FERRER & KIER
[2015] FamCA 45
•3 February 2015
FAMILY COURT OF AUSTRALIA
FERRER & KIER [2015] FamCA 45
FAMILY LAW – CHILDREN – Best Interests – Where there is one child aged 10 – Where the child currently lives with the mother and has recently ceased spending supervised time with the father – Where the mother seeks that she have sole parental responsibility, that the child live with her and spend no time with the father – Where the father seeks that the parents have equal shared parental responsibility and by way of staged implementation, that the child mainly live with him – Where the ICL seeks that the mother have sole parental responsibility for the child, that the child live with her and the child spends time with the father for eight hours on Saturdays – Where the child has a meaningful relationship with both parents – Where there is a poor relationship between the parents – Where the child has been displaying sexualised behaviours and a high level of anxiety – Where the mother alleges the father has sexually assaulted the child – Where the mother suffers from Pulmonary Arterial Hypertension – Where the father alleges that members of the mother’s family pose a risk to the child – Where the father raises concerns regarding the mother’s poor health – Where 38 risk of harm reports have been made to the Department of Family and Community Services – Where no unacceptable risk of abuse was found to arise from any of the proposals of the parties – Where the Family Consultant did not recommend any change to the mother’s sole parental responsibility – Orders made for the mother to have sole parental responsibility for the child – Where it is found that equal time would not be in the best interests of the child – Orders made for the child to live with the mother and spend time with the father for two hours on Saturday increasing to eight hours when child is 12.
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65D, 65DAA, 65DAC
B v B (1993) FLC 92-357 Champness & Hanson (2009) FLC 93-407
M v M [Child Abuse] (1988) 166 CLR 69
McCall & Clark (2009) FLC 93-405
APPLICANT MOTHER: Ms Ferrer
RESPONDENT FATHER: Mr Kier
INDEPENDENT CHILDREN’S LAWYER: Ms Adams
FILE NUMBER: SYC 7053 of 2007
DATE DELIVERED: 3 February 2015
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Loughnan J
HEARING DATE: 10 – 12 November 2014 REPRESENTATION
APPLICANT MOTHER: Self-represented
RESPONDENT FATHER: Self-represented
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Guterres
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Adams Orders
1.That all previous parenting orders in relation to the child N born … 2004 (“the child”) be discharged.
Parental Responsibility
2.That the child’s mother, Ms Ferrer, shall have sole parental responsibility for the child save:
i.That the mother provide the father, Mr Kier, with written notice as soon as practicable and in any event at least seven days in advance of any decision the mother intends to take in the exercise of her parental responsibility; and
ii.That the mother advise the father, in writing and within 48 hours of having taken any such decision.
Live With
3.That the child shall live with the mother.
Time
Until the child turns 12 years of age:
4.That unless the parents otherwise agree in writing the child shall spend time with the father between 10.00 am and 12.00 pm each alternate Saturday, to commence on the first Saturday following the making of these orders.
5.In addition to the time specified in order 4, the child shall spend time with the father between 10.00 am and 12.00 pm on the first Saturday falling after each of the following special occasions; the father’s birthday, Mr T Kier’s birthday, Mr K Kier’s birthday and Christmas Day.
6.That the child shall spend time with the father between 10.00 am and 12 noon each Father’s Day.
Upon the child turning 12 years of age:
7.That unless the parents otherwise agree in writing the child shall spend time with the father between 10.00 am and 6.00 pm each alternate Saturday, to commence on the first Saturday following her 12th birthday.
8.In addition to the time specified in order 7, the child shall spend time with the father between 10.00 am and 6.00 pm on the first Saturday falling after each of the following special occasions; the father’s birthday, Mr T Kier’s birthday, Mr K Kier’s birthday, Christmas Day.
9.That the child shall spend time with the father between 10.00 am and 6.00 pm each Father’s Day.
Handover
10.That within 48 hours of the making of these orders the mother shall, in writing, nominate and advise the father and the Independent Children’s Lawyer of a location at which the child shall be collected and delivered at the commencement and conclusion of the father’s time for the purposes of these orders.
11.That unless the parents otherwise agree in writing, the location nominated by the mother in accordance with the above order shall thereafter be the handover location for the purposes of these orders.
12.That unless the parents otherwise agree in writing the mother shall cause the child to be delivered to the father, or his nominee, at the handover location at the commencement of the father’s time and the father shall return the child to the mother or her nominee at the conclusion of that time.
13.In the event the mother does not nominate a handover location in accordance with these orders, the handover location shall be at B Railway Station, in the foyer on I Street.
Schooling
14.That the mother shall provide to the child’s current school and thereafter any other school that the child may attend from time to time, an irrevocable written authority to forward to the father at his cost, copies of the child’s school reports, school photos, circulars and any other information that the school normally provides to parents from time to time.
15.That notwithstanding any other order, these orders shall act as an authority to any school that the child may attend from time to time, to provide the father with the information referred to in the order above.
16.That the Independent Children’s Lawyer is at liberty to forward a copy of these orders to Ms A, principal of School C.
17.That the father be permitted to attend any Father’s Day activity at the child’s schools to which parents are normally invited to attend.
18.That subject to any direction that may be given by that school, the father be otherwise permitted to attend activities at the child’s school to which parents are normally invited to attend.
Medical/therapeutic matters
19.That each party shall advise the other at the first available opportunity in the event that the child requires hospitalisation while the child is in that party’s care.
20.That, in any event, the mother shall advise the father in writing in the event that the child requires surgery or ongoing medical treatment.
21.That the mother shall authorise Dr D, of Medical Practice E, to release to the father information in relation to the child’s medical care upon the father’s request.
22.That for the purposes of these orders the father shall not make any more than one request every six months for information about the child’s medical care, from Dr D and the father shall be liable for any cost associated with the provision of such information.
23.That the father’s request for information to Dr D shall be limited to the following:
i. date of the child’s attendance;
ii. any diagnosis/prognosis made for the child; and
iii. medical treatment prescribed for the child.
24.That the mother shall arrange, and ensure that the child attends, the first available appointment with Ms F, clinical psychologist, following the making of these orders.
25.That the mother shall comply with all recommendations made by Ms F in relation to the child, including:
i. ensuring the child attends all appointments made with Ms F;
ii.complying with any prescribed or recommended treatment for the child; and
iii.attending upon any other therapist or program as recommended by Ms F.
26.That Ms F, at her sole discretion, shall be at liberty to contact and/or meet with the father for the purposes of any therapy provided to the child.
27.That the ICL shall be at liberty to forward to Ms F a copy of these orders, the family reports of Ms G prepared in the proceedings, the reasons for judgment, and the contact details of the father.
Mother’s health
28.That the mother shall inform the father in the event that, due to medical reasons, she is unable to provide full-time and ongoing care for the child.
Restraints
29.That the mother shall be restrained from allowing the child to have any unsupervised time with Mr H and shall otherwise be restrained from allowing the child to reside in the same household as Mr H.
30.That each party shall be restrained from denigrating the other party in the child’s presence or within the child’s hearing.
31.That each party shall be restrained from discussing with the child any allegation raised in these proceedings or from otherwise showing the child any court documents.
32.That each party shall use their best endeavours to ensure that no third party denigrates the other party in the child’s presence or within the child’s hearing and shall remove the child in the event that any third party attempts to do so.
33.That each party shall be restrained from removing the child from the Commonwealth of Australia and that the child’s name shall be placed on the airport watchlist until she attains the age of 13 years.
34.Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975, 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.
35.Leave is granted to the parties to apply within 28 days, on giving at least seven days’ notice to the Court and each other in relation to these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ferrer & Kier has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
FAMILY COURT OF AUSTRALIA AT FILE NUMBER: SYC7053 of 2007
Ms Ferrer Applicant
And
Mr Kier Respondent
REASONS FOR JUDGMENT
Introduction
1.These are parenting proceedings about N (“the child”), who is 10 years of age.
2.Pursuant to orders made in contested proceedings on 14 October 2011, the child lives with her mother Ms Ferrer (“the mother”), who exercises sole parental responsibility for her. In what are the third set of proceedings between her parents since October 2007, the mother’s primary application is that the father Mr Kier (“the father”) spend no time with the child. The father seeks orders including equal shared parental responsibility for the child and by way of staged implementation, that she live mainly with him.
Applications
3.According to the Amended Case Outline[1] that was handed up in Court on 12 November 2014, the applicant mother sought the following orders:
I seek for [the child] to live with the mother. For the mother to have Sole Parental responsibility. To have no contact with the father. For the father not to attend [the child’s] school.
If your honour seeks the father time then I would like the Contact Centre re instated.
[1] Exhibit 19.
4.According to his Amended Case Outline[2] document handed up in Court on 12 November 2014, the respondent father sought the following orders:
[2] Exhibit 18.
The Applicant father seeks orders including equal shared parental responsibility and full time care of [the child] building over time.
1.Visitation initially two days every second weekend for a period of two months then increased to every weekend, (to enable [the child’s] weekend social activities) for a further two months.
2.Changeovers to be at [the child’s] school so the parties do not have to meet.
3.Following this initial settling period, [the child] to reside with The Father and have alternate weekend visitation with The Mother.
4.School holidays to be split in half with each parent, with a changeover location to suit both the Mothers and The Fathers concerns, possibly [the child’s] counsellor could facilitate this. The Father is open to suggestions by the mother as to which half will suit her best.
5.The Father is to be included in and participate in [the child’s] counselling sessions.
6.[The child] to be made available for regular phone and or internet contact (twice per week as a minimum) with all [the child’s] family members including her brothers [Mr T Kier] and [Mr K Kier], Paternal Grand Parents [Mr Kier Snr] and [Ms J] while [the child is] in The Mothers care.
7.The same availability for phone contact with the Maternal Parent’s family when [the child] is in the fathers care.
