing. The child had regressed somewhat in the latter half of last year, continuing into this year, in that she was showing some new separation anxiety when dropped off by the mother, with some teariness and clinginess. This had been appropriately managed by the mother, who would stay for a little while to attempt to settle the child in, but then if necessary would ask a staff member to be with the child, and would exit even if the child was distressed. The child would then settle after a little while. The mother did not appear to be disproportionately anxious or insecure about managing these symptoms in the child.
227.    The child had not made any disclosures or shown any sexualised behaviour at the centre.
228.    On 14th February 2012, [Ms YY] called to add an additional piece of information from [Mr KK], the centre manager. [Mr KK] reported that in 2011 when the mother had first reported disclosures from the child about the father sexually interfering with her, the mother had wanted [Mr KK] and centre staff to question the child about whether any adults had touched her, and report any disclosures. [Mr KK] had explained that they would not question the child directly about such matters, but would of course report any spontaneous disclosures. The mother was insistent, and quite angry that [Mr KK] had declined to do so.
As to the mother’s mental health Dr K reported:
244.    In my view, the mother is not suffering from a mental disorder. She has experienced periods of significant depression and anxiety in the past in the context of adversity, in particular her experience of coercion and violence from a previous partner and (from her perspective and in my view) the father, and also adverse workplace experiences on two previous occasions. In my view, at these times she was appropriately diagnosed with an adjustment disorder.
245.    The mother’s presentation is not consistent with a personality disorder. But, she does have some personality characteristics which are relevant.
246.    In my view, the mother has had difficulty with self-respect, conflict resolution and assertiveness in intimate and work relationships, such that she has recurrently found herself in relationships in which she is experiencing disrespect, abuse and coercion. She has stayed in these relationships and has been compliant and unwilling or unable to assert herself directly to the protagonist or to exit. What she has done has been to seek counselling support for herself, to begin to document events which concern her (in part to test or convince herself and in part to back herself up as she fears being disbelieved), then eventually to act to assert herself. When the mother does eventually act to assert herself, she can be quite detailed, insistent and persistent. She is insecure in asserting herself, fearing and almost expecting not to be believed, and thus is meticulous and persistent in documenting and corroborating her concerns. This pattern was seen with her violent relationship in Queensland, in the work relationship which resulted in the workcover claim, and in the relationship with the father.
247.    In my view, it was this delayed but (once activated) insistent and persistent assertion of her rights against the father’s relational coercion which explains the mother’s persistent contact with the police regarding the father’s misdeeds and (more recently) her persistent pursuit of the sexual abuse allegations with the counsellor, GP, childcare workers. Just as the mother passively tolerated the father’s disrespect of her for some time, then separated and swung to the other extreme of dogged self-assertion, the mother sat with a longstanding unease about the possibility of the father being sexually inappropriate with the child, then once provoked into action followed all avenues available to investigate the matter, and strongly asserted the need for the child to be protected.
248.    I note that [Dr S] said that it was at her insistence that the mother switched from compliant distress to putting in a WorkCover claim. [Ms Y] described the mother as scared of doing wrong by the court system, and subpoenaed documents record the mother’s fear in January 2011 that by raising the disclosure of sexual abuse she may lose her child if the court thinks that she is blocking contact with the father. The picture is of a woman with a predominant compliant response to authority or threat, who over time can mount an assertive response when it is required.
249.    Whilst if the above view is accurate, the mother will be acting out of genuine concern for her own and the child’s welfare, it is possible that the insistent and persistent assertion of those concerns might extend to extension or embellishment of the facts. There are no specific instances where I feel it likely that this has occurred. At a minimum, during my interview the mother’s careful aligning of her responses to the section 60cc criteria suggests a desire to be strategic in her presentation of her story.
250.    An alternate view of the mother (which, appraising all factors, is not my view) might be that she has a more antisocial personality style, and has deliberately and strategically collected, distorted and manufactured information to serve her own ends, for example in order to avoid work or gain from other’s efforts at work, to reap financial reward from a WorkCover claim, to gain financially from the father’s wealth, or to engineer the father out of the child’s life. If this were the case, the mother may not have real concerns about the risk posed by the father to herself or the child, but may be falsely asserting or exaggerating these concerns to serve her own ends. She may have manufactured the child’s disclosure stories and coached the child to disclose to others. …
