Edlund and Edlund

FAMILY COURT OF AUSTRALIA

EDLUND & EDLUND

[2014] FamCA 656

FAMILY LAW - CHILDREN – with whom a child lives – best interests of children – allegations of physical abuse – discussion of meaning of unacceptable risk – finding on balance of probabilities that neither parent abused the child – finding that there is no unacceptable risk – whether it is appropriate for father to have substantial & significant time with child – where it is appropriate for father to have unsupervised time with the child

Family Law Act 1975 (Cth) ss60CC, 60B, 61DA, 65DAA, 68B
Evidence Act 1995 (Cth) s140

MRR v GR (2010) 263 ALR 368;
M & M(1988) 166 CLR 69;
W & W (2005) FLC 93-235;
N & S & the Separate Representative (1996) FLC 92-655

APPLICANT:

Mr Edlund

RESPONDENT:

Ms Edlund

FILE NUMBER:

SYC

569

2013

DATE DELIVERED:

25 July 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:	28, 29, 30, 31 October 2013, 1, 13, 14, 15 November 2013
WRITTEN SUBMISSIONS:	21 January 2014 31 January 2014 7 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Edlund appeared on his own behalf

COUNSEL FOR THE RESPONDENT:

Mr Longworth

SOLICITOR FOR THE RESPONDENT:

Matthews Folbigg Lawyers

Orders

That all existing orders in relation to the child Y, born on … 2011 (“the child”), are discharged.
That the parties have equal shared parental responsibility for the child.
That the child live with the mother.
That, subject to these orders, the child spend time with the father as follows:
4.1until 31 October 2014, from 9:00 am until 3:00 pm each Wednesday and Saturday and thereafter
4.2until 31 March 2015, from 9:00 am until 5:00 pm each Wednesday and Saturday and thereafter
4.3      until she commences her formal education:
4.3.1from 9:00 am on Saturday until 5:00 pm on Sunday each alternate weekend and from 9:00 am until 5:00 pm each other Wednesday
4.3.2   from 9:00 am until 5:00 pm on Christmas Eve and thereafter
4.4from the commencement of her formal education until the beginning of the next school year:
4.4.1each alternate weekend from the conclusion of school on Friday until 5:00 pm on Sunday during school term time and
4.4.2for one week during the Terms 1,2 and 3 school holidays and for two periods each of one week during the Christmas school holidays, on dates to be agreed or nominated by the father in default of agreement and
4.4.3   from 9:00 am until 5:00 pm on Christmas Eve and thereafter.
4.54.5.1    from the conclusion of school on Friday until the commencement of school on Tuesday each alternate weekend during school term time and
4.5.2for one half of all school holidays, being the first half in even-numbered years and the second half in odd-numbered years unless agree otherwise by the parties in writing
4.6      from 9:00 am until 5:00 pm each Father’s Day.
That, for the purposes of implementation of these orders the father collect the child from and return her to her day-care centre, preschool or school whenever possible or otherwise that the parties meet and effect changeovers at the Post Office in B Shopping Centre, provided that only the father or his nominee and the mother or her nominee shall be present on such occasions.
That the child’s time with the father is suspended from 9:00 am until 5:00 pm each Mother’s Day.
That neither party denigrate the other or a member of the other’s family in the presence or hearing of the child or permit any other person to do so.
That each party inform the other as soon as is practicable of any significant injury or illness suffered by the child in the care of that party.
That the mother do all things necessary to authorise staff of any day-care centre, preschool or school attended by the child from time to time or any treating health professional to provide to the father any information or documentation which he may reasonable request, provided that the father is responsible for the cost of provision of such information.
That the father is restrained from attending the child’s day-care centre, preschool or school other than in accordance with these orders or at the invitation of staff of those facilities.
That each of the parties is restrained from removing or permitting or causing the removal of the child from the Commonwealth of Australia, subject to order 16.
That the Marshal of the Family Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the child from the Commonwealth of Australia.
That the Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place the child’s name on the airport watch list, also known as the PACE Alert System, at all points of arrival and departure in the Commonwealth of Australia.
That the Australian Federal Police maintain an airport watch of the child on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
That the Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to, these orders.
That orders 12 to 15 stand discharged on 7 June 2017 and that each party be permitted to travel overseas with the child provided that:
16.1overseas travel is restricted to member countries of the Hague Convention;
16.2overseas travel is limited to two weeks in each calendar year until the child attains the age of eight years and thereafter this travel is restricted to three weeks in each calendar year;
16.3the party instigating the child’s travel provide the other party with a copy of the flight itinerary no less than four weeks prior to travel.
16.4travel time with a parent does not take place during the other party’s time with the child, unless so agreed in writing by the parties.
That each of the parties pay one half of the professional fees due to Dr C within sixty days of the date of these orders.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all material produced on subpoena be returned.

15/8/2014 orders resealed as follows under slip rule:

Of the Court’s own motion and pursuant to the Slip Rule, the orders of 25 July 2014 are varied so as to insert the words “each alternate weekend” after the word “Tuesday” in order 4.5.1, such that orders provide:

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 569 of 2013

Mr Edlund

Applicant

And

Ms Edlund

Respondent

REASONS FOR JUDGMENT

the proceedings

Mr Edlund and Ms Edlund are the parents of Y, who was born in 2011 and is currently three years old, (“the child”). These proceedings concern parenting orders in relation to the child.
Regrettably, the proceedings were complicated by the father’s excessive focus on detail and insistence on introducing irrelevant material into the evidence and submissions. For example, his primary affidavit and annexures were approximately sixteen centimetres thick and ran to 1,192 pages. His final written submissions were presented in ten three centimetre thick folders. I refused to accept this material and referred this issue to a Registrar for management. On 16 December 2013 the Registrar made the following directions:
The following conditions apply to the written submissions:
·The submissions by the father shall be no more than 10,000 words;
·The submissions by the mother shall be no more than 10,000 words;
·The submission in reply by the father (if any) shall be no more than 2,000 words;
·No document, photograph, article or other similar thing is to be attached to the written submissions;
·No law report or legal reference material is to be attached to the written submissions but may be referred to by citation only;
·Any extract, quotation or reference to any affidavit or other evidence before Her Honour is to count towards the relevant word count;
·Any table, graph summary, index, footnote, endnote, bibliography or spreadsheet created by either party and included with, or attached to, the written submissions is to be counted towards the relevant word count referred to above.
I am not required to refer to each single piece of evidence adduced and every submission put by the father. The task of addressing the father’s material was difficult enough without my descending into that level of detail. In these reasons I refer only to the evidence and submissions which I consider to be relevant to the issues for determination.