8.The mother to either return to [the child] the phone The Father has given [the child], or replace it and ensure [the child] has phone credit to make calls as [the child] requests, ([Company O] offers a $44.90 per month prepay package that offers unlimited local calls and text within Australia) to either parent and or to her counsellor in private if [the child] requests. These three phone numbers are to be entered into [the child’s] contact list and [the child] is to have it explained to her that she may call any of these three people anytime to discuss anything she feels she needs to discuss.
9.[The child] is to have her own room to sleep in and is not allowed to have any other party sleep in that room. It is accepted that [the child] may require comforting prior to falling asleep.
10.Birthdays and Christmas to be shared alternately with each parent. (ie. If [the child] is with one parent for her birthday, she is with the other for Christmas.)
11.[The child] is to continue … choir for as long as she enjoys it, and take up at least one physical activity or team activity in addition to choir, to assist with and encourage social skills, team spirit and fair play. Whichever parent [the child] is in the care of is to facilitate this. The Mother to continue to pay fees of choir. The Father will pay for a second activity.
12.The Mother makes [the child’s] Passport available for short visits to see relatives in New Zealand.
13.[The child] is not to be left alone in the care of the Maternal Grand Mother ([Ms L Ferrer]).
14.[The child] is not to be left alone in the care of Maternal Uncle ([Mr H]).
15.[The child] is not to be left alone in the care of half-brother ([M]).
16.[The child] is not to be left alone in the care of half-brother ([Mr T Kier]).
17.[The child] is not to be left alone in the care of half-brother ([Mr K Kier]).
18.The mother be restrained from making negative comment about the father.
19.The Maternal Grand Mother be restrained from making negative comment about the father.
20.The Father be restrained from making negative comment about the father.
21.Should the parent [the child] is in the care of require child minding assistance for [the child], the other parent is to be offered the first opportunity to provide that assistance.
22.The Maternal Grandmother is not to attend changeovers.
23.The Mother be restrained from offering any threat, promise or inducement to [the child] with respect to the time she is to spend with the Father, and the Mother use her best endeavours to ensure no third party does so.
24.The Father be restrained from offering any threat, promise or inducement to [the child] with respect to the time she is to spend with the Father, and the Father use his best endeavours to ensure no third party does so.
25.Both parents are to seek and attend counselling for their own grief and concerns that have been raised throughout the proceedings, and to enable them to seek and find better ways to cope with and address their past and present concerns in relation to [the child] without further litigation, at their own cost.
26.Court Orders are to be made available to [the child’s] School, [the child’s] counsellor, the Fathers counsellor and the Mothers counsellor.
27.[The child] is to continue to attend [School C] primary until she is of age to advance to intermediate school Both parents will contribute to [the child’s] annual school fees as of 2015.
28.The Mother pay costs.
5.An Independent Children’s Lawyer (“ICL”) was appointed for the child. The ICL’s proposals were set out in a draft document submitted during final submissions on 12 November 2014. That document was provided in final form by email on 18 November 2014. The ICL proposed:
1.That all previous parenting orders in relation to the child [N] born … 2004 (“[the child]”) be discharged.
Parental Responsibility
2.That [the child’s] mother, [Ms Ferrer], shall have sole parental responsibility for [the child] conditional upon:
i.that the mother provide the father, [Mr Kier], with 7 days notice in writing in advance of any decision the mother intends to take in the exercise of her parental responsibility;
ii.that the mother advise the father, in writing and within 48 hours of having taken any such decision.
Live with
3.That [the child] shall live with the mother.
Time
4.That [the child] shall spend time with the father between 10 AM and 6 PM each alternate Saturday, to commence on the first Saturday following the making of these orders.
5.That [the child] shall spend time with the father between 10 AM and 6 PM on the first Saturday falling after each of the following special occasions; the father’s birthday, [Mr T Kier’s] birthday, [Mr K Kier’s] birthday, Christmas Day.
6.That the time [the child] shall spend with the father on special occasions, in order 5, shall be in addition to the father’s time with [the child] each alternate Saturday.
7.That [the child] shall spend time with the father between 10 AM and 6 PM each Father’s Day.
Handover
8.That within 48 hours of orders the making of these orders the mother shall, in writing, nominate and advise the father and the Independent children’s lawyer of a location at which [the child] shall be collected and delivered at the commencement and conclusion of the father’s time for the purposes of these orders.
9.That the location nominated by the mother in accordance with the above order shall thereafter be the handover location for the purposes of these orders.
10.That the mother shall cause [the child] to be delivered to the father, or his nominee, at the handover location at the commencement of the father’s time and the father shell return [the child] to the mother or her nominee at the conclusion of that time.
11.In the event the mother does not nominate a handover location in accordance with these orders, the handover location shall be at [B Railway] Station, in the foyer … on [I] Street.
Schooling
12.That the mother shall provide to [the child’s] current school and thereafter any other school that [the child] may attend from time to time, an irrevocable written authority to forward to the father copies of [the child’s] school reports, school photos, circulars and any other information that the school normally provides to parents from time to time.
13.That notwithstanding any other order, these orders shall act as an authority to any school that [the child] may attend from time to time to provide to the father with the information referred to in the order above.
14.That the Independent children’s lawyer is at liberty to forward to Ms [A], Principal of [School C] a copy of these orders.
15.That the father be permitted to attend any Father’s Day activity at [the child’s] school’s and to which parents are normally invited to attend.
16.That the father be otherwise permitted to attend activities at [the child’s] school to which parents are normally invited to attend, and subject to any direction that may be given by that school.
Medical/therapeutic matters
17.That each party shall advise the other at the first available opportunity in the event that [the child] requires hospitalisation whilst [the child] is in that party’s care.
18.That, in any event, the mother shall advise the father in writing in the event that [the child] requires surgery or ongoing medical treatment.
19.That the mother shall authorise Dr [D], of [Medical Practice E], to release to the father information in relation to [the child’s] medical care upon the father’s request.
20.That for the purposes of these orders the father shall not make any more than one request every 6 months for information about [the child’s] medical care, from Dr [D] and the father shall be liable for any cost associated with the provision of such information.
21.That the father’s request for information to Dr [D] shall be limited to the following:
i.date of [the child’s] attendance
ii.any diagnosis/prognosis made for [the child]
iii.medical treatment prescribed for [the child].
22.That the mother shall arrange, and ensure that [the child] attends, the first available appointment with [Ms F], clinical psychologist, following the making of these orders.
23.That the mother shall comply with all recommendations made by [Ms F] in relation to [the child], including:
i.ensuring [the child] attends all appointments made with Ms [F],
iicomplying with any prescribed or recommended treatment for [the child];
attending upon any other therapist or program as recommended by Ms [F].
24.That Ms [F], at her sole discretion, shall be at liberty to contact and/or meet with the father for the purposes of any therapy provided to [the child]
25.That the ICL shall be at liberty to forward to Ms [F] a copy of these orders, the family reports of Ms [G] prepared in the proceedings, the reasons for judgment, and the contact details of the father.
Mother’s health
26.That the mother shall inform the father in the event that, due to medical reasons, she is unable to provide full-time and ongoing care for [the child].
Restraints
27.That the mother shall be restrained from allowing [the child] from having any unsupervised time with [Mr H] and shall otherwise be restrained from allowing [the child] to reside in the same household as [Mr H].
28.That each party shall be restrained from denigrating the other party in [the child’s] presence or within [the child’s] hearing.
29.That each party shall be restrained from discussing with [the child] any allegation raised in these proceedings or from otherwise showing [the child] any court documents.
30.That each party shall use their best endeavours to ensure that no third party denigrates the other party in [the child’s] presence or within [the child’s] hearing and shall remove [the child] in the event that any third-party attempts to do so.
31.That each party shall be restrained from removing [the child] from the Commonwealth of Australia and that [the child’s] name shall be placed on the airport watchlist until she attains the age of 13 years.
Written Evidence
6.The applicant relied on:
·Initiating Application filed 27 May 2013;
·Affidavit of the mother filed 1 October 2014;
·Affidavit of Ms P filed 28 August 2013; and
·Affidavit of the maternal grandmother filed 1 October 2014.
7.The respondent relied on:
·Affidavit of the father filed 10 October 2014;
·Affidavit of the paternal grandmother filed 10 October 2014;
·Parenting Questionnaire of the mother filed 1 July 2014; and
·Parenting Questionnaire of the father filed 4 July 2014.
Expert Evidence
8.The following expert evidence was relied on:
·Family Report of Ms G dated 20 May 2014;
·Addendum to Family Report dated 7 October 2014; and
·Project Magellan Report dated 12 December 2013.
The Hearing
9.The hearing commenced on Monday 10 November 2014. On 12 November 2014 judgment was reserved. Neither of the parents had legal representation. The ICL was represented by counsel.
Short History
10.The father was born in New Zealand in 1970. As at the date of the hearing he was 44 years of age. The mother was born in Australia in 1976. As at the date of the hearing she was 37 years of age. The parents are first cousins. They started to live together in 2002. The evidence is not entirely clear about the periods of cohabitation but the parents finally separated in 2007. The parents have other children but the child, who was born in 2004, is the only child of their relationship.
Credibility and Submissions
11.There are significant issues in dispute between the parents. As is often the case with family law proceedings, there is little by way of independent material to corroborate or exclude the testimony of the parents or the other lay witnesses.
12.The parents were not good witnesses. That is not to say that they necessarily set out to mislead the Court. However, it is not possible to simply prefer the evidence of one party over that of the other, on all issues.
13.The parents’ affidavits are confusing in parts. Reading a passage from the father’s affidavit at paragraphs 92 to 95 inclusive, one would think that the father lived in New Zealand between July 2005 and October 2010 – in those paragraphs he deposes that he came to Australia in July 2005 to visit his “abducted” daughter; after 10 days he returned to New Zealand to close down his business; he became engaged in litigation with the local council; he moved to Australia in October 2010. However, the balance of his affidavit suggests that the parents lived together in Australia, from July 2005 until 28 September 2007.
