Faizan and Kitman & Anor
[2020] FamCA 936
•9 November 2020
FAMILY COURT OF AUSTRALIA
| FAIZAN & KITMAN AND ANOR | [2020] FamCA 936 |
| FAMILY LAW – CHILDREN – Final Orders – where the applicant is the biological mother of the child – where the applicant sought orders that the child live with her and that she have sole parental responsibility – where the applicant seeks that the child spend no time with the respondents – where the first and second respondents are the primary carers of the child – where neither of the respondents are the biological parents of the child – where the circumstances surrounding how the child came into the care of the respondents are disputed – where the respondents have made allegations that the applicant is a risk to the child – where the respondents originally sought that the child remain living with them – orders by consent that the child live with the applicant and that the applicant have sole parental responsibility – where the respondents pose a risk of psychological harm to the child – order that the respondents spend no time with the child – order that the respondents be restrained from communicating with the child. |
| Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 64B, 65C, 65D, 65DAA, 69VA Family Law Rules 2004 (Cth) |
| Aldridge & Keaton (2009) FLC 93-421 Mulvany & Lane (2009) FLC 93-404 Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518 McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405 |
| APPLICANT: | Ms Faizan |
| FIRST RESPONDENT: | Mr Kitman |
| SECOND RESPONDENT: | Ms Christen |
| INDEPENDENT CHILDREN’S LAWYER: | Pearsons Lawyers |
| FILE NUMBER: | MLC | 5045 | of | 2018 |
| DATE DELIVERED: | 9 November 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Johns J |
| HEARING DATE: | 19 and 20 October 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Dr Alexander of Counsel |
| SOLICITOR FOR THE APPLICANT: | Women's Legal Service |
COUNSEL FOR THE FIRST RESPONDENT: | Mr Kiernan of Counsel |
SOLICITOR FOR THE FIRST RESPONDENT: | RRR Lawyers |
| COUNSEL FOR THE SECOND RESPONDENT: | Ms Mallett of Counsel |
| SOLICITOR FOR THE SECOND RESPONDENT: | Family Centred Law |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Eidelson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Pearsons Lawyers |
Orders
DECLARATION:
(1)Pursuant to s 69VA of the Family Law Act 1975 (Cth), the Court declares that the First Respondent is not the child’s biological father.
BY CONSENT IT IS ORDERED:
(2)That all previous orders be discharged.
(3)The Applicant have sole parental responsibility for the child X Kitman born … 2014 (“the child”) (or such other names by which the child may be registered).
(4)The child live with the Applicant.
BY THE COURT IT IS ORDERED:
(5)The child spend no time with the First and Second Respondents.
(6)The First and Second Respondents be permitted to forward to the child through the Independent Children’s Lawyer a card confirming their support for the child living with the Applicant, but otherwise have no communication with the child.
BY CONSENT IT IS ORDERED:
(7)The Registrar of Births, Deaths and Marriages in Queensland and/or Victoria be directed to amend the birth certificate of the child registered as X Kitman born … 2014 by removing the First Respondent’s name Mr Kitman born … 1960, or such other variant of his name that may be recorded, from the child’s birth certificate.
(8)The Applicant be and is hereby authorised to apply to the Registrar of Births, Deaths and Marriages in Queensland and/or Victoria for the child registered as X Kitman to be registered with a new name being X Faizan.
(9)For the personal protection of the Applicant and the child, the First and Second Respondents, their servants and/or agents, be and are hereby prohibited from:-
(a)approaching the Applicant and/or the child;
(b)go to or remain within 200 metres of any place where the Applicant and/or child live;
(c)contacting or attempting to contact the Applicant and/or the child by any means;
(d)attempting to locate, follow or keep under surveillance the Applicant and/or the child;
(e)publishing on the internet, by email, posts or other electronic communication any material about the Applicant and/or the child including on social media;
(f)approaching or contacting the child’s school or any child care or after-school provider;
(g)approaching or contacting the child’s counsellor and any medical and allied health professionals treating the child;
(h)approaching or contacting any place where the Applicant studies or works;
(i)exerting any pressure to spend time with the child on the Applicant and/or the child.
(10)For the purposes of s 11 of the Australian Passports Act 2005 (Cth) (“the Passports Act”) this order expressly permits the issue of a passport or travel documents (within the meaning of the Passports Act) for the child upon application by the Applicant.
(11)The Applicant is to arrange counselling and psychological support for the child, scheduled to commence as soon as practicable upon the child commencing to live in her fulltime care.
(12)The Applicant is permitted to provide a copy of these orders to:-
(a)any school, after-school care provider or extracurricular activity provider that the child attend from time to time;
(b)any general practitioner and any other allied health professionals including counsellors, psychologists, and/or psychiatrist;
(c)any government or non-government agency in relation to any matters concerning:-
(i)parental responsibility;
(ii)care of the child;
(iii)changing the child’s name;
(iv)the personal protection of the child and/or the Applicant;
(v)immigration and/or visa matters;
(vi)applying for and obtaining a passport for the child.
(13)The Applicant is permitted to provide a copy of the following documents to her own and/or the child’s treating counsellor, psychologist or psychiatrist:-
(a)Child Responsive Program Memorandum prepared by Ms D dated 13 September 2018;
(b)Child Responsive Program Memorandum prepared by Ms B dated 27 June 2019;
(c)Department of Health and Human Services Response pursuant to Section 69ZW Order dated 12 September 2019 ;
(d)Department of Health and Human Services Response pursuant to Section 69Z Order dated 14 April 2020;
(e)Family Report prepared by Ms B dated 21 September 2020.
(14)The First and Second Respondent be permitted to provide a copy of the Family Report dated 21 September 2020 to any counselling assisting them.
BY THE COURT IT IS ORDERED:
(15)The First and Second Respondents delete all photographs of the child which they have shared on their Facebook accounts.
BY CONSENT IT IS ORDERED:
(16)The First and Second Respondents delete all Facebook accounts registered in the child’s name or any variations of the child’s name including accounts in the name of ‘X Kitman’, ‘Z Kitman’ and ‘Y Kitman’.
(17)The Second Respondent delete any photographs, recording or images that she has of the Applicant’s vagina and other body parts that were taken during child’s birth.
BY THE COURT IT IS ORDERED:
(18)The First and Second Respondents provide the following to the Applicant by way of posting to her solicitor’s address within 7 days:-
(a)the child’s immunization book/records;
(b)a list of all medical and allied health professionals who the child has consulted both in Victoria and Queensland with contact details.
(19)That the appointment of the Independent Children’s Lawyer be discharged.
(20)That all extant applications be dismissed.
(21)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.
AND THE COURT NOTES:
A.The Applicant will take advice from the child’s counsellor as to the appropriate timing of officially changing the child’s name pursuant to order 8.
B.The First and Second Respondents will provide the Applicant with a supportive card/ letter (to be vetted by the Applicant) and any special toys or belongings belonging to the child delivering these to the Applicant’s former address at H Street, Suburb J within 7 days.
C.The First and Second Respondents will arrange for the Mental Health Care Plan for the child currently held by Ms F, social worker to be transferred to Ms C, psychologist.
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 Faizan & Kitman 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 MELBOURNE |
FILE NUMBER: MLC 5045 of 2018
| Ms Faizan |
Applicant
And
| Mr Kitman |
First Respondent
And
| Ms Christen |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This matter comes before the Court as a result of the applicant, Ms Faizan, the first named respondent, Mr Kitman and the second named respondent, Ms Christen, seeking final parenting orders with respect to the child Z, formally known as Y, who is aged 6 ½ years.
The applicant is the biological mother of the child, although the child has not lived with her since approximately 2014. Prior to the COVID-19 pandemic, the applicant was spending time with the child pursuant to interim orders made on 26 September 2019. Those orders provide that during the school term the applicant spend time with the child for two consecutive weekends out of three, commencing on Friday at 3.45pm and concluding at 3.00pm on Sunday.
At the time of the final hearing the first and second respondents were the primary carers of the child and had been since 2014.
At the commencement of the hearing, substantial concessions were made by the first and second respondents. It was conceded by them that the child should live with her mother, the applicant, who should have sole parental responsibility for all decisions regarding the child’s long term care, welfare and development. Given the numerous allegations raised by the respondents that the child was at risk in the applicant’s care, including the allegation that the child was sexually abused by the applicant, this was a significant shift in their position.
