Foy & Spall
[2025] FedCFamC1F 199
•27 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Foy & Spall [2025] FedCFamC1F 199
File number: SYC 7242 of 2019 Judgment of: CHRISTIE J Date of judgment: 27 March 2025 Catchwords: FAMILY LAW - CHILDREN - Sole parental responsibility – Where both parents seek that their child live with them - Prior allegations of sexual abuse – Where prior sexual abuse allegations against the father have been investigated by child protection authorities and have not been substantiated - Where the child and the mother appear to genuinely believe that prior sexual abuse by the father has taken place - No unacceptable risk of sexual harm found in relation to the father.
FAMILY LAW - CHILDREN- Sole parental responsibility - Where both parents seek that their child live with them - Where family violence in some form has been committed by each parent - Where both parents have since undertaken parenting courses and disavowed the use of corporal punishment - Where independent expert identifies that there are multifarious risks to the child living with either parent - Found that the child is ultimately safe to live with the father - Where father must immediately commence seeing a psychologist to support his parenting.
FAMILY LAW - CHILDREN - Parenting - Where there is extensive evidence of the mother’s dysregulated behaviour - Where the child needs to be protected from this dysregulation - Where being further exposed to the mother's dysregulation would severely limit the ability of the father to reconnect with the child - Order made in support of the independent expert's recommendation that the mother is restrained from approaching or contacting the child for a period of three months.
FAMILY LAW - CHILDREN – Overseas travel - Father seeking permission to obtain a passport without the mother's consent to travel with the child – Where the mother opposes this due to a fear that the father will not return the child to Australia – Where the risk of the father not returning with the child is not established - Order granted to the father.
FAMILY LAW - PRACTICE AND PROCEDURE – leave to reopen evidence – Where the mother has made an oral application seeking to reopen the evidence – Where this application to reopen is opposed by the father and the ICL – Where the information the mother seeks to provided is largely before the court already - Where the situation of the child is one of urgency and does not justify reopening evidence.
Legislation: Australian Passports Act 2005 (Cth)
Family Law Act 1975 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: M v M (1988) 166 CLR 69
Stephens and Stephens and Anor (Enforcement) (2009) FLC 93-425
Division: Division 1 First Instance Number of paragraphs: 166 Date of last submissions: 26 February 2025 Date of hearing: 3 – 7 & 14 February 2025 Place: Sydney Counsel for the Applicant: Ms Windsor Solicitor for the Applicant: Pagano Burlovich Lawyers Counsel for the Respondent: Mr Fantin Solicitor for the Respondent: Mobile Solicitors Counsel for the Independent Children's Lawyer: Ms Shea Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 7242 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SPALL
Applicant
AND: MR FOY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
27 MARCH 2025
Amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 31 March 2025
THE COURT ORDERS THAT:
1.The father have sole parental responsibility in respect of all major long-term issues, and in the exercise of this responsibility the father shall have sole decision-making authority in relation to matters associated with the care, welfare and development for X, born 2013.
2.X live with the father.
3.For a period of 3 months from the date of these orders, X shall spend no time and have no communication with the mother.
4.The father shall immediately engage a therapist recommended by the Independent Children’s Lawyer in consultation with the single expert, Ms B, for the purposes of assisting X and both parents to adjust to the parenting arrangements set out in these orders.
5.For the purposes of order 4:
(a)The father is to make the earliest available appointment in order to commence therapeutic engagement with the therapist;
(b)The father will ensure that X attends all appointments with the therapist as requested by the therapist for as long as the therapist deems necessary;
(c)The father will provide the mother’s contact details to the therapist;
(d)The father and mother will attend all appointments with the therapist as requested by the therapist for as long as the therapist deems necessary;
(e)The father has leave to provide the therapist with:
(i)A copy of Ms B’s reports dated 4 October 2023 and 29 May 2024;
(ii)A sealed copy of these orders, and
(iii)A copy of Justice Christie’s reasons for judgment.
(f)The father will bear the cost of the therapy.