14.In the same vein, in respect of the incidence of the child soiling and wetting herself, paragraphs 57 and 152 of the mother’s affidavit cannot be reconciled with paragraph 54.
15.In addition to the problems of presenting their evidence, in my view, the evidence of the parents has been greatly affected by the state of their relationship. The parents are greatly aggrieved about various aspects of their relationship and interaction and they have very low opinions of each other. In that context, where they give very different versions of the same events, it is possible that they simply recall events from their own perspectives.
16.As to particular problems with their evidence:
·An example of the problems is seen in the parents’ evidence about when they started living together, something that should not be controversial. The father deposed that the mother and [M] flew to New Zealand on 13 June 2002 and that they lived with him and his two sons. It is the mother’s evidence that the parents moved in together in December 2003 and commenced their relationship in March 2004 in New Zealand. In this instance the issue has been determined. In a judgment published on 17 October 2011, Federal Magistrate Sexton, (as her Honour then was), found that the parents commenced living together in 2002[3]. In that instance the father’s evidence was accurate and that of the mother was not.
·As is referred to later in these reasons, the father gave evidence that he believes that the maternal grandmother (his aunt) has literally poisoned the mother and her brother, among others, thereby causing the serious illnesses they each suffer. In each case the father contends that she has done that deliberately and for financial gain. There is no foundation for the father’s contention, it is bizarre and raises questions about his judgment.
[3] Which finding was in turn, based on a finding made in property proceedings between the parents in the Supreme Court of New South Wales.
Background Facts
17.The parents are first cousins because the maternal and paternal grandmothers are sisters.
18.The father has two sons from a previous relationship. Mr T Kier was born in 1991. Mr K Kier was born in 1997. In 2012 the mother told the child’s school principal[4] that the father also has two year old triplets. I could find no other reference to the triplets.
[4] Pastoral Care – Student Wellbeing report - part of Exhibit 6.
19.The mother has a son from a previous relationship. M was born in 1998.
20.The father deposed that the parents commenced a relationship in October 2001 when the mother attended a funeral in New Zealand. The mother arrived in New Zealand on 13 October 2001 and returned to Australia on 5 November 2001.
21.In January 2002 the mother was involved in a serious car accident. Sadly and among others, the maternal grandfather died in the accident. The father flew to Sydney in February 2002 to offer support to the mother.
22.The parents started living together in 2002. The father deposed that the mother and M flew to New Zealand on 13 June 2002 and that they lived with him and his two sons.
23.The mother returned to Australia for surgery on 11 December 2002. The mother travelled to New Zealand on 9 April 2003 and returned to Australia on 22 September 2003, for an insurance assessment. The mother travelled to New Zealand on 14 October 2003.
24.The child was born in New Zealand in December 2004.
25.In March 2005, without notice to the father, the mother, the child and M moved to Sydney from New Zealand.
26.The father moved to Sydney from New Zealand in October/November 2005 and cohabited with the mother, the child and M.
27.In 2007 the mother and the child were accepted into the Brighter Futures program[5].
[5] Brighter Futures is a voluntary early intervention program of the NSW Department of Family and Community Services that seeks to identify families at risk earlier and prevent them from entering the child protection system by providing them with sustained services and support that will help prevent problems from escalating and achieve long-term benefits for children.
28.In April 2007 the mother was diagnosed with Pulmonary Arterial Hypertension. The father deposed that she was bed ridden until September 2007.
29.On 13 April 2007 a risk of harm report was made based on the diagnosis of Pulmonary Arterial Hypertension, that the mother was limited in the activities she could perform and required emergency childcare. A risk of harm report containing similar concerns was also made on 3 July 2007.
30.The parents separated on 28 September 2007, when the father moved out of the parents’ home.
31.On 11 October 2007 the mother lodged the first of three Initiating Applications in the Federal Magistrates Court (later known as the Federal Circuit Court) seeking parenting orders in relation to the child.
32.On 30 November 2007 interim consent orders were made providing that the parents have equal shared parental responsibility and that the child would live with the mother and spend time with the father on alternate weekends from Saturday morning to Sunday afternoon.
33.On 1 October 2008 final consent orders were made providing that the parents have equal shared parental responsibility and that the child would live with the mother and spend time with the father on three weekends out of four, from Saturday morning to Sunday afternoon and in the fourth week, on Thursday afternoon. The orders provided for additional time and school holiday time with the father after the child commenced school in 2010.
34.The father spent no time with the child from January 2009 to December 2009. The father deposed that the mother refused all access to the child at this time. On 21 December 2009 the Federal Circuit Court found that the mother had breached the parenting orders in respect of the child on four occasions, without reasonable excuse. It is likely that the main or a significant reason for the loss of contact between father and daughter in 2009 was the mother’s conduct.
35.In December 2009 the child was referred to clinical psychologist Ms Q.
36.On 15 November 2010 the mother filed her second Initiating Application.
37.On 14 October 2011, after a contested hearing, final orders were made by Federal Magistrate Sexton whereby the mother had sole parental responsibility for the child and she was to live with the mother and spend time with the father each alternate Saturday from 11.00 am to 5.00 pm and during Christmas school holidays, from 11.00 am to 5.00 pm on alternate Wednesdays.
38.Although interim orders have been made since, it is those orders that each of the parents seeks to change.
39.In the course of her judgment, Federal Magistrate Sexton recorded that at the time of her referral to a clinical psychologist in December 2009, the child was found to be unable to control her toileting and to be soiling and wetting her pants at school. In those proceedings both parents had referred to incidents of bed wetting and the child’s teacher reported toileting problems in September and October 2010. The Federal Magistrate found that there was no medical evidence before the Court about the child’s enuresis but that the mother gave evidence that pathology testing had revealed no physical cause for the condition.
40.On 18 October 2011, Dr D referred the child to the enuresis clinic at the Hospital R.
41.On 25 June 2012 a letter the child had written to a Year 6 student at her school, came to light. The letter includes things such as:
·“come to my house and we can kiss with our clothes off, and kiss each others bums and do whatever you want”.
·“lets have sex, lets sleep together”.
·“I will even show your friends how I look when I am naked”.
·“don’t tell anyone about this, EVER”.
42.A request[6] was made on 26 June 2012 by the school principal and the mother for counselling for the child.
[6] See “Request for Primary Counselling – 2012” signed 26 June 2012 - part of exhibit 6.
43.A “Pastoral Care – Student Wellbeing” report[7] was completed by a school psychologist, between 21 August 2012 and 3 September 2012. The report referred to the letter the child had written and went on to record the mother’s concern that the child was being sexually abused by the father and the matters giving rise to that concern.
[7] Dated 3 September 2012 - part of exhibit 6.
44.The report was referred by school authorities to the Department of Community Services (“DFACS”) but not to the police.
45.Although the detail of her evidence is internally inconsistent, it is the mother’s case that from late 2011 the child wet the bed almost every night during the week and every night before and after spending time with the father.
46.The mother took the child to Child and Adolescent Mental Health Services[8] in December 2011 to begin treatment using a bedwetting alarm. It is the mother’s evidence that the child’s bedwetting was reduced within six to seven days and that the child eventually stopped bedwetting until June 2012.
[8] NSW Department of Health.
47.The mother deposed that in late 2011 to early 2012 the child began exhibiting signs of sexual behaviour. The mother deposed that on 24 February 2012 she observed the child touching her vagina inside her underwear.
48.The mother deposed that the child’s bedwetting returned in June 2012.
49.In July 2012 the child started seeing Dr S, child psychologist, at T Psychology Practice.
50.In August 2012 the child’s school arranged for her to see a psychologist at school.
51.From October 2011 until February 2013 the child spent time with the father in accordance with the orders of 11 October 2011.
52.On 15 February 2013 the mother took the child to see a paediatrician and enuresis specialist, Dr U in relation to bedwetting. The mother reported that Dr U told her that the child was unusually apprehensive about having an examination of her vagina and rectal area.
53.It is the mother’s evidence that in early 2013 Dr S saw a picture[9] drawn by the child, said that she had serious concerns about the picture and advised that the mother go to court and stop the father’s visitation with the child. The COPS entry from the Suburb V police station for 2 February 2013 includes the following observation in respect of a number of drawings said to be drawn by the child and provided to police by the mother: “These drawings were ‘child like’ in nature and did not disclose any evidence of a sexual offence. In fact the drawings could only be construed as child like ‘doodling’.” It is not clear whether the picture shown to Dr S was one of the pictures shown to the police.
[9] Annexure SJF8 to the mother’s affidavit sworn 1 October 2014.
54.The child visited the father on 16 February 2013. The mother deposed that the child soiled her pants before the visit and returned from the visit with wet pants.
55.The mother deposed that on 18 February 2013 Dr S told her that she had made five or six reports to DFACS over the previous few months and repeated that the mother should go back to court urgently and stop the child’s contact with her father.
56.The mother claimed that in February 2013 the child told her that she felt like a life is going to end, that someone will hurt her and that she always dreams about this.
57.The father’s time with the child ceased in February 2013.
58.On 6 March 2013 DFACS received a risk of harm report identifying ongoing concern over the child’s level of anxiety and psychosomatic symptoms.
59.On 15 March 2013 the mother took the child to see Dr U for a second consultation. The mother deposed that Dr U told her that she had made a report to DFACS.
60.On 25 March 2013 Dr S left T Psychology Practice and the child commenced seeing Ms F once a fortnight.
61.The mother deposed that on 27 March 2013 the father’s sons called the mother’s mobile and asked to speak with the child. The mother claimed that following conversations with her brothers and father, the child defecated in her pants.