As to the father at that time the single expert said:
255.    In my view, the father is not suffering from a mental disorder. His presentation is not consistent with a past or current mood or anxiety disorder. He does not appear to have intellectual or learning difficulties.
256.    The father’s overall presentation is not consistent with a personality disorder. But, he does have some personality characteristics which are relevant.
257.    The father presented as a man who uses the immature psychological defences of denial, externalisation and idealisation, and hence has a lack of capacity to reflect on his past actions, understand and take responsibility for them, learn from them, and hence change/ grow.
258.    If (as I believe to be the case) there is at least some substance to [Ms M]’s and the mother’s descriptions of the father’s aggressive, jealous and “stalking” behaviours and the maternal grandparents’ descriptions of the father’s behaviour, then the father’s initial accounts to me of his relationship with these women not only omitted important negative aspects, but went further to describe a global idealising positivity, such as the father’s statement regarding [Ms M] that “It ended well.. it was both of their decision… they just grew apart”, and about the separation with the mother that “He handled it well. He was grounded, and stable”.
259.    Whilst the above accounts will have involved some deliberate omission of fact, they have the characteristics also of an unconscious denial linked with idealisation, that is that the father has dealt with these difficulties in his life by painting over them a more palatable reality. Whilst this process is effective in reducing the father’s distress, it disrupts his ability to learn from the past, and increases the likelihood of a recurrence of similar behaviour under stress, as (I believe) occurred when the father repeated with the mother many of the behaviours which occurred with [Ms M].
…
262.    When challenged with some of the facts or allegations about his relationships, the father used externalising psychological defences, i.e. putting the responsibility for his behaviour onto others or onto circumstances, for example that [Ms M] was friends with the police, or the mother was spiteful.
263.    The father spoke of his relationship with the child and of his own parenting capacity in idealised terms. The child is his life. His parenting instincts are strong, it comes natural, and he and the child have a very strong bond. He felt that the ten session parenting course which he had attended had covered only stuff that he already knew, that he already had under control.
264.    The father presents as a man who forms intense, idealised interpersonal relationships, who in this context can be intrusive and possessive, and can swing from idealised admiration to aggrieved coercion and aggression if he is “let down” by the idealised other. In my view, these features of the father’s relational style were evident in the relationships with [Ms M] and the mother. The relationship with the father’s current partner is idealised, but does not at this stage appear to have experienced swings to the negative. This may be because the father has matured, but I think it more likely that there remains a latent vulnerability within this relationship.
As to the central issue of risk to the child at that time (2012) Dr K opined:
286.    At one end of the continuum of possibilities is that all of the events allegedly disclosed by the child have been perpetrated on her by the father. At the other end, is the possibility that the child in fact made no disclosures, and the mother has colluded with others who support her to fabricate these.
287.    It is my impression that the mother’s belief that the child has been sexually interfered with by the father is a genuinely held belief, ie it is not fabricated or exaggerated. It grew from an underlying suspicion about the father’s character and specifically about his possible inappropriately sexualised stance towards the child, which was borne out in the incident when the child was quite small and she observed the father to have an erection whilst changing the child’s nappy. The maternal grandfather’s report that the mother came to him about this event, and that he reassured her, is suggestive of her having developed a genuine concern about sexual abuse. The mother’s presentation to me was consistent with that of a woman genuinely concerned and proportionately anxious and reticent about the risk of the child experiencing sexual abuse from the father. I note that therapist [Ms U] felt similarly.
288.    It is my view that the child’s disclosures likely did occur more-or-less as described. The presentation of the child was that of a child strongly aware that her mother “doesn’t like” her father, but was not consistent with a child who has been coached. Whilst the mother and her own mother might collude to manufacture or exaggerate disclosures, I think it unlikely that the mother’s friend (without blood ties, and appearing to have a strong, quiet, thoughtful nature) would do so. The mother’s friend’s account was consistent with my impressions of the mother: ie the mother’s friend’s account of answering the distressed call from the mother when she first heard the child’s disclosure, of the two of them subsequently “walking on eggshells” so as not to draw attention to the issue, and the child later disclosing to the friend.