Background

The father was born in 1972 in Sweden and is now 41 years old. The mother was born in 1974 and is currently 40 years of age.
The parties met in Sydney in 2001 and lived together until December 2001 or early 2002, when the mother travelled to India and Nepal. In approximately July 2002 they began to cohabit in Sweden and married in that country in August 2009. They purchased a house in Sydney in 2009 and have since lived in Australia. The parties separated on 22 February 2012 and were divorced in October 2013.
In 2010 the mother commenced IVF treatment and the child was born to the parties in 2011. She was nine months old when her parents separated in February 2012.
On 10 April 2010 Dr AB diagnosed developmental dislocation in the child’s hip and advised that she undergo surgery. On 23 April 2010 Professor E and Dr F provided a second opinion at the request of the father. He then agreed to the surgery recommended by Dr AB, who carried out the procedure on 22 May 2010. The child wore a leg brace during both day and night until 23 April 2013, when Dr AB advised the parties that it was no longer necessary for her to do so during the day. The child still wore the brace at night when the mother swore her affidavit on 30 September 2013.
On 16 April 2012 the parties agreed upon a parenting plan during a family dispute resolution conference arranged by the Legal Aid Commission. This plan, which the mother and father executed on 23 May 2012 and 15 June 2012 respectively, provided as follows:
1.        [The child] will spend time with the father as follows:
a.        On Sundays from 11 am to 12 pm;
b.        On Wednesdays from 11 am to 12 pm; and
c.        At other times as agreed between the parties in writing.
2.[The child] will spend time with the father on [the child’s] birthday from 10 am to 11 am.
3.The following provisions will apply to the time referred to in clauses 2 and 3;
a)The time will take place at [BB] playground at [Suburb DD], or in the event of bad weather, at [X] café in [Suburb DD].
b)The time spent will be supervised by the maternal aunt or the maternal aunt’s husband;
c)The paternal grandmother, [Ms A Edlund], is permitted to be present.
4.In the event of [the child] being hospitalised or receiving medical attention, the mother will notify the father as soon as practicable after the first contact with the medical practitioner, medical centre or hospital.
5.The mother will inform the father in writing as soon as practicable of any specialist medical appointments in relation to [the child] and will provide the father with the contact details of the treating specialist, and the father will be permitted to attend any such appointments.
6.The mother will do all acts and things necessary to ensure that the father is provided with all information relating to [the child’s] medical condition and treatment.
7.Within 7 days of this agreement, the mother and father will each contact CatholicCare to make arrangements to participate in the “Keeping Kids in Mind” program in [Suburb J].
8.The parties agree to attend a further conference to review these arrangements by Friday 6 July 2012.
The father and Ms K (the mother’s sister) came into conflict on several occasions during supervised time and Ms K declined to act as supervisor after a visit on 24 June 2012. The mother acted as supervisor during July and August 2012 but declined to continue after an incident on 26 August 2012.
On that occasion the child had small sores on her legs, in respect of which the mother had previously sought medical advice. Her general practitioner, Dr CC, advised that the sores were caused by a bacterial infection and recommended treatment with betadine. The mother emailed the father with this information on 24 August 2012.
On 26 August 2012 the father insisted that he take the child to a doctor and walked off with her, accompanied by his father. According to the mother, the father and the paternal grandfather both became angry and raised their voices at her. The father and/or the paternal grandfather filmed this incident, which came to an end only when the mother called police. Officers removed the child’s nappy and brace so that they and the father could inspect the sores. After this incident, Ms K again acted as supervisor of the child’s time with the father.
On 23 September 2012 the child’s time with the father was increased from one to two hours’ duration. The parties agreed that she would spend unsupervised time with the father from 9:00am until 12:00 noon, commencing on 14 October 2012. The child spent this time with the father on six occasions between 14 October 2012 and 31 October 2012.
According to the mother, she noticed a change in the child’s behaviour after she spent time with the father on 17 October 2012. The mother alleged that the child was “quieter” and “became clingy”. Between August/September 2012 and Christmas 2012 Ms M assisted the mother with the care of the child. She claimed that she observed the child to be “quieter than usual” during late October 2012.
The mother alleged that, on 28 October 2012, she observed the child to put her finger in her navel and touch her vagina while saying “papa”. Ms M alleged that she observed similar behaviour on 1 November 2012. The maternal grandmother, Ms N, maintained that she observed the child touch her vagina and say “papa” in early November 2012.
The mother reported her observations to the Department of Community Services (“DOCS”) and was advised to ask the child “who touches you there?”. On 5 November 2012 the mother consulted Dr CC, who diagnosed thrush and prescribed treatment with hydrosol cream.
On 12 November 2012 the child was examined by Dr O, who is a paediatrician. He made a notification to DOCS and advised the mother “to use lots of distractions with [the child], to minimise the behaviour”.
From 18 November 2012 the child spent time with the father under the supervision of Ms K, with her husband present on some occasions, until 11 March 2013. Consent interim orders were then made which provided that the child spend time with the father from 9:00am until 12:00noon each Wednesday and Sunday, under the supervision of staff of P Children’s Services. On 31 May 2013, further interim orders were made which provided that, from 27 June 2013, the child spend time with the father from 9:00am until 12:00noon each Wednesday and Saturday without supervision.
In June 2013 the mother began counselling with Mr Q. On 31 May 2013 the parties consented to an order in these terms:
18.The parties are restrained from issuing a subpoena on any other person or organisation that has provided therapy to either or [sic] them without leave of the Court.
Contrary to the spirit of this order, the father subpoenaed the notes of Mr Q for use in his case in contested proceedings for an apprehended violence order in the Local Court.
During 2013 the father commenced a relationship with Ms R. She filed no affidavit and was not interviewed by the single expert, Dr C. Ms R did give oral evidence, in which she indicated that she is 43 years old and has two sons who are aged twelve and ten years. She said that she has an amicable relationship with the father of her children and his current partner.
Ms R said of her relationship with the father:
It appears that we will have a long-term relationship. Everything, every decision which we make is driven by a focus on five people.
She said also:
If there is a change in residence, I would not be [the child’s] mother. [Ms Edlund] would be a most important figure in [the child’s] life.
During the course of the proceedings the father levelled formal or informal complaints at five solicitors who have acted for the mother. He also complained to the Legal Services Commission in relation to a barrister who conducted a conference with him but later appeared for the mother at an interim hearing. It appeared that the father was entirely unprepared to entertain the notion that she could have done so inadvertently.
The father complained to the directors of the child’s childcare centre that their refusal to allow him to visit at any time constituted, inter alia, a “breach of Family Law Court order 31 May 2013”, “discrimination of fathers…” and “annihilation of the relationship between the child and the father”. He threatened to claim compensation for “time lost with the child as a result of the contraventions” and “costs” from the management of the childcare centre. (father’s annexures pp677 to 682)
In his written submissions the father referred to counsel who appeared for the mother at trial and her current solicitors as persons who “on the mother’s instructions contravening undertaking, fabricating false evidence and mendacious conduct”. The father wrote in his submissions in reply “…Mr Longworth [was provided] with another opportunity to commit further MENDACIOUS CONDUCT and PERVERTING THE COURSE OF JUSTICE”. This assertion was said to be based on the fact that Mr Longworth’s submissions were three thousand four hundred and twenty four words over the limit prescribed by the Registrar’s directions. A cursory inspection of the father’s written submissions reveals his non-compliance with these directions.
The father now appears to have decided that Dr C, the single expert, is biased in favour of the mother. In his written submissions he alleged that Dr C was “solely briefed, instructed and paid for by [the mother], no payments/incentives were disclosed”. The falsity of this contention is readily apparent from the fact that the father was represented by Messrs Abrams Turner Whelan Family Lawyers when Dr C was appointed as single expert and provided with his letter of instruction. The report of 20 May 2013 was addressed both to that firm and the solicitors who then acted for the mother.