62.The mother deposed that on 4 April 2013, the child told her mother that she wished to write a letter to be provided to her psychologist, which she then gave the mother permission to read. The child wrote a letter which said that during a sleepover with a friend called W, W had asked the child to take her pants off. The child wrote that she took her pants off and W touched her bottom. The mother deposed that W slept over at her home on two occasions, being in November 2012 and 9 March 2013. The mother contends that the incidents with W described by the child, did not occur.
63.The mother deposed that in May 2013 the child wrote a letter to Dr S saying that she had written a love note to an older boy named X which read: “We can have sex at my house… we can kiss each other’s bottoms”.
64.The mother commenced the current proceedings on 27 May 2013 when she filed the third and latest Initiating Application in the Federal Circuit Court. The mother sought that the previous orders made on 14 October 2011 be discharged, that she have sole parental responsibility for the child; that the child live with her and spend no time with the father.
65.On 25 June 2013 the mother filed a Notice of Child Abuse in the proceedings.
66.The proceedings were transferred to this Court on 10 September 2013.
67.On 18 December 2013 interim orders were made for the child to spend time with the father on each alternate Saturday from 10.30 am to 2.30 pm with changeover at the Z Contact Centre. In accordance with those orders the father’s time with the child recommenced on 22 February 2014.
68.Between 1 March 2014 and 5 July 2014 the father spent unsupervised time with the child on nine occasions.
69.On 12 July 2014 Z Contact Centre suspended the father’s time with the child. The mother claimed that the contact worker suspended contact due to information disclosed by the child.
70.On 24 July 2014 orders were made providing for supervised contact between the child and the father for two hour periods.
71.On 2 August 2014 supervised contact commenced between the child and the father.
72.On 22 August 2014 the father was advised by the contact centre that they were suspending access to the service due to the child’s level of anxiety. On 5 September 2014 the contact centre telephoned the father to explain the decision to suspend the visits, again emphasising the child’s increasing level of anxiety. On 9 September 2014 the mother was similarly advised by Z Contact Centre.
73.Prior to the hearing, the father last saw the child on 30 August 2014.
The Expert Evidence
74.The single expert was Ms G. Her qualifications include a Master of Couple and Family Therapy, a Master of Psychology (Forensic) and a Bachelor of Psychology (Honours).
75.Ms G’s work experience includes working as a: Family Consultant at the Family Court of Australia from February 2011 to present; Clinician in Multi-Systemic Therapy; Psychologist/Adolescent Drug and Alcohol Counsellor; Juvenile Justice Counsellor; and a Centre Psychologist and Child Protection Caseworker.
76.Ms G prepared a report in this matter dated 20 May 2014 and updated it in October 2014.
77.Ms G was cross-examined in respect of her reports and to the extent that she was challenged about them, did not resile from the observations and opinions expressed in those reports. I accept and significantly rely on the evidence of Ms G.
The Legislation
78.The law to be applied in parenting proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
79.Section 60B sets out the objects of the Part and the principles underlying those objects.
80.Section 60CA provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC identifies the matters that are relevant to the determination of what is in a child’s best interests. Section 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in ss 60CC(2) and 60CC(3) respectively.
81.The sequence of decision making for identifying appropriate parenting orders under Part VII starts with parental responsibility. Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility. The presumption may not apply but if it does apply, it can be rebutted. If an order will be made for equal shared parental responsibility, s 65DAA requires that the court consider making an order for equal time and if that is not ordered, for each party to have substantial and significant time. Findings are made by reference to what is in the child’s best interests.
82.For the purposes of the determination of these proceedings, I will adopt the following approach:
a.set out the proposals, including any options not advanced by a party that the parents addressed or could have addressed;
b.where possible and relevant, consider and make findings about matters set out in s 60CC;
c.consider and make findings about parental responsibility, including considering the presumption in s 61DA;
d.apply s 65DAA if relevant and assess the proposals in light of that provision;
e.if 65DAA is not relevant, assess the proposals against the best interests criterion;
f.consider and make findings about living arrangements; and
g.make orders.
The Parties’ Proposals
83.The ICL proposes the restoration of orders similar to those made on 17 October 2011.
84.The mother proposes that the father have no time with the child but in the event that the Court nevertheless orders time, that it be fully supervised. The father proposes that he share parental responsibility for the child and that changes be made over time to the effect that she would mainly live with him and spend time with the mother. The father told the Family Consultant that if he and the mother could communicate there should be an equal living arrangement. As they cannot, the child should mainly live with him.
85.Therefore it is agreed that the mother should at least share parental responsibility for the child and that the child should spend time with her, including time overnight and on an unsupervised basis.
86.The range of dispute on the key areas seems to be:
a)Whether the father should share parental responsibility with the mother or have no such responsibility;
b)Whether the father should have any time with the child and if so, whether she should mainly live with him; and
c)If the father has any time with the child, should it be supervised.
Section 60CC Considerations
87.The section specifies the following considerations:
Primary considerations:
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2)(a) the benefit to the child of having a meaningful relationship with both of the child‘s parents
88.A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.[10] That enquiry is “prospective” which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
[10] McCall & Clark (2009) FLC 93-405.
89.The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. The expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.[11]
[11] Champness & Hanson (2009) FLC 93-407.
90.It appears to be agreed that there is meaning in the relationship between the mother and the child. Both parents and the ICL seek that the child spend time with the mother and that the mother have parental responsibility, at least on a shared basis.
91.On the other hand, there are competing claims as to whether the child has a meaningful relationship with the father. The ICL submits she does and that the Court should be cautious about accepting the mother’s evidence about their relationship in circumstances where it is clear that the mother seeks to achieve a situation where the child does not have contact with the father. It is the mother’s case that the relationship between father and daughter is not worthwhile. In terms of parenting proceedings, that is a relatively recent contention. Interim consent orders made on 30 November 2007 and final consent orders made on 1 October 2008 provided that the parents have equal shared parental responsibility and that the child spend unsupervised time with the father. By giving her consent in each case, the mother signified that the relationship between father and daughter was important and valuable. Similarly the mother’s application before the Federal Magistrates Court in the proceedings leading to the judgment of 14 October 2011 suggests a similar view. In her Initiating Application filed in the current proceedings on 27 May 2013, the mother sought that the father spend no time with the child. However, in March/April 2014 the mother told Ms G that she sought orders that the father spend time with the child, albeit supervised.
92.Most of the father’s time with the child from October 2011 to January 2013 was on alternate Saturdays.
93.As the ICL submitted there is a particular need to ensure that the father’s relationship with the child is maintained, given the uncertainties surrounding the mother’s state of health. In April 2007 the mother was diagnosed with Idiopathic Pulmonary Arterial Hypertension (“IPAH”). In October 2011, Federal Magistrate Sexton found that as a result of that condition, there was uncertainty about the mother’s future physical health.
94.There was a substantial improvement in the management of the mother’s condition during 2013.
95.Associate Professor Y is a cardiologist associated with the Heart and Lung Transplant Unit at Hospital BB. He provided a letter in the mother’s case and responded to questions posed about that letter[12]. Associate Professor Y wrote that the mother’s medical condition is stable. He said that she is responding well to treatment. There has been no significant change in the progress of the mother’s disease since 2013. Associate Professor Y said that it is impossible to be certain that the mother’s condition will not change. He wrote: “Anybody’s medical condition can change. She has been very stable over the last couple of years but certainly anything is possible.” The necessary inference from those statements is that it is possible but not likely that the mother’s condition will deteriorate.
[12] Letter “To whom it may concern” dated 10 November 2014 and notes of questions and answers – exhibit 9.
96.I will refer again to the mother’s health later in these reasons but the evidence supports a finding that although her condition could change, the mother is in more robust health than she was at the time of the hearing in the earlier proceedings and for a year or so thereafter. That would explain the withdrawal of home help from the mother’s household.
97.Aside from the health issue, the ICL submitted the Court would find in evidence, other benefits to the child of retaining a relationship with the father, such as satisfying her own desire for such a relationship.
98.The child’s time with her father has been restricted. For example she did not see the father in 2009 nor for most of 2013.
99.Ms G said the Court should place weight on the child’s wish to spend time with the father, given that at the time she saw the child, she had not seen the father in an unsupervised environment, for close to a year. Ms G said she would have expected the child to be more reticent than she was, about expressing a favourable view of her father. The child’s wish to see the father is consistent throughout the independent material. For example, Ms F says that the child was excited about seeing the father and spoke favourably of him. Further, although the Contact Centre withdrew their services, the documents tendered from the service show that the child has a great time with the father. It was submitted the Court should place some weight on this given that the child is almost 10 years of age.
100.I am satisfied that there is a meaningful relationship between the child and her father and that subject to the other s 60CC considerations, orders should be made to promote that relationship.
(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.
101.‘Abuse’ and ‘family violence’ are defined terms.
“abuse” , in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
102.Section 4AB provides:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member ), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member‘s family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child‘s family towards another member of the child‘s family; or
(b) seeing or hearing an assault of a member of the child‘s family by another member of the child‘s family; or
(c) comforting or providing assistance to a member of the child‘s family who has been assaulted by another member of the child‘s family; or
(d) cleaning up a site after a member of the child‘s family has intentionally damaged property of another member of the child‘s family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child‘s family by another member of the child‘s family.
103.As to the approach required of Courts in cases involving allegations of child abuse, in M v M [Child Abuse] (1988) 166 CLR 69 the High Court said:
21.Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
….
24.In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
25.Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A v. A (1976) VR 298, at p 300), “an element of risk” or “an appreciable risk” (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), “a real possibility” (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a “real risk” (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an “unacceptable risk” (In re G. (a minor) (1987) 1 WLR 1461, at p 1469).
This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
Emphasis added
104.The approach to allegations of sexual abuse was reinforced in B v B (1993) FLC 92-357 where the Full Court referred to the decision in M v M (1988) FLC 91-979 saying:
It should be noted that the M v M “unacceptable risk” test is employed within the context of “resolving the wider issue”, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be “subservient and ancillary”. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act and Brown v Pederson (1992) FLC 92-271.