289.    I saw in the father no direct symptoms or attributes suggesting paedophilia or any other paraphilia, or any history of sexual violence. There is no specific personality profile of adults who engage in sexual abuse. Adults (like the father) with personality immaturity are overrepresented amongst abusers, but this is by no means a marker of abuse.
290.    I remain uncertain as to whether sexual abuse has occurred. As the JIRT review points out, in this context the child is particularly vulnerable when she is yet to reach the intellectual and verbal maturity to be able to clearly articulate her experiences.
291.    In my view, the most likely explanation for events is that the child had genital redness and soreness related to a rash with medical cause, and the child has blamed the father in part because she may have been describing him wiping her or applying cream (which may have hurt), and in part because blaming him would be in keeping with an alliance with the mother’s verbal and non-verbal messages that she doesn’t like him. I note in the latter regard that the child would at times say to the maternal grandmother after contact visits “daddy hit me”, which I think is more likely to be reflective of a need to show loyalty to the pervading view of dad in the household, rather than because the father has been routinely hitting the child.
292.    It is possible that the subsequent more expressive and varied disclosures about “doodles” and the father “weeing” on the child’s body resulted from the child elaborating or extending a line of commentary which had become one of intense preoccupation and reaction within the household.
293.    I remain concerned however that whilst it is not the most likely explanation, there is a smaller but significant probability that sexual abuse has occurred. This probability is increased by the child having made disclosures, and by the redness and swelling evident in the child’s genital area at the time of disclosures, and by the father’s personality immaturity. The probability is not greatly reduced by the child’s disclosure not meeting JIRT forensic standards, because this is common at this child’s age. It is also not greatly reduced by the child not having disclosed to me, as these waters have now been muddied by some months of adult vigilance in the mother’s home, and repeated interviews by or discussions with professionals. The child’s pleasure in engaging with the father in play and lack of apparent vigilance or distress in that context does not discount the possibility of sexual abuse, which is often couched in terms of play, but it makes less likely a more coercive or overtly violent form of abuse.
294.    The child’s regression to wetting her pants, clinginess and neediness may have resulted from her tuning in to her mother’s anxiety levels or from the stress in the child of adapting to changes in contact arrangements, but I am concerned that it may also have resulted from an experience of sexual abuse. This would particularly be the case if the child was showing sexualised behaviour, which the mother observed, but not the childcare or other adults.
Dr K ultimately recommended:
312.    That the mother have sole parental responsibility. That in the exercise of such responsibility she shall keep the father informed of decisions made and ensure he is provided with all relevant information pertaining to these decisions.
313.    That the child remain resident with the mother.
313.1. Quite apart from issues of sexual abuse, it is my view that the majority of the child’s time should be with the mother. This is because she is the child’s established attachment figure, because she has a more mature personality structure, and because the father’s less mature personality functioning makes him entirely adequate for a “part time” playful parenting role, but less adequate for a day-to-day parenting role. In addition, the degree of mistrust and communication difficulties between the couple are such that “equal time” would not be in the interest of the child.
314.    The amount and nature of contact between father and child will depend upon the court’s perspective on the likelihood of sexual abuse of the child by the father having occurred, and on the mother’s beliefs regarding these events.
…
318.    If the court concludes that the mother was not genuine in her fear of sexual abuse (which is not my view), and in fact fabricated disclosures and feigned concern in order to exclude the father from her own and the child’s life, then the father can be given more substantial contact at a faster rate, as the mother in this instance will not be aroused into intense vigilance and fear, because her fear was not genuine. I would still recommend some supervision, relaxed sooner than above, to protect against further manufactured claims whilst the child has low verbal capacity.
319.    That the mother consult with a psychiatrist or psychologist skilled in treating children and parents. This would be to provide her assistance with raising her child in the context of her current stressful circumstances. In particular, they might assist her in dealing with the child’s recent regression into clinginess and tantruming, and with what I have described above as the development of a coercive element in the child’s behaviour towards the mother. This therapist should be given a copy of this report. This therapist might involve the child in some family therapy in addition to seeing the mother. I would not recommend a focus on individual therapy, or the initiating of discussions about sexual abuse issues with the child.

Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

Parental responsibility

Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption relevantly does not apply where:
a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];
b)…
c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. If an order for equal shared parental responsibility is made by consent the Court may but is not required to consider equal or substantial and significant time (s 65DAA(6)).
There is no such consent in this matter. Both parties seek an order for sole parental responsibility.
Clearly in this case the father has perpetrated family violence on the mother as contemplated by the definition of same in s 4AB of the Act. He carries convictions for breaches of apprehended domestic violence orders.
Notwithstanding, the allocation of parental responsibility will be determined by a consideration of the child’s best interests. As will be seen in the discussion below it is not in the child’s best interests for there to be an order for equal shared parental responsibility. The presumption will not apply.
Equal time or substantial and significant time
Neither party seeks orders for equal time or substantial and significant time and it is readily apparent from the matters discussed above and below that the child’s best interests are not indicative of there being such an order nor are the recommendations of the single expert. Neither party seeks such an order.
Thus the orders to be made are to be determined by a consideration of the child’s best interests.

The child’s best interests:

The primary considerations: s 60CC(2)

The primary considerations are:
a)The benefit to the child of having a meaningful relationship with both of 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 and family violence.
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).

The additional considerations: s 60CC(3)

Section 60CC(3) sets out the additional considerations:
a)Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's views;
b)The nature of the relationship of the child with:
i)Each of the child's parents; and
ii)Other persons (including any grandparent or other relative of the child);
c)The extent to which each of the child's parents has taken, or failed to take, the opportunity:
i)To participate in making decisions about major long-term issues in relation to the child; and
ii)To spend time with the child; and
iii)To communicate with the child;
ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
d)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
i)Either of his or her parents; or
ii)Any other child, or other person (including any grandparent or other relative of the child);
with whom he or she has been living;
e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
f)The capacity of:
i)Each of the child's parents; and
ii)Any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
h)If the child is an Aboriginal child or a Torres Strait Islander child:
i)The child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
ii)The likely impact any proposed parenting order under this Part will have on that right;
i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
j)Any family violence involving the child or a member of the child's family;
k)If a family violence order applies, or has applied, to the child or a member of the child's family–any relevant inferences that can be drawn from the order, taking into account the following:
i)The nature of the order;
ii)The circumstances in which the order was made;
iii)Any evidence admitted in proceedings for the order;
iv)Any findings made by the court in, or in proceedings for, the order;
v)Any other relevant matter;
l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
m)Any other fact or circumstance that the court thinks is relevant.

Section 60CC(2)(a) – “meaningful” relationship

In Mazorski & Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92, the Full Court at [118] accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:
… the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…
The nature of the child’s relationships has been examined above in the context of factual findings and the single expert’s reports. The continuing relationship with the father as primary carer is clearly indicated as being meaningful in the particular circumstances of the child.
The child’s relationship with the mother is overshadowed by the risk that the mother presents to the child’s wellbeing as opined by the single expert. This consideration is clearly supportive of the orders sought by the father, supported by the Independent Children’s Lawyer and recommended by the single expert whereby the child’s time with the mother is circumscribed for the reasons propounded by the single expert. Such a relationship with the mother would in the long term be meaningful to the child and avoid the “the frequency and intensity to be a mismatch with the role” the mother should in all the circumstances play in the child’s life by reason of the need to protect the child from the risks of exposure to psychological harm in the mother’s care and the undermining of the child’s paternal relationships.

Section 60CC(2)(b) – need to protect

This is an overwhelming consideration in the context of this matter and must be given priority over issues as to relationship. In the light of the matters discussed in the single expert report and the single expert’s oral evidence there are significant risk factors in the child’s engagement with the mother. These have been discussed above at length.
As discussed above the father presents no unacceptable risk to the child.
This consideration, which is to be given primacy, is supportive of the orders sought by the Independent Children’s Lawyer, the father and proposed by the Single Expert.