Approach To These Proceedings

In making a parenting order, the court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out “primary” and “additional” considerations, to which the court must have regard in determining what orders are in a child’s best interests.
The court must have regard to the objects of Part VII, as contained in section 60B(1) and the principles underlying those objects, as set out in section 60B(2). Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.

Section 61DA requires the court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.
If a parenting order provides for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (section 65DAA(1)). If there is no order for equal time, the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent. The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3),(4) and (5). There is no temporal definition of “substantial and significant time”.
In MRR v GR (2010) 263 ALR 368 the High Court of Australia said:
[8] Subsection (1) of s 65DAA is headed “Equal time” and provides:
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Subsection (3) explains what is meant by the phrase “substantial and significant time”.
[9] Each of subss (1)(b) and (2)(d) of s 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”…
[13] Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”…
[15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. …
A leading decision on the approach of the court to allegations of sexual abuse of children is that of the High Court of Australia in M v M (1988) 166 CLR 69. Their Honours said (at page 76):
…the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse…
and at page 75:
…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
In M and M (at pp 76-77) the High Court identified the relevant standard of proof in these terms:
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at p.362. There Dixon J said:
‘The seriousness of an allegation made, the inherent likelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’
The “Briginshaw test” is now encapsulated in section 140 of the Evidence Act 1995 (Cth), which provides:
140(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)    the nature of the cause of action or defence; and
(b)    the nature of the subject matter of the proceeding; and
(c)    the gravity of the matters alleged.
The High Court in M and M addressed the issue of “unacceptable risk” of sexual abuse and said (at page 77):
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.
In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the “the unacceptable risk test”, and said:
111. In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an ‘unacceptable risk’ and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
The Full Court in W and W cited with approval the following passage from the judgment of Fogarty J in N & S & the Separate Representative (1996) FLC 92-655:
In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
I would respectfully observe that this series of questions is a useful, practical tool which a court might utilise in assessing whether there exists an “unacceptable risk” of sexual abuse of a child.

The Evidence and Witnesses

The applicant father relied upon his affidavit sworn on an unknown date but filed on 23 August 2013. He attempted to rely on an unsworn affidavit of the paternal grandfather, Mr Z Edlund, which was annexed to his own affidavit. I would have permitted the paternal grandfather to adopt the contents of this affidavit on his oath, if he had been available for cross-examination. As he was not made available, I declined to admit this draft affidavit into evidence.
The father attempted to rely upon statutory declarations by his sister, Ms T, and the paternal grandmother, Ms A Edlund. I declined to accept the statutory declarations of Ms T, as she was not available for cross-examination. The paternal grandmother was available for cross-examination and, accordingly, I allowed the father to rely upon her statutory declarations.
The respondent mother relied on the following affidavits:
1.Ms Edlund (the mother) sworn on 30 September 2013
2.Ms K (the mother’s sister) sworn on 8 March 2013
3.Ms N (the maternal grandmother) sworn on 10 March 2013
4.Ms M (employed carer for the child) sworn on 8 March 2013
All of these witnesses were required for cross-examination.
The mother attempted to rely on an affidavit of the maternal grandfather, Mr N, by way of a case in reply. I declined that application because it seemed to me that the mother and those who advised her were on notice of the issues traversed in this affidavit and this evidence could and should have been adduced in the mother’s case in chief.
I had the benefit of a report dated 20 May 2013 from Dr C, a single expert family, child and adult psychiatrist. I was assisted by the evidence of Dr C and reject the father’s contention that he displayed bias in favour of the mother.