105.Therefore it is important to come back to the central proposition – the Court’s main and overarching task in these proceedings is not to make findings about the fact or otherwise (or the risk or otherwise) of family violence or abuse. It is to identify orders that will promote the best interests of the child. In dealing with this criterion, the task is to determine whether, on the evidence, there would be an unacceptable risk of abuse occurring under such orders as have been proposed by the parties or may be imposed by the Court.
106.As to the standard of proof s 140 of the Evidence Act 1995 (Cth) provides:
Civil proceedings: standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject-matter of the proceeding; and
(c)the gravity of the matters alleged.
107.Section 60CC (2A) deals with the weight to be given as between the primary considerations:
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Discussion
108.In these proceedings there are allegations of sexual abuse, violence and neglect.
109.The mother contends that through the father, the child was and will again be exposed to family violence, sexual abuse and neglect.
110.The father contends that the child was and could again be exposed to family violence through the mother’s brother, Mr H and the maternal grandmother; to inappropriate behaviour by the mother’s son, M and the maternal grandmother; and to neglect because of the disabling impact of the mother’s poor health.
The mother’s allegations
111.It is the mother’s case that she fled New Zealand in March 2005 to escape from a violent relationship with the father.
112.On 12 October 2007 a risk of harm report was made alleging that the father had been verbally abusive, had hit M in the head and used marijuana in the children’s presence.
113.On 7 July 2009 an Apprehended Violence Order (“AVO”) was made protecting the mother from the father for 12 months. On 11 July and 23 July 2009 risk of harm reports were made to the effect that the father attended the mother’s home to see the child and damaged property.
114.The father deposed that the mother made a second AVO application in December 2009.
115.On 16 December 2009 a risk of harm report was made that the child was in distress in anticipation of upcoming contact with the father.
116.The mother deposed that in early 2010 the child began to wet and soil her pants. She also claimed that the child became very self-conscious and shy, refusing to allow anyone including the mother and doctors to see her vagina area and refused to allow anyone to wash her bottom and vagina.
117.On 23 January 2010 a risk of harm report was made about the child’s distress in relation to contact. The report also stated that the father swung his crutch at the mother at changeover, causing distress to the child. The latter incident was investigated and was not substantiated.
118.On 27 January 2010 a risk of harm report was filed after the child disclosed that she slept with her father on the couch and that another three teenage boys lived in the home.
119.On 10 March 2010 a risk of harm report was filed about the child’s exposure to marijuana use by the father. A further report was made on 24 August 2010 alleging that the child had been exposed to her older brother’s drug use.
120.The father deposed that the mother attempted to obtain a third AVO in early 2010 after an event occurred where the maternal grandmother, Ms L Ferrer and the mother pushed the father and snatched the child from him.
121.The father deposed that the mother attempted to obtain a fourth AVO in mid-2010.
122.On 23 September 2010 a risk of harm report was made to the effect that the child was taken to the doctor due to constant wetting her pants, that she had produced sexual drawings and had been exposed to the father’s marijuana use.
123.On 12 October 2010 the mother made a risk of harm report stating that she was concerned the father had sexually abused the child.
124.On 29 October 2010 the mother made a risk of harm report about distress over contact, sexual pictures and the child defecating in her pants. The mother raised concerns about various drawings that the child has done. She referred to a drawing of the child’s from 2010, which the mother deposed depicted a man with a penis which the child had said was her father.[13] She also referred to a drawing found in April 2013 that depicts two people and their genitals.[14] The mother reported both drawings to the child’s psychologist and the 2010 drawing to DFACS.
[13] Exhibit 2.
[14] Annexure 8 to the mother’s affidavit.
125.On 1 November 2010 the mother made a risk of harm report which alleged that the child was showing regressive behaviours following contact, had drawn pictures sexual in nature and had masturbated frequently.
126.On 5 November 2010 the mother filed a risk of harm report alleging among other things, that domestic violence had occurred between the parents and that the child had witnessed the father’s drug use and violence.
127.The mother said that in November 2010 the child came home after spending time with the father with a red, sore and irritated vagina that appeared more “open” than it had otherwise been. She said that from this point the child refused to let the mother wash her vagina and bottom. The mother subsequently took the child to see Dr CC at Medical Practice E. Dr CC did not examine the child but suggested that the mother call the trauma unit at Hospital DD. The mother deposed that the trauma unit did not want to examine the child as they said this would be traumatic for the child and that they probably would not be able to see anything. The mother reported the incident to DFACS. The mother made a risk of harm report about the incident on 10 November 2010.
128.The mother deposed that in late 2010 the child made statements that suggested she had been exposed to the father and his elder son Mr T Kier engaged in marijuana use.
129.On 7 September 2011 the mother made a report to DFACS alleging that the child “flashed” her brother and was putting her hands inside her underwear when watching television.
130.There has already been a hearing about events up to September 2011. The hearing before Federal Magistrate Sexton concluded on 28 September 2011. The parents’ concerns prior to that date were before the court or could have been before the court at that hearing. In a judgment dated 17 October 2011, Federal Magistrate Sexton did not find that the father had abused the child. Indeed and importantly, it was noted that neither the mother nor the ICL submitted in those proceedings that the evidence before that court supported such a finding. However, the court did find that the father had committed family violence. The court accepted the mother’s evidence about a violent incident leading to an AVO against the father on 7 July 2009. The Court accepted the mother’s evidence cited at paragraph 58 of the reasons for judgment and indeed commented on behaviour by the father during the hearing that was consistent with the mother’s complaints. Paragraph 60 of the judgment is as follows:
60.When they lived in New Zealand between 2003 and 2005, the Mother describes the Father constantly yelling at the children and smacking them. In particular, the Mother alleges the Father used to punish [M] including “beating” him on the head. She alleges that the Father pushed [the child N]. [M] told Dr [EE] that the Father would sometimes lose his temper and “take it out on the kids.” [The child] has said to the Mother, “when I cry Dad yells and I can’t stop crying. He says ‘shut the fuck up’ but I can’t stop crying…” While the Father acknowledges smacking and yelling at the children at times “as does any parent”, he denied the extent of the Mother’s claims. When asked in cross examination why [M] had a mark on his forehead after he allegedly hit him on his head, the Father said [M] was extremely clumsy and always had marks on him. I do not accept the Father’s evidence on this issue. I am satisfied that the Father’s conduct has at times fallen within the definition of family violence and that [the child N] is likely to have been psychologically harmed by exposure to this behaviour.
131.The definitions of abuse and violence in the Act were amended in the period between the two sets of proceedings but I am satisfied that behaviour falling within the earlier definitions would also fall within the current definitions. If anything, because of the change in definitions, the findings made in the earlier proceedings could only understate the incidence of abuse or violence.
132.The mother conceded that there have been no incidents of violence between the parents since 2009. I suspect that the mother meant physical violence.
133.The mother deposed that on 19 November 2011 after spending time with the father, the child said “there are cameras in Dad’s place. They are in the bathroom too. Dad said the cameras are only there to video the cats.” She also deposed that she observed the child to be red-faced, hot and feverish with her head resting on the father’s lap at changeover.
134.The mother deposed that on 10 December 2011 the child returned from the father’s house smelling heavily of smoke. She said the child later climbed on top of her and kissed her with her whole body lying on top of hers. The mother deposed she had never seen the child do this before.
135.The mother said that she observed the child masturbating on three to four occasions. She referred to an incident in February 2012 when she was at the theatre with the child and saw her put her hands inside her underwear and touch her vagina. She deposed that she had also observed the child to masturbate on her bed at home.
136.The mother deposed that on or around 25 June 2012 she discovered that the child had written to an older boy at her school, named X. Versions of the letter are in evidence and contain references to sex, being naked and “kissing each other’s bumbs [sic]”. In her affidavit the mother deposed that one letter was found scrunched up in the bin, one was found by the maternal grandmother and one was found by the child’s school. In the mother’s oral evidence she said that the three letters were drafts of the same letter.
137.The mother deposed that the principal, Ms A advised the mother that as a result of the letter a report would have to be made to the DFACS.
138.The mother made a risk of harm report on 26 June 2012 referring to the letter to X, that the child tried to kiss the boy and that the child had previously returned from her father’s house with a red vagina.
139.The mother deposed that on 27 June 2012 the child asked Ms P (one of the child’s carers) whether they would be taking “naked photos” during the school holidays.
140.The mother claimed that on 6 July 2012 following contact with the father, the child defecated in her pyjamas and told the mother that the father bought her a lace leotard which is see-through and shows off her vagina.
141.On 10 July 2012 the mother made a report to DFACS to the effect that the child had tried to blow on the mother’s vagina, had tried to tongue kiss the mother and had reported to the mother that “daddy shows me his penis”.
142.DFACS received a report on 16 August 2012 alleging that the child had been demonstrating sexualised behaviour, had written letters to students of a sexual nature and asked her nanny whether she has to be naked for photos.
143.The mother deposed that in October 2012 the child came up to her and kneeled in front of her, trying to put her mouth in front of her vaginal area and blew her mouth.
144.On 4 October 2012 DFACS received a report alleging the child had displayed sexualised behaviours and that the mother believed that those behaviours had something to do with inappropriate things happening at the father’s home.
145.The mother deposed that in November 2012 the child returned from the father’s house wearing heavy makeup. The mother deposed that the child refused to have a shower to wash off the make up.
146.The mother said that in November 2012, she and the child were talking in the lounge room while the news about Cardinal Pell and sexual abuse alleged against Roman Catholic priests was on television. The mother deposed that she said to the child that if something like this happened to her, she should go and tell someone she trusts. She said that the child responded by saying that the person would say “don’t tell your mum”. The mother alleged that when asked who would say something like that, the child said “someone like my dad”.