The allegations raised by the respondents throughout the proceedings were denied by the applicant. Those allegations were the subject of investigation by the Department of Health and Human Services (“DHHS”) and police and were found to be unsubstantiated. Indeed, in the s 69ZW report dated 14 April 2020, the DHHS concluded that:-
· There is a high likelihood that the applicant and the child are victims of significant family violence perpetrated by the first and second respondents;
· There was a possibility that the second respondent had coached the child to make disclosures;
· If coaching occurred, it would significantly undermine the child’s relationship with the applicant;
· The first and second respondents appeared to be actively pursuing disclosures and facilitating opportunities to make disclosures. That conduct resulted in the child being exposed to the risk of emotional harm.
The DHHS concluded that the child may be at risk in the care of the respondents, while no risks were identified with respect to the applicant.
The family consultant, Ms G, recommended in the Family Report dated 21 September 2020 that the child live with the applicant and that she have sole parental responsibility.
It is against that backdrop that the respondents’ concessions were made. Having regard to the evidence of the family consultant, both in her Family Report and given orally on the second day of the hearing and being satisfied that the proposed orders were in the child’s best interests, I made orders by consent that the child live with the applicant and that she have sole parental responsibility for the child.
As a result, the issues requiring determination were narrowed substantially.
The remaining issues for determination were as follows:-
(a)What time, if any, the first and second respondents are to spend with the child.
The applicant seeks orders that the respondents spend no time with the child. That position is supported by the Independent Children’s Lawyer (“ICL”). In contrast, the respondents seek orders permitting them to spend time with the child commencing in March 2021 initially for a period of one day per month between 10.00am and 4.00pm, that time to be professionally supervised for three occasions and thereafter, commencing in September 2021, for one weekend per calendar month. Further, the respondents seek orders to spend time with the child during school term holidays commencing in 2022/2023 and during the summer holiday periods commencing in 2021/2022.
(b)Whether the first and second respondents should be permitted to send cards, letters and gifts to the child.
The applicant proposes that there be no communication between the respondents and the child, save for a short card to be provided to the child via the ICL upon the transition of the child to the applicant’s care, that card to confirm the respondents’ support for the child living with the applicant. The respondents seek orders permitting them to forward to the child letters, cards and gifts on her birthday and special occasions. The ICL supports the applicant’s position with respect to communication.
(c)The nature and form of the counselling order in respect of the child’s counselling.
The respondents seek orders enabling the child’s counsellor to communicate with the respondents. That order is opposed by the applicant and the ICL.
(d)The nature and extent to which the first and second respondents be required to alter their social media accounts.
The applicant seeks orders requiring the respondents to delete photographs of the child from their Facebook accounts. That application is supported by the ICL. The respondents contend that that order is not necessary.
(e)The nature and extent of information to be provided to the applicant by the respondents in relation to the child’s medical history.
The applicant seeks orders requiring the respondents to provide a list of all medical and allied health professionals upon whom the child has consulted in Victoria and Queensland. That application is supported by the ICL. The respondents seek to limit that requirement to all medical and allied health professionals upon whom the child has attended in the past two years.
The hearing proceeded before me over two days and all of the parties were represented by counsel throughout. These are my Reasons for Judgment with respect to the remaining issues in dispute.
Background
The applicant, Ms Faizan is aged 43. She is unemployed and otherwise reliant on Centrelink benefits for her support.
The applicant was born in Country T and travelled to Australia on a tourist visa in October 2012. The applicant and the child were granted permanent residency in Australia on 2 July 2020.
The first respondent, Mr Kitman is aged 59 and is currently unemployed.
The second respondent, Ms Christen is aged 57 and undertakes home duties. She was born in Country U and moved to Australia in 1976.
The first and second respondents depose that they are not involved romantically and are just close friends.
The child the subject of the proceedings, the child was born in 2014 and is aged 6 years 7 months. The applicant is the child’s biological mother. The child’s father’s whereabouts are not known. The applicant’s evidence is that he is a New Zealand resident of Polynesian heritage; she does not know his full name. Further, the applicant deposes that he returned to New Zealand shortly after learning of the pregnancy and that she has had no contact with him since.
It is disputed between the parties as to how the child came into the primary care of the first and second respondents. It is common ground between the parties that they met in 2013. The applicant commenced living with the respondents at their home in Queensland prior to the child’s birth. Upon the child’s birth the first respondent was named on the birth certificate as the child’s father. There is a dispute between the parties as to the circumstances of that registration.
It is common ground between the parties, following parentage testing, that the first respondent is not the child’s biological father. Accordingly, the parties join in seeking a declaration to that effect, as well as orders by consent permitting the mother to seek amendment to the child’s birth certificate to remove the first respondent. Given the evidence as to the child’s parentage, I am satisfied that such declaration and orders are appropriate and in the child’s best interests.
Following the child’s birth, the applicant and the child lived with the respondents. The applicant breast-fed the child for a period of approximately two months and thereafter returned to work. During those periods the child was cared for by the second respondent.
In August 2014, the second respondent travelled to Country U with the child. She did not return until October 2014. The circumstances of that travel are disputed albeit that it is conceded by the applicant that she signed the necessary passport application for the child to facilitate that travel.
Upon the second respondent’s return to Australia with the child, the child commenced sleeping in the second respondent’s bedroom.
In November 2014, the applicant left the respondents’ home. It is her evidence that her departure was as a result of a dispute between she and the second respondent. She further alleges that the respondents demanded a payment of $20,000 from her before they would permit her to take the child; she did not have the capacity to make that payment and left the child in the respondents’ care. That allegation is denied by the respondents. Thereafter, the applicant alleges that she spent sporadic time with the child, and that such time was conditional upon her making payments to the respondents to assist in the support of the child.
In June 2015 the respondents vacated their home in Queensland. The applicant alleges that she did not know where they relocated to with the child.
The applicant spent no time with the child between October 2015 and December 2018. During that period the applicant had only intermittent telephone communication with the respondents.
In 2016 the applicant moved to N Town, Victoria to work. In January 2017 the applicant was involved in a motor vehicle accident which resulted in the death of her friend, a passenger in the motor vehicle. The applicant sustained injuries in that accident and was charged and convicted of dangerous driving causing death. She was sentenced to a period of eight months imprisonment and was disqualified from driving a motor vehicle for a period of 18 months. The applicant was released from prison in September 2017.
Upon her release from prison, the applicant endeavoured to communicate with the respondents and the child by telephone.
The applicant commenced proceedings in the Family Court of Australia on 9 May 2018 seeking final parenting orders with respect to the child.
On 15 May 2018 the matter first came before the Family Court without notice to the first and second respondents. That day Senior Registrar FitzGibbon made orders restraining the parties from removing the child from the Commonwealth of Australia. Further, procedural orders were made for the service and filing of documents.
The matter returned to Court on 12 July 2018. Senior Registrar FitzGibbon made orders for parentage testing to determine whether the first respondent was the child’s biological father. Further orders were made for the child to be independently represented and that Victoria Legal Aid arrange such representation. In addition, the parties were ordered to attend a Child Responsive Program for the purpose of the preparation of a Children and Parents Issues Assessment.
On 27 September 2018 Senior Registrar FitzGibbon made interim orders for the care of the child. Orders were made that day providing for the parties to engage in family therapy. Further orders provided for the child to live with the first and second respondents, and the applicant to spend time with the child as follows:-
(4)That until further order and in conjunction with the counsellor in order 2 herein, the child spend time and communicate with the applicant mother on the following terms, such time to commence without unreasonable delay after the parties have commenced counselling:
(a)on the first week for a period of two hours;
(b)on the second week for a period of four hours;
(c)on the third and fourth weeks for a period of six hours; and
(d)thereafter from 10:00am until 5:00pm on two occasions each week; and
(e)on Boxing Day;
such time to occur, commence, and conclude, in or nearby to Suburb J.
The matter returned to Court on 5 March 2019 before Senior Registrar Field. Orders were made by consent that day for the child to spend time with the applicant as follows:-
(2)That following 6 April 2019 Y spend time with and communicate with the Applicant as follows:
(a)Each alternate weekend on Saturday from 9am to 4pm with changeover to take place at the Mother’s residence with such time commencing 20 April 2019.
(b)Each alternate weekend on Saturday from 9am to 4pm with changeover to take place at the First Respondent’s residence with such time commencing on 13 April 2019.
(c)Such further and other times as agreed between the Applicant and Respondents in writing.