The Best Interests of the child: Section 60CC Considerations

As noted, in 2012 the mother reported to DOCS allegations that the father acted in a sexually inappropriate manner toward the child. These allegations were not pursued by DOCS or the police and were considered “spurious” by the single expert, Dr C. In his report Dr C opined as follows:
The child [Y] is a 22 month old child. It is worth noting the child had thrush. It is not unusual that a child with thrush would be touching her genitals. This seems to be quite normal. In October 2012 the child was 16 months old when the mother developed concerns about the child’s sexual behaviour. At 16 months of age a child is not able to speak clearly. A child at best can have single words. Usually the vocabulary of a child of that age is a number of words. A child doesn’t have sophisticated understanding of receptive language and even less sophisticated ability to express language. Therefore from a language point of view a child is very restricted. I don’t believe that a child of 16 months of age is able to convey any information or respond to questions in a way that one could accurately understand what the child is truly meaning or that the child could accurately understand what questions were being asked of her. From an emotional point of view a child of this age is at an attachment age and is wanting to remain close to the attachment figure. With regard to sexual behaviour a child of this age doesn’t have any concept of sexuality or sexual issues. Children of this age may be interested in touching their own genitals and playing with themselves. This is a common normal behaviour for children especially if she had thrush. It is well within the range of normal behaviour.
Therefore I don’t believe observing a child’s behaviour or asking a child questions to try and determine whether they have had some sexual experience or event is likely to be able to produce any information that could be of any use. The result of such interrogation or questioning or area of pursuit is only likely to result in a non-answer. Therefore I don’t believe that an adult could form any conclusion about a child who may be touching her own genitals or who may have made statements in response to a question “who touched you on the genitals” could give an answer that could reflect any meaningful statements. Even if the father had touched her on the genitals this doesn’t provide any helpful information. A child of one who requires nappy changing and washing will inevitably be touched on the genitals by whoever the carer is. Therefore it is an inane question to ask the child.
In his report Dr C summarised his conclusions as to the aetiology and validity of the allegations of sexual abuse as follows:
Therefore in conclusion I believe that with a child of 16 months and an anxious threatened mother and an obsessional blinkered [father] that this was a recipe for an unfortunate outcome where sexual abuse allegations have arisen. I believe that it is highly unlikely that sexual abuse in this situation has occurred and that these allegations are unfortunately spurious.
In her oral evidence the mother said:
I have not made an allegation that the child has been sexually abused by the father. No, as at today I do not harbor a belief that [the child] was sexually abused by her father at any time.
For these reasons, I find to the requisite standard that the father did not sexually abuse the child. I agree with Dr C’s opinion that these allegations were “spurious” and have goaded the father into making numerous complaints of physical abuse of the child by the mother. I refer to this dynamic between the parties below in these reasons.
The father referred to various bruises, “marks” and “injuries” suffered by the child in the context of his allegations of physical abuse by the mother. In my view, these alleged “injuries” to the child are capable of innocent explanation. I will not descend into the dense level of detail with which the father approached these matters in his affidavit and written submissions. I will refer to the cogent evidence and relevant submissions in relation to these allegations.
I have referred above to “marks” which the father claimed to have observed on the child’s legs on 26 August 2012. I have noted the resulting incident, which culminated in the attendance of five police officers and an inspection of these “marks” in a public place.
On 26 August 2012 the father sent an email to the mother, in which he stated inter alia:
I have noticed that [the child] has many unexplained injuries lately and I am highly concerned about her care, especially since there is a need to seek medical treatment as you are alleging.
The voluminous evidence produced by the father did not support his contention that the child suffered “numerous unexplained injuries prior to 26 August 2012”. In paragraph 239 of his affidavit, the father summarised his interpretation of the child’s medical records for the period 14 March 2012 to 21 January 2013. In my view, none of these attendances upon a general practitioner involved “unexplained injuries” to the child. The father deposed:
239. Initially after separation [the mother] did not provide me with access to [the child’s] medical records. As part of the agreement we reached on 16 April 2012, and which was included in the Parenting Plan, [the mother] agreed that I could have access to all of [the child’s] medical records and attend all appointments. However, from perusing [the child’s] medical records, I have ascertained that [the mother] has failed to advise me prior to the following appointments which she attended with [the child]:
(a)14 March 2012 with an Early Childhood Nurse. This was apparently an appointment when [the mother] first raised concerns about [the child’s] progress in walking and her hip;
(b)3 April 2012 when [the child] was taken for an ultrasound and x-ray;
(c)4 April 2012 when [the child] had a Doctor’s appointment confirming the diagnosis of hip dysplasia;
(d)10 April 2012, when [the child] had an appointment with the [U] Hospital Orthopaedic Clinic. This was the appointment, as deposed to earlier in my Affidavit, which [the mother] did advise me of and which I attended the hospital, however I was prevented from attending the appointment;
(e)6 June 2012, when [the child] had a Doctor’s appointment with respect to an eye infection;
(f)21 June 2012, when [the child] had a Doctor’s appointment with respect to a blocked tear duct;
(g)27 June 2012, when [the child] had a Doctor’s appointment with respect to conjunctivitis;
(h)11 July 2012, when [the child] had a Doctor’s appointment and received her 12 month vaccination;
(i)24 August 2012, when [the child] had a Doctor’s appointment with respect to a skin infection on her legs;
(j)29 August 2012, when [the child] had a Doctor’s appointment with respect to the skin infection on her legs and a secondary infection;
(k)12 September 2012, when [the child] had a Doctor’s appointment with respect to a skin infection;
(l)3 October 2012, when [the child] had a Doctor’s appointment with respect to an upper respiratory infection;
(m)2 November 2012, when [the child] had a Doctor’s appointment with respect to an upper respiratory infection;
(n)5 November 2012, when [the child] had a Doctor’s appointment with respect to thrush in her vulva and insect bites;
(o)11 December 2012, when [the child] had a consultation with her GP and received her 18 month check and immunisations. At 9:35pm on 11 December 2012 I received an email from [the mother] in which she advised me that [the child] had been to the GP that day for her 18 month check-up and immunisations and attached the heath check form that Dr [CC], at [Suburb V].
(p)22 January 2013 when [the child] had a consultation with her GP and a chicken pox booster immunisation. [The mother] emailed me at 12:55pm that day and told me this had occurred.