147.On 21 November 2012 the mother made a risk of harm report which alleged that the child continued to display sexualised behaviours, continues to soil herself and that she stated her father “would do that” when watching news report about paedophile priests.
148.On 29 November 2012 DFACS received a risk of harm report in relation to history of domestic violence and sexual abuse.
149.The mother deposed that in December 2012 and on 23 February 2013 the child played inappropriately with Barbie dolls, placing the male doll on the ground facing up and the female doll on top of him.
150.On 15 December 2012 and in January 2013 the mother filed a risk of harm report which alleged that the child’s brother saw the child remove the clothes from a male doll and that the child and a female friend kissed one another on the lips at swimming lessons.
151.The mother deposed that in January 2013 the child told her that she had a nightmare that her father had bought her an iPad and loaded pictures with her and her father in different positions such as her on her hands and knees.
152.On 9 January 2013 the mother made a risk of harm report stating that the child had returned from the father’s house wearing heavy makeup.
153.The mother deposed that in early 2013 she found a drawing in the child’s room depicting male genitalia which she presented to Dr S. She deposed that Dr S advised her that she had serious concerns in relation to the drawing. The mother deposed that Dr S told her she had made a report to DFACS.
154.On 19 January 2013 the mother made a report to police in relation to concerns over the child’s sexualised behaviour. The child and Ms P were interviewed by police. No disclosures were made by the child. A risk of harm report was also made to DFACS.
155.The mother alleged that the child wrote a further letter on 4 April 2013. This letter was written to the child’s psychologist; however the child gave the mother permission to read the letter. The child deposed in the letter that during a sleepover with her friend W, that the child had taken her pants off and W had touched her bottom. Importantly, the mother deposed that she does not believe this occurred as she had closely supervised both sleepovers with W and had observed the girls fall asleep in different beds.
156.On 25 June 2013 DFACS received information regarding the child’s sexualised behaviours and indicators suggestive of sexual abuse.
157.The mother deposed that on 26 June 2013 she spoke to the child about the letter to X and that the child claimed that X made her write it.
158.In mid-July 2013 the mother took the child to a doctor for a vaginal and rectal examination. The father said this was against police and doctor’s advice.
159.On 30 August 2013 the child spent time with the father at the school’s father’s day breakfast. The mother deposed that the child arrived home at 9.00 am upset and with wet underwear.
160.The mother deposed that on 31 August 2013 the child said “…I’m scared of Dad”, that she was unable to breath and sleep in her own room and that she wet herself while asleep on the couch.
161.On 18 September 2013 a risk of harm report was made alleging that the child disclosed an incident about a girl from school having a bath with her dad, that the child had been using the mother’s phone to search for pornography and that the child had written letters about W touching her.
The father’s allegations
162.Rather than fleeing from his violent behaviour, the father contends that the mother fraudulently removed the child from New Zealand when the New Zealand authorities discovered that she had been wrongly receiving a single parents’ pension, despite living with him. In any event the father travelled to Sydney in July 2005 to see his daughter. He observed the child suffering from intense nightmares. He deposed that the mother and the child were living in crowded and unsuitable accommodation and that he assisted the mother to find suitable accommodation. The father made a risk of harm report to DFACS in respect of the child on 14 July 2005, alleging that the mother’s son, M, was making strange sexual gestures.
163.The father made a risk of harm report on 17 September 2005 alleging that the mother’s brother, Mr H, who resided with her had a mental illness and had been saying sexually inappropriate things to the children (the child N and M). The mother told the Family Consultant that she does not leave either of her children alone with Mr H, due to him being unwell. It is my understanding that there is no controversy between the parents about the child not being left in the care or presence of Mr H.
164.The father claimed that at this time the mother made allegations that M’s grandfather was possibly a child molester.
165.The father claimed that in late 2006 M disclosed that he showered and slept with the maternal grandmother. The father deposed that M had said to him that he had shared a bed with the maternal grandmother, that the maternal grandmother was not wearing underwear and that he had rubbed his foot against her genitals. The father said M asked him if the maternal grandmother had pubic hair. The father said that following the incident in 2006 he and the mother had agreed that the child was not to be left in the sole care of the maternal grandmother.
166.It is the father’s contention that the maternal grandmother has poisoned the mother, her brother and possibly others, for financial gain - so that she can retain a carer allowance. It is the father’s contention that the poisoning may have caused or exacerbated the health issues affecting the mother and her brother.
167.Although he contends that the child’s half-brother, M and her maternal grandmother behaved inappropriately to her, as well as denying the mother’s allegations that he sexually abused the child, the father does not believe that the child has been sexually abused at all.
Neglect
168.Both parents raise issues about the failure of the other to adequately care for the child. The mother holds a concern that persisted in the earlier proceedings and continue to some extent now, as to the adequacy of the father’s accommodation. At the time of the hearing before Federal Magistrate Sexton, the father’s accommodation did not include a bathroom and the makeshift facilities were inadequate for the child. I gather that the mother is also concerned about the lack of space in the accommodation currently occupied by the father and his two sons.
169.For his part the father holds concerns about the mother’s poor health and the lack of assistance available to her whether from her mother or from agencies that have provided support to her from time to time. The father complained that over a period after separation, the child had 38 different carers. The mother did not concede that proposition, contending that there were four main care givers and some temporary helpers. It is possible that both parents are correct on this point. I accept that the child has come into contact with many workers but that does not exclude the mother’s evidence that there was some consistency of personnel. The father complained that the mother moved into a home with her brother Mr H in 2011, notwithstanding her brother’s compromised mental health.
(3)(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;
240.Unfortunately, much of this material is repeated from earlier in the judgment.
241.The mother suffers from Idiopathic Pulmonary Arterial Hypertension. IPAH is a serious syndrome, with significant morbidity and mortality. It can be associated with progressive elevation of pulmonary artery pressure and can lead to right ventricular failure. The mother did not provide a comprehensive report or reports about her health. That meant that information about her health has been patched together from various sources.
242.The mother told Family Consultant, Ms G that the main symptom of the condition is intolerance to exercise due to limited lung capacity. She said that she may eventually require a heart and lung transplant. The mother deposed that her IPAH meant she could not drive and affected her ability to complete household chores and that an in home carer would come twice a day to assist with cooking, hanging out washing, making beds, food preparation, transportation for the child and grocery shopping. The mother’s condition involves her in a daily medication regime that takes 30 to 40 minutes to undertake. She gave evidence that she had to take pills and intravenous medication which she administers to herself. She also used an oxygen tank at home, stating that this was not used around the children.
243.The mother was receiving in home support for many years. Her community case manager wrote letters for her in May and August 2011[22] seeking support from GG Home Care. She said that the mother had been assisted by her organisation since her admission to hospital in 2007. In 2011 the mother was living with her mother and the children, M and the child N. The mother had assistance from Home and Community Care Services for her daily activities but relied on the maternal grandmother for transport and other assistance with the children. By August 2011 the maternal grandmother was no longer living with the mother. The maternal grandmother was in rehabilitation after spinal surgery and was no longer available to help with the children. Perhaps as a result of the advocacy of her community case manager, I gather that the mother received in home assistance with the children in 2012 and 2013. The records of GG Home Care[23] give some insight into the level of the mother’s disability, well into 2013. Some of the father’s concerns about consistency of child care staff are born out in the record of complaints from the mother about inappropriate staff and their failure to undertake required tasks.
[22] Exhibit 7.
[23] Exhibit 12.
244.The mother told the school authorities in August-September 2012[24] that she had serious health concerns and was on a waiting list for a heart and lung transplant. She had recently regained the ability to walk after a couple of years of using a wheelchair/scooter for transport.
[24] Exhibit 6.
245.On 7 March 2013 the mother’s general practitioner, Dr D wrote[25] in support of further financial support for the mother. Dr D wrote that the mother “now has right heart failure and has been placed on the transplant list and there are no more medical options of treatment.”
[25] Exhibit 1.
246.I understand that over the course of 2013 the mother’s health improved. In early 2014 the mother’s in-home care had ceased and her application for renewal was refused.
247.Associate Professor Y is a cardiologist associated with the Heart and Lung Transplant Unit at Hospital BB. He provided a letter in support of the mother’s case and responded to questions posed about that letter[26]. Without identifying it, Associate Professor Y wrote that the mother’s medical condition is stable. He said that she is responding well to treatment and is not and never has been listed for transplantation. He said that initially it was not known how the mother would respond to treatment and a transplant may have been needed. He went on “Her health has now stabilised on her current medication and so transplantation is not indicated.” There has been no significant change in the progress of the mother’s disease since 2013. In response to a confusingly expressed question about rapid change, Associate Professor Y said that it is impossible to be certain that the mother’s condition will not change. “Anybody’s medical condition can change. She has been very stable over the last couple of years but certainly anything is possible.” As I have found, given the way those propositions were expressed, the necessary inference is that it is possible but not likely that the mother’s condition will deteriorate.
[26] Letter “To whom it may concern” dated 10 November 2014 and notes of questions and answers – exhibit 9.
248.As I have noted, the mother did not call evidence from a treating practitioner in the normal way and that lead to the parents scrapping around trying to secure an authoritative opinion as to her current state of health. At the 11th hour an effort was made unsuccessfully to take oral evidence from Associate Professor Y. I make no criticism of Associate Professor Y in that regard. In circumstances where the mother must have known that her health was a significant issue in the matter, it is submitted by the ICL that the fact that she did not obtain a medical report for the Court, is telling. For my part, it was frustrating that the evidence about the state of the mother’s health was unclear but it is no more than that. The mother did not have legal representation and that may have contributed to the problem.
249.For the avoidance of doubt, I make no findings adverse to the mother because of the conflicting representations about the mother having been on a transplant list. I am satisfied that there was no attempt to mislead the Court and the accurate position is now identified in the evidence referred to above.