Further orders were made providing for the preparation of a report pursuant to s 11F of the Family Law Act 1975 (Cth) (“the Act”) to be prepared by Ms G. In addition, orders were made by consent providing for the following:-
(3)That the Applicant and Respondents be restrained by injunction from discussing Y’s paternity with Y.
(4)That the Applicant and First Respondent do all such acts and things and sign all such documents as may be required to facilitate Y’s attendance upon Ms L for counselling.
…
On 15 August 2019, Senior Registrar FitzGibbon made orders requesting that the DHHS prepare a report pursuant to s 69ZW of the Act. Further orders were made that day listing the matter for an interim defended hearing.
On 26 September 2019, consent orders were made by Senior Registrar FitzGibbon providing for the applicant to spend time with the child as follows:-
(2)The child…spend the following time with the Mother:
2.1.During the Term 3 school holiday from 10:30am Thursday 3 October 2019 to 4pm Saturday 5 October 2019.
2.2.During school term for two (2) consecutive weekends out of three (3) commencing 3:45pm Friday 18 October 2019 to 3pm Sunday 20 October 2019, and each alternate weekends thereafter with changeover at the N Town Train Station at the commencement of time and outside the Mother’s home at the conclusion of time.
2.3.During the 2019 – 2020 summer school holiday:
2.3.1.from 11am Thursday 26 December 2019 to 4pm Thursday 2 January 2020;
2.3.2.from 10am Friday 10 January 2020 to 4pm Friday 17 January 2020; and
2.3.3.from 10am Friday 24 January 2020 to 4pm Monday 27 January 2020.
2.4.During the 2020 school term and summer holidays:
2.4.1.From 10am Friday 3 April 2020 to 4pm Friday10 April 2020;
2.4.2.From 10am Friday 26 June 2020 to 4pm Friday 3 July 2020;
2.4.3.From 10am Friday 18 September 2020 to 4pm Friday 25 September 2020;
2.4.4.From 10am Thursday 24 December 2020 to 4pm Wednesday 30 December 2020;
2.4.5.From 10am Friday 8 January 2021 to 4pm Friday 15 January 2021;
2.4.6.From 10am Friday 22 January 2021 to 4pm Monday 25 January 2021.
…
Further orders were made by consent that day providing for the applicant to communicate electronically with the child.
On 25 February 2020 the matter came before Deputy Chief Justice McClelland. That day orders were made providing for the DHHS to prepare a report pursuant to s 69ZW. Further orders made that day provided the following:-
(1)The Mother is hereby authorised to instruct [V] Immigration Lawyers or such other lawyers as appropriate to submit an Application for Protection Visa for the child … and that the mother has sole parental responsibility in relation to all immigration matters for the child.
…
The matter came before me on 9 June 2020 for a First Day hearing. That day I made orders listing the matter for a final hearing before me to commence on 19 October 2020, noted as a five day matter. In addition, orders were made providing for the preparation of a family report pursuant to s 62G(2) of the Act.
In addition, orders were made that day to alter the existing spend time arrangements. The orders were by consent between the applicant and the ICL, and were not opposed by the first and second respondents. Those orders provided, inter alia, as follows:-
(1)That until M Centre, N Town re-opens for the purposes of facilitating changeover, the child …spend face-to-face time with the Applicant at the Low Vigilance Service operated by M Centre N Town for two hours each alternate Saturday at times nominated by that service.
(2)That the Applicant and First Respondent each sign all necessary forms and documents with the Low Vigilance Service within 7 days so that the Low Vigilance Service can commence as soon as practicable after M Centre re-opens.
(3)That pursuant to order 3 made 25 February 2020 the Second Respondent continue to be restrained from attending changeover with the child at M Centre in N Town including being in the car on the way to changeover.
(4)That from the first weekend after the M Centre in N Town re-opens (but not before there have been two visits at the Low Vigilance Service), Order 2.2 of the Orders made 26 September 2019 and Order 2 of the Orders made 25 February 2020 resume SO THAT the child spend time with the Mother on two consecutive weekends out of every three weekends from 3.45pm Friday until 3pm Sunday with changeover at M Centre N Town at the commencement of time and outside the Mother’s home at the conclusion of time.
(5)That thereafter the child spend time with the Mother during school holidays in accord with Order 2.4 of the Orders made 26 September 2019.
(6)That in accord with Order 4.1 of the Orders made 26 September 2019, on Sundays when the child is not spending time with the Mother, the Mother is to initiate a Skype or telephone call with the child between 5pm and 6pm and the Respondents will facilitate the call, with the child to be given privacy for the call.
…
The matter commenced before me on 19 October 2020.
Material Relied Upon
The applicant relies upon the following material:-
· Case Summary document filed 15 October 2020;
· Amended Initiating Application filed 28 April 2020;
· Affidavit of the applicant filed 17 July 2020;
· Affidavit of the applicant filed 4 September 2020;
· Affidavit of Ms P filed 20 July 2020;
· Family Report prepared by Ms B dated 21 September 2020;
· Children and Parent Issues Assessment prepared by Ms B dated 27 June 2019;
· Children and Parent Issues Assessment prepared by Ms D dated 13 September 2018;
· DHHS s 69W Report dated 14 April 2020 & 12 September 2019; and
· DHHS s 67Z Response dated 14 September 2018 & 21 June 2018.
The first respondent relies upon the following material:-
· Case Summary document filed 15 October 2020;
· Amended Response to Initiating Application filed 18 August 2020;
· Affidavit of the first respondent filed 18 August 2020;
· Family Report prepared by Ms B dated 21 September 2020;
· Children and Parent Issues Assessment prepared by Ms B dated 27 June 2019;
· Children and Parent Issues Assessment prepared by Ms D dated 13 September 2018;
· DHHS s 69W Report dated 14 April 2020 & 12 September 2019; and
· DHHS s 67Z Response dated 14 September 2018 & 21 June 2018.
The second respondent relies upon the following material:-
· Case Summary document filed 15 October 2020;
· Amended Response to Initiating Application filed 18 August 2020 ;
· Affidavit of the second respondent filed 18 August 2020; and
· Notice of Child Abuse, Family Violence and Risk of Family Violence dated 11 July 2018.
The ICL relies upon the following material:-
· Case Summary document filed 14 October 2020;
· Family Report prepared by Ms B dated 21 September 2020;
· Children and Parent Issues Assessment prepared by Ms B dated 27 June 2019;
· Children and Parent Issues Assessment prepared by Ms D dated 13 September 2018;
· DHHS s 69W Report dated 14 April 2020 & 12 September 2019; and
· DHHS s 67Z Response dated 14 September 2018 & 21 June 2018.
Orders Sought
At the commencement of the final hearing the parties advised that they had largely agreed upon the resolution of many aspects of the dispute. As such, the issues had significantly narrowed.
On the second day of the hearing I made orders by consent as follows:-
1.That the child live with the Applicant Mother commencing Wednesday 21 October 2020.
2.That the applicant mother have sole parental responsibility for the child X Kitman born in 2014 (female) (‘the child’) (or such other names as the child may be registered as).
3.That changeover of residence shall occur as follows:
(a)the First and Second Respondents, together with their support person Ms K shall take the child to M Centre in N Town on Wednesday 21st October 2020 at 11am;
(b)Ms K or the First Respondent will take the child in to the Centre and effect a handover to the M Centre staff, with the Second Respondent remaining in the car;
(c)Immediately upon effecting (b), the First and Second Respondents will immediately leave the M Centre and car park;
(d)The Applicant Mother and her support person will attend the M Centre for the purposes of collection the child;
(e)At all times the First and Second Respondent must explicitly provide their support and permission for the child to go with the Applicant Mother and follow any advice or instruction from the staff at M Centre as to how to do so.
4.For the purpose of changeover, it is requested that Mr Q, Senior Child Protection Practitioner of the Department of Health and Human Services (DHHS), or such other Child Protection Practitioner as appointed by the DHHS N Town office be present to facilitate the changeover.
5.The Respondents will arrange for the Mental Health Care Plan for the child currently held by Ms F, social worker in N Town to be transferred to Ms C, psychologist.
6.That all extant applications be listed for mention before Johns J at 2pm 21 October 2020.
7.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.
AND THE COURT NOTES:-
A.The Applicant Mother and her friend Ms P will be travelling from Melbourne and the S Region to and from N Town for the purpose of collecting the child at changeover, and such travel is deemed necessary.