Contrary to the father’s assertion, the parenting plan did not specifically oblige the mother to provide to the father “access to all of [the child’s] medical records”. She was required to “do all acts and things necessary to ensure that the father is provided with all information relating to [the child’s] medical condition and treatment”. Further, the parenting plan did not provide that the father “attend all appointments”. The agreement was that he attend “specialist medical appointments”. Insofar as I am aware, the father has been advised of and attended all of the child’s “specialist medical appointments”. Obviously, his complaints extend well beyond that definition and purport to cover visits to a general practitioner in relation to relatively routine childhood maladies.
The mother deposed that the father complained to her about two small bruises on the child’s lower leg on 3 July 2013. The mother said that the father stated: “they are not where you would normally get bruises if it is an accidental bump”, to which she replied: “perhaps she bumped her leg when she was playing”.
The father referred to these bruises at paragraph 486 of his affidavit, where he deposed as follows:
486.    At 11:51, we were preparing for departure and the handover. [The child] was sliding down the sofa and her pants were sliding up exposing her legs. I noticed that on the back side of [the child’s] right leg there were two bruises approximately 15mm in diameter (being a total bruised area of approximately 30mm in diameter) I immediately grabbed my mobile phone to take a photo as I thought it was a very unusual place to have bruises, especially considering [the child’s] uncharacteristic behaviour.
I asked [the child]:     “where did you get them from”
[The child] said;        “It’s Mummy”
I asked:  “Did Mummy make those bruises”
[The child] said:        “Yes”
I asked:  “Is it hurting sweetheart”
[The child] said:        “No, it’s not hurting”
I asked:  “When did it happened, did it happened today”
[The child] said:        “Yes”
I said’“Will you tell Daddy if you are being hurt, will you do that [the child’s given name], because those bruises do not look good?”
[The child] did not answer the question and appeared sad and withdrawn.
On the strength only of these two bruises, the father saw fit to discuss the possibility of physical abuse of the child by the mother with a contact supervisor of P Children’s Services, staff at her childcare centre and, at a later time, with a general practitioner. In cross-examination, however, the father conceded “it could have been an accident”.
The father deposed (paragraph 499): “At this stage I was highly concerned about [the child] being physically abused…” In my view it is reasonable to assume he was extremely vigilant about checking the child for injuries, bruises and other marks whenever he saw her at this time. Nonetheless, he deposed: “during my supervised time with [the child] between 10 March 2013 and 26 June 2013, I have not observed any significant marks, bruises or injuries on [the child]”. I have no doubt that the father would have referred in his affidavit to any “significant marks, bruises or injuries to [the child]” which he observed and attempted to attribute blame to the mother.
The father maintained that he observed that the child presented “red and swollen around her left eye” when he collected her on 10 July 2013. He contended that she said “Mummy did it, Mummy did it” but provided no context to this alleged remark. Notes of the general practitioner, which were annexed to the mother’s affidavit, demonstrate that the father put leading questions to the child and made a recording of her comments on this occasion.
The father took the child to Dr W on 10 July 2013. He played the recording to her and showed her photographs of the bruises on her leg which he took on 3 July 2013. In cross-examination the father conceded that he also played this recording to the manager of the child’s childcare centre, a contact supervisor and “probably many other people”.
Dr W’s notes of 10 July 2013 read as follows:
Father concerned re? bruise L side of face, under L eye. Also noted 2 bruises on her R leg on 3/7 (photo taken). Allegations of sexual abuse made by mother against Father. Father concerned she (mother) is framing him as her last option. Small patch of rough dry skin and minimal swelling under L eye looking more like dry skin/dermatitis than a bruise. No bruises or signs of harm. Father says he has a recording of the child actually saying Mama did it! Shown to me, leading Q used (did mama do it?)
Dr W made a report to DOCS, no doubt because of her obligations as a mandatory notifier. As Dr C remarked in his oral evidence: “the medical profession has a very low threshold for reporting, they do it really to protect themselves in many cases where they have a highly anxious parent”. Unsurprisingly, DOCS officers took no action in relation to this mark on the child’s face.
It is thus apparent that the father made strenuous efforts to establish that the mother subjected the child to physical abuse. In my view, he leapt to sinister conclusions on the basis of flimsy material on several occasions. I refer below to Dr C’s analysis of this propensity on the part of the father. I find to the requisite standard that the mother did not physically abuse the child.
Each of the parties alleged that the other has directed verbal and physical abuse at him or her. Under the heading “Family Violence” in his affidavit the father deposed to an alleged incident on 6 August 2011, during which the mother supposedly shouted at him, struck his arm and pushed him while he was holding the child.
The father alleged that the mother spoke loudly and angrily to him on 24 December 2011 and then hit his arm with her fists. He described as “uncharacteristic” this alleged behaviour on the part of the mother. These alleged incidents were not put to the mother in cross-examination.
The mother alleged that, on 23 December 2011 she suffered a large bruise when the father slammed the door of the parties’ home office on her arm. The mother made a complaint to police about this incident, and other matters, on 23 February 2012. Police officers applied for an apprehended violence order, which was dismissed after a defended hearing in July 2012. The father denied that he caused any bruise to the mother’s arm.
There was no evidence to corroborate the allegations of family violence which each of the parties directed at the other. I cannot now determine the veracity or otherwise of these mutual allegations. I cannot be satisfied that either party subjected the other to family violence. It appears that their relationship became volatile after the birth of the child and could well have been characterised by physical pushing and raised voices from that point. On the evidence available to me, I find to the requisite standard that neither party engaged in family violence.
The father attempted to attach significance to remarks made by the presiding Magistrate in July 2012, which he has repeatedly represented as a recommendation that the mother receive “psychiatric and medical assistance for her behaviour and her apparent mental symptoms”. He made these representations in writing to the Legal Aid Commission, the manager of the child’s childcare centre and the Legal Services Commission.
On 13 November 2012 the father sent an email headed “Misconduct and false allegations by [the mother]” to a member of staff of the Legal Aid Commission. He complained that the mother received a grant of legal aid and wrote, inter alia:
…[The mother’s] false ADVO allegations were contested at a full hearing in court and immediately dismissed …/7/12. The Magistrate recommended [the mother] medical and psychiatric help for her behaviour and her apparent mental symptoms. The Magistrate also recognised and acknowledged that her false allegations and the attempt to obtain an ADVO was in the purpose of gaining parental responsibility of our daughter. [The mother] also made false reporting to the Police and committed perjury in court…
(father’s annexures page 432)
On 29 July 2013 the father emailed to the directors of the child’s childcare centre a complaint that he was prevented from visiting the child at any time of his choosing. I have referred to this complaint above in these reasons and noted the father’s threats and florid characterisation of this decision of the directors.
In a letter of complaint to the manager of the child’s childcare centre dated 29 July 2013 the father wrote: “[The mother] has been recommended by his Honour Magistrate … on … July 2012, that she might be in need of medical and psychiatric assistance” (father’s annexures page 678).
The father made the same representation in a complaint concerning a barrister to the Office of the Legal Services Commissioner (father’s annexures page 711). The father wrote a 15 page complaint about the conduct of the barrister Ms G, who held a conference with him and later appeared for the mother at an interim hearing. Inter alia, the father wrote:
Of particular interest to [the barrister] was the judgment from … Local Court … July 2012, whereby His Honour Magistrate … recommended [the mother] psychiatric and medical assistance in relation to her spurious allegations and behaviour while attempting to gain an ADVO against me. [The mother] committed perjury in court, made false reporting to the police on numerous occasions and her spurious allegations were contested, exposed and immediately dismissed by the Magistrate after a full hearing, in … Local Court…
(father’s annexures page 711)
In a letter dated 26 September 2013 to the mother’s solicitor, the father wrote:
there will be a claim lodged for your client’s unsuccessful ADVO application attempt based on spurious allegations of whereby the magistrate recommended that your client medical and psychiatric assistance in dismissing the matter on … July 2012 (exhibit 2).
The transcript of proceedings in the Local Court in July 2012 revealed that the presiding Magistrate in fact said:
She is concerned that he might be controlling in his attitudes and indeed having seen his demeanour, I suspect that he can give that impression. Whatever the real person is, I do not know. But my job is not psychoanalysis, my job is not to recommend counselling to people or suggest other medical intervention. Though the underlying suggestions about the change in attitude of the complainant since she gave birth to the little girl might suggest that she might be in some special need of assistance, whether medical or psychiatric, I do not know. But at the end of the day it seems to me that there is an end to this relationship, whether for good or for bad and whether the defendant accepts it or not, it seems to me a reality that she wishes to move on.
These remarks fall well short of a recommendation from the presiding Magistrate that the mother receive “medical and psychiatric assistance”. In my view, the father repeatedly engaged in mischievous and unfair conduct toward the mother in disseminating this incorrect information to no less than four recipients. I refer below to Dr C’s opinion of this behaviour on the part of the father.