250.The available finding is that the mother has a serious medical condition that has restricted and may again restrict her capacity to parent and support the child. Happily, the mother’s condition is much better than it was and is stable. Importantly, it is better controlled now than it was at the time of the hearing before Federal Magistrate Sexton in 2011. The mother was asked about what would happen if she was unable to care for the child in the future. She had given thought to that question because she responded to the effect that the child and M could live with M’s father or could live with her mother. She was asked if she had discussed those scenarios with M’s father or the maternal grandmother and responded to the effect - they are both ok with the idea. In the latter regard, neither the maternal grandmother nor M’s father is a party to these proceedings and they do not have an application before the Court. No order could be made in favour of either of them, without their informed consent.
251.The mother told Ms G that her half-brother, Mr H has Bipolar Disorder. Mr H lived with the mother and the child in 2005. The mother described an incident where the child was five to six months old and she walked in on Mr H inappropriately shaking the child. She also gave evidence that Mr H acted sexually inappropriately around M when he was seven years old and that he talked about ‘private parts’ with M. The mother made a report to DFACS on 13 July 2005 stating that Mr H was talking about private parts and the mother’s vagina with M. She said that she made the report as a part of seeking assistance from the Department of Housing to find alternate accommodation.
252.The child told the Family Consultant that she had never been left alone with Mr H.
253.I am satisfied that the mother is alive to the risks posed to the child by Mr H but for abundant caution I will make an order restraining the mother from allowing the child to have unsupervised time with Mr H or from allowing the child to reside in the same household as Mr H.
254.The mother told Ms G that she had been advised not to point the finger at the father but Ms G considers that the mother believes that the father has abused the child. The mother does not believe that the father’s son, Mr T Kier is capable of supervising the father with the child. The mother told Ms G that she could see no benefit to the child in maintaining a relationship with her father.
255.In addition, the mother is concerned that the father is not capable of caring for the child and that he denigrates her to the child, discusses these proceedings with the child and seeks to influence her to spend overnight time with him.
256.The father has given evidence about the child wetting the bed, but as to daytime incidents, he told Ms G that he had never seen any evidence of the child wetting or soiling. He told the contact centre that incidents of the child wetting herself only arose if she forgot to go to the toilet. He told Ms G that he did not believe that the child has been sexually abused by anyone.
257.The father lost a leg in an accident many years ago. Federal Magistrate Sexton found that the father suffered pain from the use of a prosthetic limb. The father gave evidence in the hearing before me that he was seeking to access technical support from New Zealand in relation to his prosthesis.
258.In terms of the father’s capacity to provide for the child’s needs, he has rarely spent block periods of time with the child since separation. He said the longest period of time he has spent with her was four days in 2007 or 2008. The Family Consultant said that the father is placed in a difficult situation as he does not have the same understanding as would a parent who is parenting their child every day of the week. She was not concerned that the father would not be able to respond appropriately to any distress the child may have, but rather felt the problem would be his knowledge of the child and understanding of how the child might cope with things. She said that his capacity to be aware and attuned to her emotional needs and the management of the child missing her mother will be difficult for the father when he feels so negatively about the mother.
259.The father believes the conflict between the parents is solely caused by the mother. He said that when speaking about the mother to the child he has said that he and the mother were in a loving relationship that no longer exists. He deposed that the child has told him that the mother hates him. He conceded that the child might be aware that he does not like the mother, as she had seen his responses to the mother when he gets accused of things.
260.Although the maternal grandmother provides significant assistance to the mother and the child, the father asks for an order that the child not be left alone in her care. The father made allegations that the child and Mr K Kier have reported to him that the maternal grandmother “beat” them. He said that the child has not reported this to him, however he has read things in reports that have led him to believe this. Mr K Kier has not seen the maternal grandmother for eight years.
261.Remarkably, the father said he believes that the maternal grandmother relies on her children being sick in order to get an income from a carer allowance. He believes that the maternal grandmother is poisoning her family through the food she cooks.
262.The father deposed that in 2006 M had said to him that he had shared a bed with the maternal grandmother, that the maternal grandmother was not wearing underwear and that he had rubbed his foot against her genitals. The father said M asked him if the maternal grandmother had pubic hair. The father said that following the incident in 2006 he and the mother had agreed that the child not be left in the sole care of the maternal grandmother.
263.The ICL submitted that the Court would be concerned about both parents’ capacity to provide for the child’s emotional and psychological needs. It is quite extraordinary, in circumstances where the parents have engaged in extensive litigation and been to this Court on three occasions that they are in dispute about the source of the child’s anxiety. Both parents entirely suggest the cause of anxiety falls on the other side. The evidence suggests that the child has suffered anxiety.
264.Importantly, neither parent has a favourable view of the other. The mother was asked by Ms G if she could see any benefit for the child of her maintaining a relationship with her father. The mother could see none, save for access to a family history for medical issues. The mother agreed that there is the potential negative impact for a child to be excluded from one parent but said that some children experience psychological problems as a result of their relationship with a parent. Although they had different intake procedures for the contact centre – the mother over the telephone and the father in person, the centre notes record that the father was more openly hostile about the mother than she was about him.
265.The father told Ms G that he accepts that the mother is genuinely fearful of him. However, he rejects that there are any reasonable grounds for those fears.
266.There is evidence suggesting that the father is not as sensitive and does not display as much insight in relation to the child as he could. The contact centre notes record[27] that the father made an observation to the child about her presentation – her smell and that the child seemed upset by his reaction to how she dresses and how she smells. On 12 July 2014 the child told contact centre staff that her dad was constantly commenting on how she looked, for example telling her that she was fat or talking about how she needed to clean her teeth. She said that her father pinches her tummy and laughs. On 2 August 2014, contact centre staff asked the father not to criticise the mother’s care of the child as it was having a negative effect on the child but he continued to do so. The visit on 30 August 2014 was not a comfortable experience for the child with the father focussing on topics that appeared to make her anxious. At one point the child told a worker that she did not feel safe with her dad. The centre notes record:
As observed at previous visits and handovers, [the child] presents as anxious. The level of anxiety is a concern; there is a lack of spontaneous play and talk, instead [the child] talks continuously, jumping from one topic to another in an unrelated manner. Her body language is rigid/tense. She appears to be masking her emotions, and will regularly smile and appear okay, however it seems she has felt unsafe with her father over the last few sessions inside the centre. It seems she is worried about something happening when her brothers are not present, she wasn’t able to give concrete reasons for this, however she said she felt like this a lot of the time. [The child] frequently complains about feeling sick in the stomach, and this has been documented several times since this family started using the centre.
[27] Exhibit 13.
267.The contact centre notes record the import of a telephone communication between centre staff and the father on 5 September 2014. The father was upset and frustrated by the decision to suspend his visits with the child. He could not understand why the centre could not identify the source of the child’s anxiety, which in his view, was the fact of her being kept from him.
268.However, in the same vein, there is reference in the notes of the visit on 1 March 2014 to the mother asking the child to take up issues with the contact centre staff, that in the view of the staff should more properly have been taken up directly by the mother.
269.I note that the evidence from the contact centre is necessarily about the father’s interaction with the child. I accept that if the mother’s interaction with the child was exposed to the same type and level of scrutiny, issues about her parenting capacity may also have come to light.
270.The Family Consultant assessed that both parents are capable of providing adequately for the child’s needs. The May 2014 report reflected the observations at March and April 2014 interviews. Ms G noted that the mother had been assisted by her mother and in home help but that the in home help had recently ceased. She opined “There is nothing significant at this stage to suggest that [the mother] is not capable of meeting [the child’s] needs but these issues need to be kept in mind when considering current and future parenting arrangements.” And later “[The mother] appears to have a balanced and flexible way of thinking about her parenting. She appears to have genuine distress and concern regarding the behaviours she has observed in [the child]. However, her apparent focus on [the child’s] behaviour, consequent belief that [the child] has been abused and seemingly absolute believe that [the child] has been abused by [the father] might indicate some distortions in her thinking. On the one hand, [the mother] might be seen to display sensitive monitoring of [the child] and appropriate protective behaviour. On the other hand, [the mother] might be seen to make distorted interpretations of [the child’s] behaviour and act in an overly anxious and damaging manner in the guise of being protective.” As to the father Ms G opined “[The father] appears to have a less balanced way of thinking about his parenting. He seems to lack some of the awareness that an attuned parent might have about their child and about their own caregiving processes, as he describes only positive aspects of parenting and does not seem to understand [the child’s] perspective of the parenting arrangements. It is noted that, at the time of these interviews, [the father] has seen [the child] once a week for the previous four weeks but not for a year prior to that. [The father] displayed a calm and warm demeanour when interacting with [the child] and appeared well able to engage her in activities which she enjoyed. [The father] seems to demonstrate positive parenting skills in respect to [Mr K Kier] and Mr [T Kier] and his concern over their well-being and his focus on their education and work.”
271.I accept and adopt the opinions and reservations expressed by Ms G.
(3)(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;
272.The child is an anxious girl. By the time of judgment, she will be 10 years of age. She is the product of the one extended family and presumably what culture and traditions exist will be available on any proposal. There is consistent reference in the evidence before the Court to the child showing signs of anxiety at times. The material from the contact centre refers to her pressured patterns of speech and agitated presentation. Albeit that the recent report from her school is pleasing, there has also been reference to her being anxious at school from time to time. Although mainly the mother, the parents have referred to her anxiety about sleeping and her apparent concern about the feelings or reaction from her parents about particular issues. The letters she has written refer to a desire for a particular thought or concern to be removed from her head.
273.The child’s school principal told Ms G that the child is capable, competent and well-adjusted at school. She said that the child does not present as being emotional or anxious at school. She was aware of the child’s family situation but did not report any differences in the child’s school presentation between periods of time when she was or was not seeing the father.
(3)(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
274.This does not apply.