B.The solicitor for the Mother has confirmed with Mr Q, Senior Child Protection Practitioner of the Department of Health and Human Service (DHHS) N Town on 19 October 2020 that he will endeavour to be present and facilitate changeover. In the event that he is unavailable, another Child Protection Practitioner from the N Town Office will facilitate changeover.
In addition to those matters, the parties have agreed that the Court should make a declaration and orders in relation to the following issues:-
· A declaration pursuant to s 69VA of the Act that the first respondent is not the child’s biological father;
· That the applicant be permitted to amend the child’s registered birth certificate to remove the first respondent’s name as the father of the child, and further, to change the child’s name;
· Orders for the personal protection of the applicant and the child;
· Arrangements for the applicant to facilitate the child’s attendance at counselling;
· Application for the child to be issued with a passport;
· The provision of the orders, family reports, s 69ZW reports and Child Responsive Program memoranda to the child’s schools, treating health professionals and counsellors;
· The provision to the applicant of the child’s immunisation records.
The applicant relied upon a Minute of Proposed orders which sought orders as follows in relation to the contentious issues:-
…
(4)The child spend no time with the First and Second Respondents.
(5)The First and Second Respondents have no communication with the child.
…
(11)The Applicant Mother is to arrange counselling and psychological support for the child, scheduled to commence as soon as practicable upon the child commencing to live in her fulltime care.
…
(15)The First and Second Respondents delete all photographs of the child which they have shared on their Facebook accounts.
…
(17)The Respondents provide the following to the Mother by way of posting to her solicitor’s address within 7 days:
(a)the child’s immunization book/records
(b)list of all medical and allied health professionals who the child has consulted both in Victoria and Queensland with contact details
…
The ICL supported the orders sought by the applicant.
The respondents also provided a Minute of Proposed orders seeking inter alia the following orders in relation to the disputed matters:-
…
5.The First and Second Respondents spend time with the child, as follows:
(a)commencing 6th March 2021, between 10am and 4pm or such other period of time as advised by Ms C on one day of the first full weekend of each calendar month with such time being professionally supervised either at a contact centre or if not available by a private supervisor (at the Respondent’s cost, if any) for the first three occasions;
(b)commencing 4th September 2021 for one weekend per calendar month, to be agreed in writing no less than 28 days before and in default of agreement to be the first full weekend of each calendar month;
(c)commencing from the 22/23 school term holidays, where any such weekend falls during the school holidays for the child, the weekend time will be extended to be for four consecutive nights;
(d)commencing from the 2021/22 summer holidays, for one 7 night period during the long summer school holidays as agreed, in default of agreement to be from the 1st January,
(e)at such other and further times as may be agreed in writing between the parties subject to order 9 below.
6.The First and Second Respondents be permitted to send letters, cards and gifts for the child’s birthday and special occasions as follows:
(a)within 7 days of the change in the child’s residence, a card expressing their support for the child in living with her mother, with such card to be provided to the Independent Children’s Lawyer to be passed on by her to Ms C such that Ms C can assess whether, how and when to present this to the child;
(b)during the period of the Independent Children’s Lawyer’s appointment any letters, cards or gifts are to be sent through the Independent Children’s Lawyer for her to ensure they are appropriate and facilitate them being passed on to the child;
(c)following the discharge of the Independent Children’s Lawyer, the Applicant Mother will provide a postal address for such communication and pass on such letters, cards and gifts unless they are inappropriate in content.
…
11.The Applicant Mother is forthwith to arrange counselling and psychological support for the child with Ms C, scheduled to commence immediately upon the child commencing living with her. The following provisions will apply to this counselling:
(a)The First and Second Respondents will forthwith do all things necessary and sign all necessary documents to transfer the current Mental Health Plan for the child to Ms C.
(b)The Applicant Mother will will [sic] use her best endeavours to ensure that the child is taken to all appointments recommended by the appointed professional until advised by Ms C that no further attendance is required;
(c)the Applicant Mother will herself attend and follow all reasonable directions as recommended by the treating professional;
(d)the Applicant Mother will provide contact details for the First and Second Respondent to the counsellor;
(e)the Applicant Mother will authorise the treating professional to communicate with the First and Second Respondent regarding the child’s progress, with such communication being at Ms C’s discretion;
(f)the Applicant Mother will authorise the treating professional to communicate with the Independent Children’s Lawyer during the remainder of her appointment.
…
16.The Independent Children’s Lawyer’s remain appointed for a period of 12 months from the date of these orders to facilitate the establishment of communication and spend time with arrangements and have liberty to seek to return the matter to the Court if, in her view this is required.
…
18.The Respondents provide the following to the Mother by way of posting to her solicitor’s address within 14 days:
(a)a certificate of the child’s immunisation records
(b)a list of any medical and allied health professionals who the child has consulted in Victoria in the past 2 years who have not already been disclosed within these proceedings, with contact details
19.The Second Respondent delete any photographs, recording or images that she has of the Mother’s vagina and other body parts during child’s birth
…
The Hearing
The final hearing commenced before me on 19 October 2020. All parties were represented by counsel throughout the hearing, which was conducted virtually via Microsoft Teams.
By agreement between the parties, the only witness required for cross-examination was the family consultant, Ms G. She gave evidence and was cross-examined on the first day of the hearing.
The matter otherwise proceeded by way of submissions and closing submissions were made on behalf of each of the parties by their counsel on the second day of the hearing. That day I made orders by consent as identified above and otherwise reserved my judgment.
It was agreed by the parties that the child formerly known as Y should be referred to throughout the proceedings as the child, as sought by the applicant.
The Evidence
Findings are made on the balance of probabilities having regard to the evidence. In applying that standard, the Court must have regard to the nature and subject matter of the case and the gravity of the matters that are alleged (s 140 Evidence Act 1995 (Cth)). In what follows statements of fact constitute findings of fact.
I have read all documents upon which the parties have relied and the exhibits tendered during the hearing. None of the parties were required for cross-examination, however I have had the benefit of observing the appearance and demeanour of the parties in Court virtually via Microsoft Teams.
In making my findings, I have given careful consideration to all of the evidence, the nature of the proceedings, the seriousness of the allegations made and the consequences that flow from those findings.
Expert Evidence
Ms B
Ms G is a Family Consultant appointed pursuant to orders made by me on 9 June 2020. Ms G has degrees in social sciences (social work) and has worked as a social worker in the United Kingdom and Australia. She has been engaged as a family consultant in the Family Law Courts of Australia in Melbourne since February 2018.
Ms G prepared two reports in this matter, a Children and Parents Issues Assessment (“CPIA”) on 27 June 2019 and a Family Report, dated 21 September 2020 (“Family Report”).
Ms G met with the parties and the child for the purposes of the preparation of the CPIA on 18 June 2019. Further, she conducted video-call interviews with the parties and the child on 17 August 2020 for the purposes of the preparation of the Family Report. Accordingly, she has had the opportunity to observe the parties and the child for the preparation of two assessments over a 14 month period.
Ms G was cross-examined by counsel representing each of the parties and the ICL. There was no challenge to Ms G’s qualifications, training or experience.
The applicant and the ICL supported the recommendations made by Ms G in the Family Report. Those recommendations are set out at paragraph 105 of the Family Report and propose that:-
· The child live with the applicant.
· The applicant have sole parental responsibility for the child.
· The respondents spend no time with the child.
· The applicant and the child access support services.
· The respondents access suitable counselling to process their grief and loss trauma.
· The Family Report be made available to professionals assisting the family.
That Ms G has made a recommendation that the respondents spend no time with the child is largely as a result of their conduct and attitude towards the applicant displayed both prior to and during the proceedings. Ms G has been in the unique position of being able to observe the parties across two assessments, spanning a period of approximately 14 months. It was her assessment that notwithstanding the encouragement by the Court to the respondents to facilitate the child’s time with the applicant and to support the re-establishment of the mother-child relationship, the respondents have been unable to do so.
At paragraph 90 of the Family Report Ms G observed as follows:-
…[the respondents] were resistant to [the child] building a meaningful relationship with her mother, and supporting [the child] to understand her parentage. In the second CPIA, [the respondents’] resistance was further noted in their unwillingness to commit to Court ordered spend time arrangements. [The respondents] appear to have continued to embed their roles as [the child’s] parents, thus undermining [the applicant’s] existence and role in [the child’s] life.