6.For a period of 6 months following the expiration of order 3, and conditional upon compliance with order 3, X will spend time and communicate with the mother as follows:
(a)During any joint therapy sessions with X in accordance with orders 4 and 5, and
(b)Such additional time and/or communication as agreed in writing between the mother and the father, provided that:
(i)Any such time or communication is initiated by the father taking into account any recommendations made by the therapist;
(ii)Any face-to-face time is supervised by a professional supervision agency nominated by the father with the costs of supervision to be shared equally between the parties, and
(iii)Any video or telephone communication is monitored by the father who is at liberty to terminate such communication in the event he determines the communication is not in X’s best interests.
7.Thereafter, for a period of 12 months following the expiration of order 6, and subject to the mother’s compliance with orders 5(d) and 6, X will spend time and communicate with the mother as follows:
(a)Face-to-face time once per week, supervised by a professional supervision agency nominated by the father, for a period of 4 hours on a Saturday or Sunday, subject to the availability of the contact service, with the costs of supervision to be shared equally between the parties;
(b)By video call or telephone, once per week (being a Wednesday between the hours of 6pm and 7pm unless otherwise agreed in writing between the parties), provided that such communication is monitored by the father who is at liberty to terminate such communication in the event he determines the communication is not in X’s best interests, and
(c)Such other time or communication agreed between the parties in writing.
8.Thereafter, for a period of 6 months following the expiration of order 7, and subject to the mother’s compliance with orders 5(d) and 7(a), X will spend time and communicate with the mother as follows:
(a)Face-to-face time once per week for a period of 6 hours on a Sunday with exact times to be agreed between the parties in writing;
(b)By video call or telephone, once per week (being a Wednesday between the hours of 6pm and 7pm unless otherwise agreed in writing between the parties), and
(c)Such other time or communication agreed between the parties in writing.
9.Thereafter, following the expiration of order 8, and subject to the mother’s compliance with orders 5(d) and 8(a), X will spend time and communicate with the mother as follows:
(a)On each alternate week from 10am on Saturday until 4pm on Sunday;
(b)By video call or telephone, once per week (being a Wednesday between the hours of 6pm and 7pm unless otherwise agreed in writing between the parties), and
(c)Such other time or communication agreed in writing between the parties.
10.In addition to order 4, the father is to immediately engage a psychologist for the purposes of individual therapy in order to support and assist him in relation to his parenting of X.
11.For the purposes of order 10:
(a)The father is to make the earliest available appointment in order to commence therapeutic engagement with the psychologist;
(b)The father will ensure that X attends all appointments with the psychologist as requested by the psychologist for as long as the therapist deems necessary;
(c)The father will attend all appointments with the psychologist as requested by the psychologist for as long as the psychologist deems necessary;
(d)The father has leave to provide the psychologist with:
(i)A copy of Ms B’s reports dated 4 October 2023 and 29 May 2024;
(ii)A sealed copy of these orders, and
(iii)A copy of Justice Christie’s reasons for judgment.
(e)The father will bear the cost of the individual therapy.
12.Pursuant to section 68B of the Family Law Act 1975, the Court grants the following injunctions for the personal protection of the child, X, born 2013, the mother, Ms Spall, is hereby restrained from:
(a)Approaching, contacting, or attempting to approach or contact the child, X, born 2013, except in accordance with these orders;
(b)Attending at the home of the child, X, born 2013;
(c)Attending at any school at which the child, X, born 2013, is enrolled.
13.For the purposes of section 68C(1) of the Family Law Act 1975, the injunctions in Order 12 are injunctions granted under section 68B for the personal protection of the child, X, born 2013, and if a police officer believes, on reasonable grounds, that the mother has breached any of the injunctions by:
(i)causing, or threatening to cause, bodily harm to child, or
(ii)harassing, molesting or stalking the child,
then the police officer may arrest the mother without warrant.
14.For the purposes of section 11(1)(b)(i) of the Australian Passports Act 2005 (Cth), the child, X, born 2013, is permitted to have an Australian Passport.