(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
275.The child has been loved, fed and clothed but the parents have not been able to establish a regime of cooperative parenting to her benefit. They have not been able to protect the child from their conflict. They have not permitted the child to maximise the benefits of her relationships with her parents and extended family members. The child has found herself having to fight and argue so as to maintain her relationships with her siblings. It appears that even though her grandmothers are sisters, she will only be allowed a relationship with one of them at a time.
276.Taking all of the material together, some criticism is available in respect of the father’s insensitivity and lack of insight into the needs of his daughter and his persistent exposure of the child to his extreme antipathy towards the mother. Similarly, the mother has made and acted on assessments about the dangers posed to the child from her father that are inconsistent with virtually all of the official or independent assessments about the child. Indeed, in my view, they go beyond any balanced or objection reflection on the presenting facts.
277.The parents have worked themselves up into making bizarre allegations. I have referred to the father’s belief about the maternal grandmother poisoning several members of her family. The mother apparently thought that the father was seeking to pair off the child with an older boy by applying make-up to her.
(3)(j) any family violence involving the child or a member of the child’s family;
278.I have referred to the evidence about family violence.
(3)(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;
279.I have referred to the family violence orders made for the protection of the mother against the father in 2007 and 2009. There have been no orders since then.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
280.This criterion highlights a very important issue in the case.
281.It was put to the Family Consultant that her recommendations largely reflect the orders Federal Magistrate Sexton had previously made and that assuming there is no unacceptable risk found, the child will be placed in the same situation she has been in for the last three years. The Family Consultant responded to the effect that the previous orders were only implemented for one year and then were no longer followed.
282.She agreed that if the child remains living with the mother and spends time with the father, the parents are likely to go down the same litigious path. She said the only way to stop this would be to place the child with one parent only, most likely the mother. She said that the child identifies as wanting to keep a relationship with her father and that to exclude him would place the child in a position where she is solely dependent on a parent who has a significant health condition.
283.The mother’s proposal would reduce the risk of further proceedings, provided she remains well. The father would have virtually no decision-making, involvement or communication with the child and therefore no rights to enforce or agitate in further proceedings. However, if the mother does not remain well, there is the potential for further proceedings, even in that event. Neither the maternal grandmother nor M’s father are parties to these proceedings. If they did wish to undertake a parenting role then that would require the future intervention of a Court.
284.The father’s proposal suffers from the same complaint that was levelled at Ms G’s recommendation. The child would need to travel between the two households and the potential for further litigation would be undiminished.
285.I share the misgivings expressed about the possible scenarios. Nevertheless, a decision is required and in my view the better course is to seek to maintain some relationship between the father and the child. The parents have experienced persistent problems in managing even day-only time between the father and the child. In my view they are incapable of implementing an overnight regime and for that reason, such a regime would be unworkable.
(3)(m) any other fact or circumstance that the court thinks is relevant.
286.The Family Consultant recommended that the child continue counselling. She said that Ms F would be a suitable counsellor and it was advisable for Ms F to have contact with both parents in relation to the child.
Parental Responsibility
287.Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
288.If no order is made in respect of parental responsibility then the position as to the parents of a child is as follows:
SECT 61C
Each parent has parental responsibility (subject to court orders)
(1) Each of the parents of a child who is not 18 has parental responsibility for the child.
Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.
Note 2: This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.
Note 3: Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.
(2) Subsection (1) has effect despite any changes in the nature of the relationships of the child‘s parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.
(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
Note: Section 111CS may affect the attribution of parental responsibility for a child.
289.An order for shared parental responsibility has the following effect:
SECT 65DAC
Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
290.Presumably that must also apply to equal shared parental responsibility.
Discussion
291.In the context of this case, s 61DA requires that I apply a presumption that it is in the child’s best interests for her parents to have equal shared parental responsibility for her unless there are reasonable grounds to believe that the father or the mother have abused her or engaged in family violence. The father has engaged in family violence and therefore the presumption does not apply.
292.Where the presumption does not apply, s 65D(1) requires the Court to make such order with respect to parental responsibility, and/or time to be spent with each of the parents as it “thinks proper”. What is proper is what is in the best interest of the child - determined by reference to s 60CC of the Act.
293.Ms G did not recommend any change to the mother’s sole parental responsibility.
294.It is logical that the parent with whom the child mostly lives should have parental responsibility.
295.The parents’ relationship is dreadful and their communication is blaming, combative and poor.
Conclusion
296.The presumption that the parents having equal shared parental responsibility would be in best interests, does not apply. The proper order is one that places parental responsibility with the mother. I will make an order in similar terms to those proposed on behalf of the ICL - requiring the passage of relevant information.
Living Arrangements
297.In that the Court will not make an order that the parents have equal shared parental responsibility, it is not necessary to consider any particular pattern of living arrangement.
298.The abiding concern in this case is that although the child is only 10 years of age, her parents’ dispute about her has spanned more than seven years and shows no sign of abating. In the 2007 and 2014 parenting proceedings, the father sought that the child live mainly with him. However, in 2011 he sought that the child live mainly with the mother and spend alternate weekends with him. In 2007 the mother sought that the parents have equal shared parental responsibility and that the child live with her but have overnight, unsupervised time with the father. In 2014 she seeks sole parental responsibility and that the child spend no time with the father.
299.The parents’ proposals are either that the father be excluded from the child’s life or that she be largely removed from her primary caregiver. In my view, those represent draconian options and neither would be in the child’s best interests.
300.The child has inconsistently spent day time with the father on weekends since the orders of 14 October 2011. She spent time with the father on Saturdays from the orders of October 2011 until February 2013 when her time with the father ceased. Such time recommenced on 22 February 2014. This time ceased when the contact centre suspended the father’s time with the child on 12 July 2014. Supervised contact commenced on 2 August 2014 and was suspended on 22 August 2014.
301.Time between the child and the father has been irregular despite court orders. Past orders have specified periods of time between the child and the father on Saturdays and have not succeeded.
302.The orders proposed by the ICL provide for day time contact to occur unsupervised, for eight hours on alternate Saturdays. This is an increase of two hours from the orders made by Federal Magistrate Sexton in October 2011 and an increase of four hours from the latest interim orders made on 18 December 2013. Z Contact Centre suspended the father’s time with the child on 22 August 2014 with the contact worker reporting that “[The child] was presenting as anxious, and that she had said she felt unsafe with her father, I said I thought [the child] was trying to keep both parents happy. I said I had advised the mother to pursue further counselling for [the child].”[28]
[28]See page 2 of 4 of Z Contact Centre progress notes for September 2014 as contained in Exhibit 13.
303.It is clear from the evidence that the child can be a highly anxious child and that, for whatever reason, her level of anxiety can be heightened around visits with the father. The orders of the ICL provide for a significant increase in time spent with the father. I cannot be confident that moving the child’s time with the father to an unsupervised basis and increasing the time will be in the best interests of the child.
304.It is important to attempt to craft orders that will not lead to further litigation. I cannot be confident that the implementation of eight hour contact sessions between the child and the father will not lead to further litigation. I am also concerned about making orders that could well place the child in the same situation that she has been in since the orders of 2011.
305.In an attempt to put in place orders that facilitate positive and ongoing time between the child and the father on a sustainable footing, I will order that time between them initially be limited to two hours a fortnight until the child reaches the age of 12. This will provide a period of just under two years where time between the child and the father is less than it has been previously, with the hope that this arrangement will promote consistent and ongoing time between the child and the father and develop their relationship to a point where the child feels comfortable and safe in the father’s care.
306.I will order that upon the child reaching 12 years of age such time will increase to eight hours each alternate Saturday. It is hoped that by the time the child turns 12 she and the father will have a better developed relationship. Further, the child will have matured and will likely have developed healthy methods for self-protection and coping in stressful situations.
Ancillary orders
307.The father seeks an order requiring the parents to provide the child with her own bedroom. The mother has raised her concerns about the father’s practice of comforting the child while she falls asleep. The issues is unlikely to arise under the orders I propose but perhaps sadly, given the suspicions harboured by the parents, it would be best for the father to avoid that practice.
308.The question of special days such as birthdays and Christmas is probably of greater importance to the parents than the child. Whether those days are shared or alternated does not involve matters of principle. I will adopt the orders proposed by the ICL.
309.The matter of extracurricular activities may be resolved by the other orders, if the child is to live exclusively or mainly with the mother then she will make all or most of those decisions. Activities falling within any time spent with the father should be left to him. The father seeks orders about payment for those activities. They will either be a matter for the parent in whose care the child is at the time or will be agreed between the parents. Any controversy would be a matter of child support and is not within the scope of these proceedings.
310.The question of the child’s travel with the father will probably be resolved by the decision about the time with the father, if any.
311.The father seeks an order that the child not be left alone in the care of the maternal grandmother (Ms L Ferrer). There is evidence that the grandmothers have taken sides in the conflict in these proceedings but the evidence does not support a need for such an order. In any event, given the mother’s physical restrictions, such an order is not practicable.
312.The father proposes that the parents be restrained from leaving the child alone in the care of Mr H, M, Mr T Kier or Mr K Kier. As to Mr H, I have indicated that the mother shares the father’s concerns. For the avoidance of doubt I will restrain the mother in this regard. The question of time with Mr T Kier and Mr K Kier is a matter purely within the control of the father. He can put those arrangements in place if he chooses. In my view the evidence would not support such an order. Indeed, the child has expressly expressed the wish to spend time with her half-brothers and the mother supports that wish. As to M in my view such an order is not warranted. In any event it is probably impractical.
313.The ancillary orders proposed by the ICL at paragraphs 26 to 31 of the proposed orders are sensible and will be made.
314.Leave will be granted to the parties to bring the matter back before me within 28 days, or such further time on which the parties may agree, in relation to the wording of the orders.
I certify that the preceding three hundred and fourteen (314) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 4 February 2015.
Associate:
Date: 4 February 2015
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Procedural Fairness
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Remedies
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