Whilst the respondents assert that they have engaged in counselling services to assist them in accepting the applicant’s role in the child’s life, Ms G was sceptical as to the effectiveness of that counselling. At paragraph 94 of the Family Report she observed that notwithstanding the work of the counsellor, Ms R, the respondents:-
…continue to be critical and negative towards [the applicant], using negative language and being resistant to a mother-child relationship between [the child] and [the applicant].
Ms G expressed concern as to the respondents’ lack of child-focus and insight as to the impact of their behaviours upon the child. As to the first respondent, Ms G observed at paragraph 97 of the Family Report that he:-
…continued to present as resentful about [the child’s] parentage, and since learning that he was not [the child’s] biological father. There appears to have been minimal effort and willingness by him to assist [the child] to build a bond and relationship with her biological parent. [The first respondent] seems to have reinforced his role and relationship as [the child’s] father, without considering the possible effects on [the child] if Court Orders were not in favour of his proposals. Further, [the first respondent] has become increasingly hostile and fixed in his views. In this way, [the first respondent] demonstrated a lack of child-focus, thus undermining the mother-child relationship.
At paragraph 98 of the Family Report, Ms G made similar observations as to the second respondent’s lack of child-focus. She there observed that:-
[The second respondent] continued to prioritise her role and her own needs as a parent to [the child]. She has continued to emphasise the love between her and [the child]. While there may be love and a bond shared between [the second respondent] and [the child], [the second respondent] appears to have made minimal effort to ensure that [the child] be afforded the opportunity to learn about her parentage, build a bond with her biological mother, and separate her own issues from [the child’s] needs. [The second respondent] appeared to feign ignorance about her part in the deterioration in the parties’ relationship and the lack of time between [the child] and her mother…[The second respondent’s] conduct raised concern about her genuine willingness and ability to be child-focussed and support [the child] with Court-ordered parenting and arrangements.
The family consultant expressed grave concern as to the potential impact of those behaviours by the respondents upon the child. She noted at paragraph 97 of the Family Report that the longer-term effects on the child of such behaviours by the respondents “could be huge, as she continues to grow and develop and make sense of her world.” Ms G noted that the consequence of that behaviour may result in the child becoming further confused in her relationships and loyalties with significant people in her life. As a result, it was the view of Ms G that this may manifest in other ways, including impacting the child’s ability to form trusting relationships in the future and embrace her growth and development along with her peers.
Ms G’s assessment of the child was concerning. At paragraph 101 of the Family Report she noted the child to present as a guarded young girl who did not appear comfortable in conversing as a child of her age would. Ms G observed that the child presented uneasily in her interactions with the family consultant at the CPIA meeting in June 2019 and that that presentation and unease increased at the family report assessment in August 2020. Similar observations were reported by the DHHS worker, Mr Q. Ms G opined that the child’s demeanour raised concern as to her levels of comfort in the home (with the respondents) and further, that such presentation does not suggest that she has feelings of security in the home environment. Ms G expressed concern as to the psychological harm caused to the child as a result of her exposure by the respondents to adult views and conflict and being influenced by those views.
Based on those factors, Ms G concluded at paragraph 103 of the Family Report that the child’s current circumstances “are less than desirable”. She noted that whilst the child has bonds with the respondents and views them as her parents, she has formed a somewhat “ambivalent bond” with the applicant and attributed this to the respondents’ “unwillingness or inability to genuinely foster the mother-child relationship”. It was Ms G’s assessment that:-
…a continuation of the current arrangement may further damage [the child’s] relationship with her mother and potentially eliminate any opportunity for this relationship to be repaired. Another barrier to this is the parties [sic] fractured relationships, and the lack of communication and information sharing between them.
As a result of that assessment, Ms G recommended that the child live with the applicant. She noted that it may not be possible to have a gradual transition to that arrangement given that there has already been a period of over two years in which the respondents “have consistently demonstrated their resistance to this arrangement”. Further, in order to enable the child to settle into her new living arrangements, the family consultant recommended that there be no time between the child and the respondents.
Ms G was cross-examined extensively in relation to her observations, assessment and recommendations. As to her views regarding any time between the respondents and the child, Ms G was clear in confirming her view that there should be no time between the child and the respondents. She confirmed her view that it was crucial that there be no time between the child and the respondents in order to allow the child to settle into the applicant’s care. She confirmed that she was cautious in relation to her recommendations as to any time occurring between the child and the respondents as a result of the respondents’ embedded views. She confirmed that it was her assessment that the respondents were “very against” the applicant’s role as the child’s mother. Indeed, given those embedded views, the family consultant expressed surprise at the apparent shift in the respondents’ position with respect to the child’s living arrangements.
Ms G conceded that in an ideal world it would be beneficial and positive for the child to have all three adults, that is, the applicant, the first and second respondents in the child’s life. However, Ms G expressed doubt as to the prospects of the respondents being able to alter their views with respect to the applicant’s role in the child’s life to enable that to occur. She confirmed that having seen and assessed the parties across two reports, she observed both the first and second respondent to hold entrenched views. Further, she noted the child was now spending less time or no time with the applicant, notwithstanding the support and encouragement for such time to occur across the course of these proceedings. It was her view that the respondents needed to make momentous shifts in their attitudes, given their embedded view that the applicant is not a safe person. She was doubtful that the respondents had the capacity to make such a shift given that they have held those views over the past six years.
Ms G conceded that it would be challenging for the child to spend no time with the respondents. She confirmed that the child would find that transition to be psychologically troubling and it would be very confusing for her to make the shift, particularly in circumstances where the respondents have promoted the view that she is unsafe in the applicant’s care. Nonetheless, Ms G was steadfast in her view that the child’s best interests were served by living with the applicant and spending no time with the respondents.
Ms G confirmed that she could not make any recommendation for the respondents to remain in the child’s life given the history, as to do so would be to allow the possibility that they may continue to undermine the applicant’s role in the child’s life.
Further, Ms G was clear in her view that the respondents should not be permitted to have on-going communication with the child’s counsellor, the role of that counsellor being to support and address the child’s psychological needs and not those of the respondents.
Ms G reiterated during her oral evidence that there had been three assessments as part of this court process, being the CPIA by Family Consultant Ms D on 13 September 2018, the CPIA in June 2019 and the Family Report in September 2020. After the release of each of those reports the respondents had the opportunity to support the role of the applicant in the child’s life. Ms G observed that the respondents had been unable to take the necessary steps to support and foster the child’s relationship with the applicant. Given that history, Ms G confirmed that she was not confident that the respondents were capable of altering their negative views of the applicant.
Ms G confirmed that the child is closely attached to both respondents. She confirmed that they had provided for the child’s physical and educational needs. However, she questioned whether the bond between the child and the respondents was healthy, particularly given the views held by the respondents towards the applicant and their inability to shield the child from those views.
It was put to Ms G that the fact that the respondents had been engaging with counselling through the services and assistance of Ms R was a positive step by them. Ms R has had involvement with the respondents since 2019. Notwithstanding Mr R’s involvement, across both the CPIA prepared by Ms G in June 2019 and the Family Report of September 2020, Ms G observed that there had been little shift in the views of the respondents in their attitude towards the applicant. As a result, Ms G was sceptical as to the benefits of that counselling or the respondents’ capacity for change, even with the continued support of the counsellor.
As a result of her pessimism as to the respondents’ capacity for change, Ms G could not support the respondents spending time with or communicating with the child as sought by them. That view was based on her concern that even infrequent time could inadvertently undermine the child’s relationship with the applicant.
During cross-examination by counsel for the first respondent, Ms G also confirmed that even were time ordered, she could not support the respondents’ proposals as to the frequency and duration of time. She noted that this was not a typical family relationship, that the respondents are not parents, but carers for the child who have not had either a productive or positive relationship with the child’s mother over a period of six years. If time were to be ordered it was her view that it should be no more frequently than once per term for one to two hours.
During cross-examination by counsel for the applicant, Ms G also confirmed her concern as to the impact upon the applicant of any time the respondents spend with the child. She confirmed that such arrangement could provide a confusing message to the applicant and the child. Further, she considered that the possibility of time in the future could compromise the efficacy of the child’s counselling. Ms G confirmed that after more than two years of litigation there needs to be closure for the child. She reiterated that the respondents have had ample opportunity to change but that this sadly had not occurred.