The Additional Considerations

The child is only three years old and, accordingly, she is too young to formulate any views as to parenting arrangements. Dr C assessed that she “demonstrated a strong and healthy attachment to the mother as a primary attachment figure and also a strong and healthy attachment to the father as a secondary attachment”. He opined further that the child “was relaxed and demonstrated that she was comfortable with both parents”.
Dr C was asked to comment on the father’s Amended Application of 23 October 2013. He said: “the father’s proposals do not suggest an understanding of attachment”. He opined that the father’s proposal that he have sole parental responsibility and that the child live with him demonstrated that he lacks an understanding of her needs. He suggested further that “the father’s proposal suggests that he has marginalised [the mother] from [the child’s] life”.
In the context of the father’s Amended Application, Dr C referred to “attachment disorders”. He said: “attachment disorders can cause girls to internalise and have difficulty forming relationships”.
The father speculated that the child’s likely reaction to his amended proposal was that “she will find a change in residence stressful but she will settle quickly”. He offered this prediction after having conceded that orders in terms of his Amended Application could result in a suspension of all contact between the child and the mother for six months. I consider that this view of the father, together with the opinion of Dr C in relation to his Amended Application, give rise to real concerns as to his insight into the child’s emotional needs.
In his oral evidence Dr C described the dynamic which he perceived to have evolved between the parties with respect to their mutual allegations of abuse of the child. He said in response to questions from the father:
I think it is a tit for tat situation, with you making allegations to counter her allegations. I think the mother’s anxiety is fear of losing the child, that she found you overbearing and it has gradually grown from there. That has led to excessive questioning. Unfortunately you have been doing the same with physical abuse allegations. I think the two of you are anxious and obsessional.
In my view, the parties’ mutual allegations of child abuse raise doubts about the capacity of each of them to prioritise the child’s needs. I can but hope that they listened carefully to the evidence of Dr C and will heed his warnings that their behaviour has real potential to cause harm to the child. Dr C said, inter alia, in response to questions from the father:
I think you and [the mother] are now mirroring each other and you run the risk of harming [the child]…
I see the two of you as fine parents but the throwing of allegations is damaging. You need to move on. I am concerned that there could be more allegations from both of you, that you cannot put [the child’s] needs first…
If you and the mother keep pathologising, you will damage [the child].
The father attempted to place substantial significance on the contents of books which he described as “diaries” (exhibit 8) which the mother wrote between 1997 and 2002. He maintained that the contents of these diaries established, inter alia, that the mother suffered childhood abuse at the hands of her father; that she was sexually assaulted by a stranger; that she experienced depression and that she was involved in a group which was led by a “[spiritual leader]” who sexually abused his female followers. The mother stated repeatedly words to the effect “I don’t recall writing it, I don’t recall it” when taken to particular entries in the diaries.
The mother described these books as “journals” and explained that she “wrote about her feelings”. I agree with Dr C that “it would be dangerous to accept as factually correct the mother’s diary entries. Teenagers and young adults write about their emotions”. Accordingly, I reject the father’s implied assertion that all of the contents of the diaries are factually correct and can be considered reflective of real experiences of the mother. Of greater significance, for present purposes, is the manner in which the father chose to deal with these diaries.
On 31 May 2013 the father gave the following undertaking to the court:
a. he has not retained any original diary of the mother’s
b. that he has not retained any copies of the mother’s diaries save for a copy held by the husband’s solicitors
c. that he will not disseminate any personal writings of the mother to any third party excluding his lawyers, the court or the mother’s lawyers
d. that the copies of the mother’s diaries held by the husband’s solicitors shall remain with her
The father was represented by Messrs Abrams Turner Whelan Family Lawyers when he gave this undertaking to the court.
The father took it upon himself to send extracts from these journals to the mother’s father. He did not quote directly the mother’s own words; rather, he transcribed the material into his language.In cross-examination the father conceded that he “provided copies of her diaries to many solicitors”.
Initially, the only evidence as to the contents of these diaries was the material reproduced by the father in his affidavits and annexures. On the second day of the hearing the father gave evidence that the original diaries were in the possession of his sister in Sweden. On the third day of the trial, during his cross-examination of the mother, the father suddenly announced that he had received the original diaries from Sweden on the previous afternoon. He then produced the material which became exhibit 8. It seemed to me to be a remarkable coincidence that the father could have received these diaries from Sweden at a time when their whereabouts were a matter of controversy and an issue had arisen as to the reliability of his transcription of their contents.
The father had no apparent reservations about his use of these diaries. He did not appear to be troubled by the potential impact on the mother and her parents of his dissemination of extracts to her father. This material concerned the relationship between the mother and her father and could only have caused embarrassment to them and the maternal grandmother.
Similarly, the father apparently was untroubled by his handing over the diaries to his sister. He said:
I can’t see anything wrong with my sister having [the mother’s] diaries. She was interested and wanted to read them, take them back to Sweden.
In my view, the father showed no insight into the mother’s right to privacy in his dealings with her diaries.
I have referred above in part to the father’s litany of complaints about lawyers who have acted for the mother and the directors of the child’s childcare centre. He went so far as to make a written accusation that solicitor Mr I, who acted for the mother for a time, may be a “paedophile”. In a letter to Mr D, a partner in Mr I’s firm, the father wrote: “May I suggest that crafting ludicrous and extremely flawed sexual abuse allegations for children fifteen months old concluded by the Family Court of Australia, recently conducted by [Mr I], is not a normal behaviour and might be in the realm of a paedophile or corrupt legal practitioners’ behaviour or attributes”. In his oral evidence the father said: “I think [Mr I] is a paedophile because he made up a story about penetration of a child”.
The father took exception to the fact that Mr S, a solicitor who once acted for the mother, wrote to him on 24 October 2012 and raised issues concerning settlement of property. He suggested that Mr S deliberately misused a grant of legal aid “for a family dispute conference” “for [the mother’s] personal benefit”. In fact, the letter which set out the terms of the grant of legal aid (exhibit 3) stated: “Aid is granted for representation at a Legal Aid Family Law Conference for property and children’s matters”. Accordingly, there was nothing at all improper or sinister in Mr S’s writing of this letter. Nonetheless, the father was prepared to state in his oral evidence: “It is clearly a breach of the Legal Profession Act for her solicitor to use a grant of legal aid for parenting for property. He said also: “I have not complained about [Mr S] yet”.
In his correspondence to the Office of the Legal Services’ Commission, the father took it upon himself to brand Mr I and Ms G of counsel as perpetrators of “professional misconduct”. He suggested that Mr D “exercised influence to hold up the investigation” into alleged professional misconduct on the part of Mr I and Ms G. The father has made a complaint about the professional conduct of Mr D.