The additional considerations: s60CC(3)

The child has expressed her views to the single expert as discussed above. It is the child’s preference to have the current arrangements remain including supervised time with her mother. The single expert provides a useful analysis of the child’s views and expresses the view that they should be afforded some weight but assessed in the context of the overall best interest considerations. This factor is supportive of the orders sought by the father and the Independent Children’s Lawyer.
The nature of the child’s relationships with both parents and extended family are also discussed above. As to the father the single expert opines:
My impression is that the child has a positive relationship with the father. This is an attachment relationship, in that the child looks to the father to meet her needs and to protect her from harm, and a mostly secure attachment relationship, in that the child experiences the father as mostly able to meet her needs, and as non-dangerous.
…Since the child came into paternal care in November 2012 (aged 4 years 11 months), thus for most of the child’s period of current declarative memory, this relationship with the father has become the child’s foundational attachment relationship.
As to the mother the single expert is more constrained and expresses concerns in the following terms:
174.    I am concerned that the mother has projected her own “hot” grief and desire for reunion with the child and conviction that the child dwells in an averse and abusive environment onto the child and her interactions with the child, and that the gap between the mother’s heat and the child’s warmth has created an awkward dysjunction in the mother-child relationship, which is reflected in the contact centre reports, and was evident also at my interview with the child alone and my interview with the child and mother together.
175.    The gap between the mother’s worried and grieving “heat” and child’s contented “warmth” was not itself a concern, as this is common, understandable and almost expected in the context of the parent experiencing removal of a child to the care of mistrusted other. But, most parents in this setting will check or hold back that heat in order to try to pause and to appraise where a child is at, and a child’s needs in that moment, or [if they fear abuse in the other setting] to try to get a sense of how a child is going.
176.    What is a concern has been the mother’s coercive and unempathic intrusion of this heat onto the contact time with the child. Then, when the child has appeared to pull back a little from that, the mother appears to have redoubled her efforts to “heat up” the child, rather than responding to the child’s need for some “warm” time.
177.    What also is of concern has been the mother’s pre-emptive overlay of a belief that the child will be pining for her past life with the mother, and that the child’s current life will be lacking and problem-inducing. The mother seeks out recurrent opportunity to highlight memories or aspects of that past life. She directly elicits statements from the child about “missing” or desiring time with the mother and other persons or aspects of that life. She reinforces her own intense preoccupied “love” and “thinking of” the child.
178.    The mother does not appear to enquire with neutral or positive tone after the child’s current interests or pastimes at home, or to give space for such to come forth from the child. She thus knows the actual child less and less. The mother infers negative characterological outcomes in the child from small behavioural observations, and links these to the environment at the father’s home. Where the mother does enquire, it is to ask the challenging partisan and self-referential question about whether the child likes or prefers the paternal home, rather than to enquire about or engage with the child’s day to day life there.
Thus the mother/child relationship is fraught with problematic difficulties which clearly support the child residing with the father and the mother’s time being constrained.
The parties’ engagement in decisions about the child has in substance been proscribed by court orders since the child was very young. This consideration is of little utility.
The child is in the primary care of the father and his partner who have provided for the child’s financial needs save for the mother’s child support assessed liability.
The prospective change in the child’s circumstances arises from the mother’s primary position that the child live with her and the father’s position as to more limited time with the mother. The adverse risks of this are discussed above in the context of relationships and in terms of risk.
In the event that the child live with the mother relevantly the single expert opined:
There would be significant risk of the child being exposed to a narrative of the child having been the victim of sexual abuse and other forms of abuse and neglect in paternal care including exposure to antisocial broader family context, and of the child incorporating this narrative into her sense of self, as she grows up… If the court considers that such abuse is unlikely, then the child’s incorporation of such a narrative over time would amount to emotional abuse of the child, with the potential for significant emotional, relational and developmental consequences for the child, in addition to the disrupted opportunity for engagement with the father and paternal extended family.
And later:
…I feel that the child will experience significant distress and insecurity if separated from paternal care. She would adapt to this change in the context of adequate maternal care, but I am concerned that she may need to adapt in non-ideal ways that then create future vulnerabilities in terms of her emotional and relational development. For example, the child’s adaptation may include the cementing of a dutiful and distress-suppressing anxious-avoidant attachment style, and/or a need to profess a polarising view of her life narrative in terms of good mother/ bad father.
331. In the context of secure and adequate paternal care, the child would adapt to a total separation from the mother, but would feel sadness and grief, and would miss out on the developmental opportunities afforded by maintaining a connection with the mother and maternal family.
The capacity of each parent to provide for the child’s needs are considered generally in the context of the various matters discussed above. Overall, it is considered that, as opined by the single expert, the father provides to the child a secure and settled home life: see [169] above. Yet the mother’s capacity is overshadowed by her unshakeable belief as to sexual abuse of the child and her past experiences with the father. Dr K as discussed above has considered these issues in the context of the risk they present to the child.
The child is now almost nine years of age. She demonstrated to the single expert remarkable maturity and a capacity to engage. Dr K observed:
116.    With regard to the difficult aspects of her life, the child was able to discuss these, and showed logical thinking, and capacity for problem-solving, self-management, and an ability to seek help from teachers, the latter to deal with difficult peer behaviour and with the mathematics being too hard.
117.     The child had some earnest and perfectionistic traits, observed for example when drawing her family picture for me, which she found it “hard” to finish up when I asked her to do so after about 10 minutes, and had to keep saying “I’m rushing so much” as a justification for perceived imperfections in the picture.
118.     I felt that this was consistent with the child having developed relational strategies that were effective and secure, but of an anxious-avoidant style, as above. The child presented as more poised, wise, self-contained, and agent than the average 8 year old in our culture. This observation of pseudomaturity is not an uncommon outcome when a child has faced adversity or disruption during their upbringing…
Dr K then opined:
119.    But, I observed that in the context of the paternal household, the child is experiencing pleasure, playfulness, self-expression and creativity that are balancing out her anxious-avoidant style. She was able to express negative emotion and to express incapacity or need and to seek help from others. The child experiences the father and the father's partner being mindful of and pre-emptively seeking to meet her needs, such as occurred when the father's partner checked in with the child at the commencement of our individual interview, whether the child needed to go to the toilet, or to have a drink or snack.
120.    So, I felt that this secure but caring context was softening and broadening the child’s anxious-avoidant attachment style.
121.    The comments of [Ms SS] (the psychologist who saw the child from 2 months after coming into paternal care until 6 months after that event) at telephone interview with myself, suggest that there was a period of adjustment, during which the child was more emotionally and behaviourally constrained and watchful than she was at interview with me 2 ½ years later.
122.    My impression is that the child’s self-contained, logical and independent relational style arose in part as a response to the father’s and the father's partner’s parenting style, which is one of providing quite strong and predictable routine, order and expectations, for example regarding morning and afternoon routines, dinner time and bed time, chores, and general compliance with adult instruction or expectation.
These observations also lend weight to the child’s views as discussed above.
An assessment of the parties’ attitude to the child and their responsibilities of parenthood are overshadowed by the issues discussed above and conduct of both the mother and father. Regrettably virtually the whole life of the child has been marked by parental conflict and allegations. The father appropriately seeks to maintain the mother child connection but in safe circumstances. He has otherwise, as opined by the single expert, demonstrated an appropriate attitude to the child and his parental responsibility for the child who has been in his care now for some years.
There has been family violence perpetrated by the father. The circumstances are referred to above in detail. There is no present family violence order. The single expert’s views as to the context of the father’s behaviour as referred to above was not challenged in cross-examination.

It is hoped that final orders to be made will avoid further litigation. Perhaps such is a triumph of hope over experience.
It is clear that the best interests of the child are indicative of orders being made as sought by the father and the Independent Children’s Lawyer such being in accord with the accepted opinions of the single expert.
Orders will be made accordingly.

I certify that the preceding two hundred and fifty three (253) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 25 November 2016.

Associate:

Date: 24 November 2016

[2016] FamCA 1012

25 November 2016

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Expert Evidence

Procedural Fairness