Ms G’s Family Report was detailed and thorough. During her oral evidence, I observed Ms G to be a considered and thoughtful witness. Her responses to questions were measured and compelling. Neither Ms G’s assessment of the parties and the child, nor the recommendations made in her report were shaken during cross-examination. I found Ms G’s observations of the parties, and particularly of the first and second respondents, to be cogent and helpful. Ms G’s evidence, which I accept, was balanced and considered and of great assistance to the Court.
Legal Principles
Section 60B(1) of the Act sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):-
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The parties in this matter seek parenting orders as defined pursuant to s 64B of the Act. That is they seek orders with respect to:-
(a)With whom the child is to live;
(b)With whom the child is to spend time; and
(c)The allocation of parental responsibility for the child.
Each of the parties has standing to apply for such orders in accordance with the provisions of s 65C of the Act, the applicant as a parent and the first and second respondents as persons concerned with the care, welfare and development of the child. The child has lived with the first and second respondents and has been cared for by them since 2014.
In determining the appropriate parenting order in this matter the best interests of the child is the paramount consideration (s 60CA). That this is so was confirmed by the Full Court in the decision Aldridge & Keaton (2009) FLC 93-421 where the Full Court in considering whether the 2006 amendments to the Act alter the principle that applied previously, said this:-
75.While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant. Our reasons for upholding this view include the following matters:
·the unaltered provision dealing with best interests (s 60CA) and the positioning of the section in the Act;
·the recognition in s 65D(1) that ultimately a court should make such parenting order as it thinks proper; and
·that no provision was included in the Act suggesting greater or lesser weight should be given to any particular applicant.
…
79.In summary, in dealing with any parenting application by a person interested in the care, welfare or development of a child, a court will determine that application applying the relevant provisions of Part VII to determine whether making (or not making) a parenting order would be in the child’s best interests.
Section 60CC(2) and (3) of the Act set out the primary and additional considerations the Court must have regard to in determining what is in the child’s best interests. The Court must give greater weight to the need to protect the child from physical or psychological harm and from being exposed to abuse, neglect or family violence (s 60CC(2)(b)). Otherwise, there is no requirement for the primary and additional considerations to be considered in a particular order or for any of those considerations to be afforded greater weight than others. Ultimately, the weight to be given to each of the considerations will depend upon the unique circumstances of each case. I will return to the detail below.
As to the manner in which the Court is to taken into account those considerations, May and Thackray JJ stated in Mulvany & Lane (2009) FLC 93-404 at paragraph 76-77 as follows:-
It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…
(Emphasis in original)
The relevant standard of proof is the balance of probabilities. The issues can most conveniently be discussed within the s 60CC considerations. I will first consider the primary considerations under s 60CC(2) of the Act.
Section 60CC Considerations
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents;
Ordinarily it is in a child’s best interests to have a meaningful relationship with both parents. The question of what is a meaningful relationship was considered by Brown J in Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518. At paragraph 26 of that judgment her Honour concluded that a meaningful involvement is one which is important, significant and valuable to the child.
In McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405 the Full Court considered the interpretation of s 60CC(2)(a) of the Act and concluded that:-
119.… the preferred interpretation of the benefit to a child of having a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents ...
…
122.In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
(Original emphasis)
The applicant is the only parent available to the child, given that her father’s whereabouts are not known. The evidence of Ms G supports a finding that the child will benefit from having a meaningful relationship with the applicant; that this is so is conceded by the respondents, who have consented to orders that the child live with the applicant.
Notwithstanding that concession, I am satisfied having regard to the evidence of Ms G that to date, the applicant’s efforts to have a relationship with the child have been thwarted by the conduct of the respondents who have failed to promote the child’s relationship with her mother. Indeed, the evidence of Ms G and the DHHS workers, as set out in the s 69ZW report, would indicate that the respondents have undermined the child’s relationship with the applicant through the pursuit of allegations that the applicant poses a risk to the child. There is no evidence before the Court that such risk exists.
The issue for the Court is whether or not the child will be able to forge a meaningful relationship with her only known parent if the respondents remain a presence in her life.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
As identified in the Family Report and during her oral evidence, it is the view of Ms G that the child is at risk of psychological harm in the care of the respondents. That harm relates to the respondents’ actions in promulgating the concept that the child is at risk of harm in the care of the applicant. The evidence of Ms G, which I accept, is that the child’s prospects of having a meaningful relationship with the applicant whilst subject to that influence from the respondents are poor.
Further, Ms G’s evidence at paragraph 97 of the Family Report as to the potential risk to the child’s capacity to form relationships with others was insightful and compelling. The risks identified by Ms G if the child continues to be exposed to the respondents’ attitudes and behaviour include that she may be confused in her relationships and loyalties with significant people in her life and her ability to form trusting relationships in the future and embrace her growth and development along with her peers may be compromised. I accept that evidence.
As a result, I am satisfied that there is a need to protect the child from such harm.
Section 60CC(3): 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;
Given her age and maturity, little weight can attach to any views expressed by the child.
During the interview process, Ms G observed at paragraph 65 of the Family Report that the child did not really converse but answered questions and responded with more information when encouraged. She noted that the child appeared guarded about offering more information than asked. When asked about her weekly communication with the applicant during the lockdown period, the child commented that she did not like or want to have those calls but could provide no explanation for that view.
(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);
Ms G reports at paragraph 95 of the Family Report that the child has been “prevented and disadvantaged in being able to build and maintain a secure bond” with the applicant. Further, at paragraph 99 of the Family Report she noted that the child’s views about the applicant have been influenced by the respondents. I accept that evidence.
As to her relationship with the respondents, Ms G reported that the child has formed bonds with them and views them as her parents. However, at paragraph 101 of the Family Report Ms G stated that in her view, the child’s bond with the respondents was not healthy as the respondents have exposed her to adult views and conflict, thus causing her psychological harm. I accept that evidence.
(c)the extent to which each of the child’s parent 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;
The respondents have principally been responsible for all decision-making regarding the child’s care for the past six years. Those decisions have been taken by the respondents to the exclusion of the applicant.
The applicant’s evidence is that she has actively sought to have a relationship with the child. She alleges that the respondents have thwarted the development of that relationship, moving from Queensland to Victoria and then to the N Town district. Further, she alleges the respondents have failed to make the child available for time in accordance with Court orders.
The applicant also alleges that the sexual abuse allegations against her only emerged in the days following interviews for the CPIA in June 2019. The effect of that allegation was to further limit the applicant’s time with the child.
I am satisfied that the applicant’s time with the child has been interrupted and that there has been no face-to-face time between the applicant and the child since January 2020. That this is so is as a result of the respondents’ conduct, particularly their pursuit of the allegation that the applicant sexually abused the child, notwithstanding the determination of DHHS and Victoria police that those allegations were unsubstantiated. The respondents’ pursuit of those allegations was only abandoned upon the eve of the final hearing.
I am satisfied that the applicant has actively pursued her relationship with the child, having commenced these proceedings in May 2018. I am also satisfied, having regard to the evidence of Ms G, that the respondents have failed to support the child’s relationship with the applicant and indeed have taken steps to undermine that relationship.
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child;
The respondents have been principally responsible for maintaining 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;
The child’s move to live permanently with the applicant will have a significant impact upon her. As noted by Ms G during her oral evidence, the change will likely cause the child confusion and it will be unsettling. She will miss the respondents who have been her primary carers for the past six years.
The applicant has engaged with counselling services and made arrangements for the child to attend counselling to support the transition to her care. I am satisfied that those arrangements are appropriate and in the child’s best interests to support her transition to the applicant’s care.
(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;
The evidence of Ms G is clear that the child is at risk of psychological harm in the respondents’ care. Having regard to that evidence, which I accept, I am satisfied that it would be contrary to the child’s best interests for her to spend time with the respondents. Accordingly this consideration is not relevant.
(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;
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The applicant has demonstrated a commitment to her role as parent for the child. She has undertaken a post-separation parenting course and engaged counselling services to support and assist her in the child’s care. Further, she has sought and obtained referrals to appropriate counselling services for the child to support her transition to the applicant’s care.
In addition, the applicant has made appropriate arrangements for the child’s enrolment at school and has sought orders to ensure that she has available to her all relevant information regarding the child’s medical history.
Having regard to that evidence I am satisfied that the applicant has the capacity to provide for the child’s physical, emotional and intellectual needs.