In correspondence (exhibit 2) the father made written accusations of “professional misconduct” against Ms L and Ms H, who are solicitors in the firm currently retained by the mother. In this same correspondence he suggested that the mother “committed the criminal offence of perjury” on two occasions. In his affidavit the father complained about the conduct of Ms G, a solicitor who once acted for him, in relation to her suggestion to him that Ms G of counsel may simply have made an honest mistake when she held a conference with him and later appeared for the mother.
Counsel for the mother put to Dr C the history of the father’s complaints about the mother’s lawyers and the directors at the childcare centre. He commented:
I am a little concerned about how to respond. He seems to be focussed on adults, he needs to consider how much energy [he has for the child]. I agree that it is pretty extraordinary that he equates a solicitor acting for the mother being a paedophile. It shows a lack of understanding and a quantum leap in logic, a feeling of being under attack and it would feel to him like a conspiracy against him. It suggests to me a strong belief or at least an overvalued idea. I suspect that he feels under attack and attacks back, he is in a vulnerable situation.
Dr C commented further on this history:
Certainly it seems to suggest that he lacks empathy and a lack of appreciation of the emotional impact of others is a feature of obsessive people. It raises major concerns about his judgment. It is difficult for him to be an all-focussed father for his child. If this is an ongoing, ingrained pattern, that is a major concern.
He said also:
There is a lack of ability to regulate his thoughts, he jumps to a catastrophic conclusion. Mental illness is highly unlikely because he is able to function and he has no history of mental illness. The problem is that he acts on and believes his catastrophic thoughts.
Dr C addressed specifically the mental health of each of the parties in his report. In relation to the father he wrote:
I found no evidence to suggest that the father had any significant mental health issues. There was no evidence of anxiety or depression. There was no evidence of psychosis.
With regard to his personality he appeared to be a very precise and ordered person. He paid a lot of attention to detail. He was very well organised. The way he had prepared and presented photographs of his own family of origin showed a great deal of detail and preparation. He was well prepared with toys and items to assist the child. He had obviously put a great deal of thought into how to make the child feel comfortable. He was very concerned about the child becoming distressed and taking her away from the mother when I asked to have a joint interview. I formed the view that there was no evidence of any personality disorder but that he had some obsessional qualities which largely are a positive characteristic. However his obsessional qualities may have led to him being perceived by the mother as overly critical of her. She appeared to find it difficult to cope with his suggestions regarding breast feeding and care of the child. I therefore believe that he had unwittingly contributed to the mother’s insecurity when trying to cope with a new baby and breast feeding and caring for that baby.
In relation to the mental health of the mother Dr C wrote:
I found no evidence to suggest that there was a mental health disorder. She had no significant anxiety or depression. There was no evidence of psychosis.
From a personality perspective I formed the view that there was some suggestion that there was some vulnerability. She was anxious. She probably didn’t have a great deal of experience in relationships. She found it difficult to deal with [the father] who is very self-assured and obsessive in nature. She found him to be critical and overbearing. This was difficult for her. I believe that in her insecurity she wanted to draw back to her family. Whether she was a follower of the [spiritual leader] and had some adverse experience or whether her father had been abusive was difficult to determine. Reportedly [the mother’s] [spiritual leader] was exposed for sexually abusing his disciples. She did appear to have some fragility in her self-confidence. Needing to have certainty about the interpretation of a child of just over one’s behaviour seemed to be an unrealistic expectation. I wondered also if she had unrealistic expectations of the relationship with [the father]. However despite these problems I found no evidence to suggest that she had a personality disorder. She appears to be managing herself well. She is working consistently and supporting her child. She is able to function socially and occupationally and provide well for her child. The one area that she has difficulty in is being able to have confidence and form views about her child’s relationship with her father and deal with her anxiety in this area.
I accept the evidence of Dr C to the effect that neither party suffers from a mental illness or a personality disorder. Having regard, however, to the history of his complaints about lawyers and the directors of the childcare centre; the massive amount of material which he attempted to introduce into these proceedings and the florid contents of his submissions, I share Dr C’s concern about the father’s judgment, lack of empathy and capacity to focus on the child’s needs.
The father seemed to contend that the mother has deliberately taken steps to exclude him from the child’s life. One example, to which I have referred above, was his insistence that she failed to inform him of and have him attend the child’s medical appointments. As noted, it is my view that the mother took all steps required of her by the parenting plan.
I consider that the mother on occasions has actively promoted the child’s relationship with the father. For example, she supervised their time together for a period until she felt unable to do so due to the conduct of the father. Overall, I am of the view that the mother has a genuine wish for the child to have a relationship with the father but she has struggled to deal with his relentless demands and pressure.