The respondents through their actions in exposing the child to their views of the applicant have demonstrated little insight or understanding of the child’s psychological and emotional needs; I am satisfied that their conduct is indicative of their focus on their own needs rather than what is in the best interests of the child.
(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;
The applicant is from Country T and practices a religious faith. To date, the applicant has had little opportunity to share with the child elements of her heritage including Country T culture, food and music. Further, the applicant has not been able to share and educate the child in relation to her religious faith. The orders sought by the applicant will enable her to share with the child and celebrate all elements of her cultural and religious heritage.
(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;
These considerations are not relevant.
(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;
There are no current family violence orders involving the child or the parties.
(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 children;
The child has been the subject of litigation for almost one third of her life. The evidence of Ms G, which I accept, is that she has been exposed to adult views and influence in the respondents’ household.
Further, as a result of the allegations by the respondents that the child has been sexually abused by the applicant, the child has been subjected to interview, investigation and examination by medical practitioners, police, SOCIT and the DHHS. In addition, the child was subjected to the respondents taking video images of her body, including her vagina in 2019.
The evidence of Ms G is that the child’s relationship with the applicant will be better able to securely develop without the pressure of an on-going relationship with the respondents. Ms G expressed grave concern as to the risk that the respondents would undermine, and therefore encumber the development of the child’s relationship with the applicant were there to be time or communication with the respondents. I accept that evidence.
Having regard to that evidence, I am satisfied that the child’s best interests will be served by making orders that will end these proceedings.
Counsel for the first respondent urged the Court to adjourn the proceedings to enable the respondents the opportunity to demonstrate to the Court that there has been a real and meaningful shift in their attitude towards the applicant such that it would be possible for them to resume a relationship with the child. The difficulty with that approach is that to do so may create uncertainty and potential instability in the re-establishment of the relationship between the applicant and the child. A continuation of the proceedings may have a destabilising effect on the development of that relationship to the detriment of the child; this was a concern clearly identified by the family consultant.
In my view, to continue the proceedings in the hope that there is a demonstrable shift in the attitudes and behaviour of the respondents elevates their need to have a relationship with the child above the needs of the child to have a stable and secure relationship with the applicant. Given the history of the proceedings and the opportunities the respondents have had to address and moderate their views, I am not satisfied that a delay in the finalisation of the proceedings is warranted or in the best interests of the child. Accordingly, I will make orders the effect of which will be to finalise these proceedings.
(m) any other fact or circumstance that the court thinks is relevant.
There are no other relevant facts or circumstances.
What time, if any, the first and second respondents should spend with the child?
The evidence of Ms G is unequivocal. She expressed in her Family Report and during her oral evidence that in her view, the child should live with the applicant and spend no time with the respondents.
The applicant seeks orders in those terms and is supported in that application by the ICL.
Sadly for the child, to date the respondents have been incapable of supporting her relationship with the applicant. It was submitted on behalf of the applicant and I accept that the respondents have been extremely critical of the applicant throughout the proceedings. They have alleged that:-
· The applicant has shown little interest in caring for the child;[1]
· The applicant was negligent, violent, abused alcohol and drugs and exposed the child to numerous partners;[2]
· The applicant had sexually abused the child.[3] That allegation emerged some two days after appointments for interview for the CPIA in June 2019.
[1] Affidavit of the first respondent filed 18 August 2020, para 13, 22, 23 and 25.
[2] Section 69ZW report dated 12 September 2019, page 4.
[3] Section 69ZW report dated 14 April 2020.
As a result of those allegations the respondents have failed to support the child’s time with the applicant; at the time of hearing the child had spent no time with the applicant since January 2020.
At page 7 of the s 69ZW report dated 14 April 2020, DHHS reported that:-
…Child Protection is concerned that [the first respondent], as well as [the second respondent] seem to be actively pursuing the disclosures and facilitating opportunities for [the child] to make these disclosures with the full knowledge that the disclosures, particularly the disclosures from 2019, have not been substantiated. [The first respondent] has insisted on the truthfulness of all the disclosures made by [the child] despite that he has been informed of the lack of evidence around the disclosures as well as the results of the VARE that was completed by Victorian police with [the chid] in 2019. In terms of the current disclosures, despite that [the first respondent] has been informed that there is no evidence to substantiate the disclosures he has made choices to believe that these disclosures are truthful. Regardless of his motives for making such choices, the effects of his choices have been that [the child] has continued to be exposed to significant risk of emotional harm due to [the first respondent] (as well as [the second respondent]) facilitating that [the child] should talk to different people and professionals about the unsubstantiated disclosures.
At page 6 of the same report, the DHHS workers considered the possibility that the child had been coached to make the current disclosures. Although there was no conclusive evidence of such coaching, the DHHS considered that there was a high likelihood of coaching in circumstances where the disclosures do not seem to be based in any factual evidence, the child does not seem to be able to display the emotional response consistent with the disclosures and there seems to be very active involvement from both the first and second respondents in how disclosures have been made.
In an absence of the testing of evidence, this Court is unable to make any findings as to whether or not the respondents have engaged in coaching the child. Nonetheless, the reports of the DHHS raise significant concerns for the Court as to the attitudes held by the respondents and the strength of their beliefs with respect to the alleged sexual abuse.
It was submitted on behalf of the ICL and I accept that whilst it has been contended on behalf of the respondents that their attitude towards the applicant has changed, they have adduced no evidence to support that contention.
At the time of the interview for the Family Report in August 2020, Ms G records at paragraph 58 of that report that the respondents maintained their belief that the child was sexually abused by the applicant. As a result, it is clear that the apparent shift in the respondents’ views is relatively recent. There is no evidence before the Court as to the reasons for the shift in attitude. In circumstances where neither the first nor the second respondent has given evidence in the proceedings, the Court is not able to assess the genuineness of the alleged change in the respondents’ attitudes or the basis for such change.
It was also submitted on behalf of the ICL that the respondents have raised obstacles and hurdles for the applicant to overcome in her pursuit of a relationship with the child. When the issues raised by the respondents were not accepted or substantiated by the agencies to which they reported, namely DHHS, SOCIT and CASA the respondents refused to accept those assessments and persisted with the allegations against the applicant up to the commencement of this trial. It was submitted on behalf of the ICL that that conduct demonstrates the lack of trust, the feelings of risk and uncertainty that are perpetuated by the respondents towards the applicant. There is much force in that submission.
Having regard to those matters, the ICL submitted that there should be no time between the respondents and the child to ensure that her time with the applicant is “uncluttered” and that she has the opportunity to settle and make a secure transition into the applicant’s care. I accept that submission.
The ICL also submitted that the respondents, by their conduct, have made it impossible to support a relationship between them and the child due to the enormous potential for them to disrupt and undermine the development of the child’s relationship with the applicant. It was submitted that the Court must do everything to strengthen and foster that relationship. I accept that submission.
Counsel for the respondents submitted that it would be appropriate for interim orders to be made to enable the first and second respondents time to adduce evidence that demonstrates the change in their attitude. For the reasons set out earlier in this judgment, in my view that approach is not supported by the evidence.
The evidence of Ms G was clear that the child needs the security of uninterrupted time with the applicant without the spectre of further Court proceedings impacting the development of that relationship.
It was submitted on behalf of the second respondent that were the Court to determine now to end the proceedings it would deprive the child of the opportunity of having support from the respondents. I do not accept that submission. The reality is that there is no evidence before the Court that demonstrates or indicates to the Court that the respondents have taken any steps to support, foster or encourage the child’s relationship with the applicant. The proposal that the proceedings be further adjourned to provide the respondents with another opportunity to adduce such evidence conflates their needs with those of the child. After more than two years of litigation, representing approximately one third or the child’s life, the time has come to end these proceedings.
Having regard to the evidence of Ms G, I am satisfied that the child’s best interests are served by orders that she spend no time with the respondents.
Should the first and second respondents be permitted to send cards, letters and gifts to the child?
The family consultant was again unequivocal in her recommendation that save for a card from the respondents indicating to the child their support for her move to the applicant’s care, there should be no further communication between the respondents and the child. The evidence of the family consultant was any communication with the child, save for such a card, has the potential to cause confusion to the child and undermine her relationship with the applicant.
Given the challenges that the child will face in transitioning to the applicant’s care I am satisfied that there should be no further communication between the respondents and the child, save for the short card as contemplated by the family consultant.
Should the respondents be authorised to communicate with the child’s counsellor?
The respondents sought orders requiring the applicant to provide the child’s counsellor with the respondents’ contact details and further that she authorise the counsellor to communicate with the respondents regarding the child’s progress.
That order was opposed by both the applicant and the ICL.
In circumstances where I have ruled that the respondents should not spend time with the child or communicate with her, there is no basis upon which it is appropriate that orders be made facilitating their communication with the child’s counsellor. That view is bolstered having regard to the concessions made by the respondents, which I am satisfied are in the child’s best interests, that the applicant have sole parental responsibility for the child.
SHOULD THE RESPONDENTS BE REQUIRED TO ALTER THEIR SOCIAL MEDIA ACCOUNTS?
The applicant seeks orders requiring the respondents to delete from their Facebook accounts all images they have shared of the child. Further, the applicant seeks orders that the respondents delete all Facebook accounts registered in the name of the child. That application is supported by the ICL.
The respondents have conceded that orders should be made requiring them to delete Facebook accounts in the names of the child. However, they oppose the orders sought requiring them to delete images of the child from their own Facebook accounts. The opposition by the respondents to the proposal of the applicant that the images be deleted is seemingly based upon the submission that such a requirement is onerous and unnecessary. I do not accept that submission.
The publication of the child’s image in such a forum is a breach of her privacy. Given that I have made orders for the applicant to have sole parental responsibility for the child, in my view it is a matter for the applicant to determine if, how and when the child’s images are used. Accordingly, I am satisfied it is in the child’s best interest that the respondents delete images of her posted on their Facebook pages.
What information should be provided to the applicant by the respondents in relation to the child’s medical history?
The applicant seeks orders that the respondents provide to her a list of all medical and allied health professionals upon whom the child has consulted in Victoria and Queensland and that she be provided with contact details for those medical professionals. The respondents propose that there be a limitation on that order, such that they are required to provide a list of all such medical and allied health professionals upon whom the child has attended in the past two years.
The ICL supports the orders sought by the applicant.
The applicant seeks that order to ensure that she is appraised of all relevant information regarding the child’s medical history. She deposes that the respondents failed to inform her that the child is allergic to penicillin and that she only became aware of that fact upon production under subpoena of the child’s medical records.
The applicant deposes at paragraph 58 of her trial affidavit filed 4 September 2020 that she caused her lawyer to write to the respondents’ lawyers requesting the respondents to provide details of any operations the child has had to enable her to compete an online form for the child’s health assessment. The response received to that enquiry was that the child had had no operations.
The applicant deposes at paragraph 59 of her trial affidavit that following that enquiry she was shown two images of the child posted by the second respondent on Facebook on 30 July 2015 that depict the child lying on a hospital bed. The applicant deposes that neither the first nor the second respondent have provided her with any information regarding the child’s attendance at hospital on that occasion. That evidence is unchallenged.
Having regard to those matters, I am satisfied that it is in the child’s best interests that the applicant, who is her primary carer, should be possessed of all relevant information regarding the child’s medical history. Accordingly, I am satisfied that the order as sought by the applicant is appropriate.
Having regard to the above matters, I make orders as follows:-
DECLARATION:
(1)Pursuant to s 69VA of the Family Law Act 1975 (Cth), the Court declares that the First Respondent is not the child’s biological father.
BY CONSENT IT IS ORDERED:
(2)That all previous orders be discharged.
(3)The Applicant have sole parental responsibility for the child X Kitman born in 2014 (“the child”) (or such other names by which the child may be registered).
(4)The child live with the Applicant.
BY THE COURT IT IS ORDERED:
(5)The child spend no time with the First and Second Respondents.
(6)The First and Second Respondents be permitted to forward to the child through the Independent Children’s Lawyer a card confirming their support for the child living with the Applicant, but otherwise have no communication with the child.
BY CONSENT IT IS ORDERED:
(7)The Registrar of Births, Deaths and Marriages in Queensland and/or Victoria be directed to amend the birth certificate of the child registered as X Kitman born in 2014 by removing the First Respondent’s name Mr Kitman born in 1960, or such other variant of his name that may be recorded, from the child’s birth certificate.
(8)The Applicant be and is hereby authorised to apply to the Registrar of Births, Deaths and Marriages in Queensland and/or Victoria for the child registered as X Kitman to be registered with a new name being X Faizan.
(9)For the personal protection of the Applicant and the child, the First and Second Respondents, their servants and/or agents, be and are hereby prohibited from:-
(a)approaching the Applicant and/or the child;
(b)go to or remain within 200 metres of any place where the Applicant and/or child live;
(c)contacting or attempting to contact the Applicant and/or the child by any means;
(d)attempting to locate, follow or keep under surveillance the Applicant and/or the child;
(e)publishing on the internet, by email, posts or other electronic communication any material about the Applicant and/or the child including on social media;
(f)approaching or contacting the child’s school or any child care or after-school provider;
(g)approaching or contacting the child’s counsellor and any medical and allied health professionals treating the child;
(h)approaching or contacting any place where the Applicant studies or works;
(i)exerting any pressure to spend time with the child on the Applicant and/or the child.
(10)For the purposes of s 11 of the Australian Passports Act 2005 (Cth) (“the Passports Act”) this order expressly permits the issue of a passport or travel documents (within the meaning of the Passports Act) for the child upon application by the Applicant.
(11)The Applicant is to arrange counselling and psychological support for the child, scheduled to commence as soon as practicable upon the child commencing to live in her fulltime care.
(12)The Applicant is permitted to provide a copy of these orders to:-
(a)any school, after-school care provider or extracurricular activity provider that the child attend from time to time;
(b)any general practitioner and any other allied health professionals including counsellors, psychologists, and/or psychiatrist;
(c)any government or non-government agency in relation to any matters concerning:-
(i)parental responsibility;
(ii)care of the child;
(iii)changing the child’s name;
(iv)the personal protection of the child and/or the Applicant;
(v)immigration and/or visa matters;
(vi)applying for and obtaining a passport for the child.
(13)The Applicant is permitted to provide a copy of the following documents to her own and/or the child’s treating counsellor, psychologist or psychiatrist:-
(a)Child Responsive Program Memorandum prepared by Ms D dated 13 September 2018;
(b)Child Responsive Program Memorandum prepared by Ms B dated 27 June 2019;
(c)Department of Health and Human Services Response pursuant to Section 69ZW Order dated 12 September 2019 ;
(d)Department of Health and Human Services Response pursuant to Section 69Z Order dated 14 April 2020;
(e)Family Report prepared by Ms B dated 21 September 2020.
(14)The First and Second Respondent be permitted to provide a copy of the Family Report dated 21 September 2020 to any counselling assisting them.
BY THE COURT IT IS ORDERED:
(15)The First and Second Respondents delete all photographs of the child which they have shared on their Facebook accounts.
BY CONSENT IT IS ORDERED:
(16)The First and Second Respondents delete all Facebook accounts registered in the child’s name or any variations of the child’s name including accounts in the name of ‘X Kitman’, ‘Z Kitman’ and ‘Y Kitman’.
(17)The Second Respondent delete any photographs, recording or images that she has of the Applicant’s vagina and other body parts that were taken during child’s birth.
BY THE COURT IT IS ORDERED:
(18)The First and Second Respondents provide the following to the Applicant by way of posting to her solicitor’s address within 7 days:-
(a)the child’s immunization book/records;
(b)a list of all medical and allied health professionals who the child has consulted both in Victoria and Queensland with contact details.
(19)That the appointment of the Independent Children’s Lawyer be discharged.
(20)That all extant applications be dismissed.
(21)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.
AND THE COURT NOTES:
A.The Applicant will take advice from the child’s counsellor as to the appropriate timing of officially changing the child’s name pursuant to order 8.
B.The First and Second Respondents will provide the Applicant with a supportive card/ letter (to be vetted by the Applicant) and any special toys or belongings belonging to the child delivering these to the Applicant’s former address at H Street, Suburb J within 7 days.
C.The First and Second Respondents will arrange for the Mental Health Care Plan for the child currently held by Ms F, social worker to be transferred to Ms C, psychologist.
I certify that the preceding one hundred and fifty-six (156) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 9 November 2020.
Associate:
Date: 9 November 2020
Key Legal Topics
Areas of Law
-
Family Law
-
Equity & Trusts
Legal Concepts
-
Consent
-
Natural Justice
-
Procedural Fairness
-
Remedies
-
Injunction
-
Jurisdiction
0