The Presumption of Equal Shared Parental Responsibility

I have found that neither party engaged in family violence or abuse of the child. I consider that the presumption has not been rebutted by evidence that it would be contrary to the child’s best interests for her mother and father to have equal shared parental responsibility.
Certainly there is an issue as to the extent of the parties’ ability to cooperate with each other in making significant decisions concerning the child’s care, welfare and development. It seems to me, however, that these difficulties have been exacerbated and magnified by the atmosphere of mutual mistrust created by the allegations and counter-allegations of child abuse. I am inclined to agree with Dr C’s prediction that “the impetus for ongoing allegations will [abate] when the proceedings are over”. The parties would be well advised to heed Dr C’s advice that they “move on” and “stop pathologising”.
I will order that the parties have equal shared parental responsibility for the child. Consequently, I am required to consider whether it is in the child’s best interests, and reasonably practicable, that she spend equal or substantial and significant time with each of her parents.

Equal Time and Substantial and Significant Time

The child is only three years old and has lived in the primary care of the mother for two and a half years since the parties’ separation. I accept Dr C’s evidence that the mother is her primary attachment figure and as to the likely adverse effect on the child of a separation from her.
Since the separation the child has spent no overnight time with the father. I have very real concerns as to the emotional and psychological impact upon her of a sudden introduction of an equal time regime. It may well be that the child’s reaction would be so adverse that such a regime would break down very quickly and cause damage to the father/daughter relationship. I harbour the same concerns in relation to the sudden introduction of a regime of substantial and significant time. I thus conclude that it would not be in the child’s best interests for her to spend equal or substantial and significant time with each of her parents. There would be no impediment to her doing so in terms of reasonable practicability.

Conclusion

I have substantial concerns as to the impact on the child of a sudden separation from her primary attachment figure. I share the concerns of Dr C as to the father’s capacity to focus on the child’s needs, rather than on his “catastrophic” responses to various situations and occurrences. In these circumstances, I conclude that the child’s best interests will be met if she continues to live with the mother and spends gradually increasing periods of time with the father. I am mindful of Dr C’s opinion that the father’s “intensity may settle if he spends more time with [the child]”.
The father sought a number of orders which would be impracticable or unenforceable, for example, that “the child is at liberty at all times to access, enrol, receive and attend the renowned Swedish education system in Sweden, embracing her cultural heritage and traditional values”. Obviously, I will make orders in relation to the issues raised by the father in his amended application only if I have jurisdiction to do so.
I see no basis for a reintroduction of supervision of the child’s time with the father. She has spent two periods per week, each of three hours’ duration, in the unsupervised care of the father since 27 June 2013. Nothing in the evidence persuaded me that it is now necessary for the protection of her physical or emotional well-being, for a re-introduction of supervision when she is in the care of the father.
I will not order that the mother be restrained from taking the child to consultations with a professional person in relation to any allegation of abuse, other than at the request of the father or a police officer. I have found that neither party subjected the child to abuse and I see no basis upon which I should impose such a restraint on the mother. Similarly, I can identify no reason why I should order that the mother be restrained from taking the child to a psychiatrist, psychologist or counsellor other than with the written consent of the father.
The father sought an order which would cause the child’s name to be removed from the PACE Alert System. The mother sought that the child’s name be placed and remain on that list until her eighth birthday and, thereafter, that either parent be permitted to travel overseas with her to a country which is a signatory to the Hague Convention. In circumstances of substantial mutual mistrust, I will accede substantially to the mother’s proposal but make orders which permit overseas travel from the child’s sixth birthday. It can only be hoped that the parties by that time will have learned to deal with each other constructively and in their child’s best interests.
I will not make orders pursuant to section 68B of the Family Law Act as sought by the mother. State legislation is available for her protection if the need arises in the future. I will make orders which restrain the father from attending the child’s day-care centre, pre-school or school other than in accordance with these orders or in response to invitations issued to him by the management of those facilities. The father has demonstrated that he considered himself to have an inviolable right to attend the child’s day-care centre at any time of his choosing, regardless of the wishes of its directors.
Each of the parties sought a mutual non-denigration order. Obviously, it is in the child’s best interests that she be protected from exposure to derogatory comments about her parents and extended families.

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 25 July 2014

Associate:

Date: 25 July 2014

[2014] FamCA 656

25 July 2014

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