15.The father has the sole authority to apply for a Passport (Australian and Country J) for the child, X, born 2013, and the mother’s consent to the child having a Passport (Australian and Country J) is not required.
16.For the purpose of s65Y of the Family Law Act 1975 (Cth), the father is permitted to take the child, X, born 2013, from the Commonwealth of Australia for a maximum of 4 weeks at a time and the mother’s consent to the child’s overseas travel is not required.
17.Pursuant to section 65L of the Family Law Act 1975 (Cth), a family consultant of the Federal Circuit and Family Court of Australia (Division 1) Sydney Registry is engaged to:
(a)supervise compliance with any parenting order, as far as practicable;
(b)provide assistance to any party to the parenting order as is reasonably requested by that party in relation to compliance with, and the carrying out of, the parenting order.
18.Pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a 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 those particulars are included in these Orders.
19.Unless a waiver is sought and obtained, within 28 days of the date of these Orders, the parties each pay the sum of ten thousand, one hundred and twenty-six dollars and twenty cents ($10,126.20) to Legal Aid NSW representing the costs of the Independent Children’s Lawyer in these proceedings.
20.Until the conclusion of the 2026 school year, the father be restrained from changing the child's school, noting that he currently attends C School and is currently in year 5.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Foy & Spall has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
These parenting proceedings concern eleven year old X. Both parents seek an order from the court on a final basis which would see X live with him or her. X’s interests are represented in the proceedings by an Independent Children’s Lawyer (“ICL”). The father’s proposed final orders ultimately mirrored, in large part, those propounded by the ICL. The mother’s proposal is for long term supervised time between X and the father. The parents also each seek an order to be permitted to make long term decisions without consultation with one another.
Following a period of separation under the one roof the parties entered into consent orders on 21 November 2019 which provided:
17. That the Mother and Father have equal shared parental responsibility for the chid, namely [X] born […] 2013 ("the child').
20. That unless otherwise agreed between the parties in writing, the child will live with the Mother and Father during the school terms as follows:
(a) Week 1:
i) WITH THE MOTHER from Sunday 6.00pm until the commencement of school (or 9.00am) on Wednesday morning;
(ii) WITH THE FATHER from the conclusion of school (or 3.00pm) on Wednesday afternoon until 9.00am on Saturday.
(b) Week 2:
(i) WITH THE MOTHER from 9.00am on Saturday until the commencement of school (or 9.00am) on Wednesday;
(ii) WITH THE FATHER from the conclusion of school (or 3.00pm) on Wednesday until 6.00pm on Sunday.
21. That in the event the child does not cope with the living arrangements set out at Order 20 above, as determined jointly by the parties, then such arrangement shall be suspended, and the parties shall facilitate a week-about arrangement as follows:
(a) The child shall live with each party in each fortnight as follows:
(i) WITH THE MOTHER from the conclusion of school (or 3.00pm) on Monday in the first week until the commencement of school (or 9.00am) on Monday in the second week:
(ii) WITH THE FATHER from the conclusion of school (or 3.00pm) on Monday in the second week until the commencement of school (or 9.00am) on Monday in the following week.
There was also provision for equal holidays and special occasions.
The consent orders were in place for in excess of two years before the arrangement broke down in circumstances which will be considered below.
PRELIMINARY ISSUE
On the final day of the hearing the applicant mother made an oral application to reopen the evidence prior to final submissions which were scheduled for that day. The application was originally supported by the ICL and opposed by the father.
At the time of the proposed re-opening it was suggested that Ms D, a social worker at Region E Health Service Prevention and Response to Violence Abuse and Neglect (PARVAN) wished to give evidence having been alerted to the content of the Independent Children’s Lawyers final minute of order.
I made directions for the filing of an affidavit and otherwise heard final submissions.
The mother sought (and the other parties consented to) an extension of time for the filing of the affidavit.
I have considered the written submissions on reopening. The ICL, having considered Ms D’s affidavit did not support the application to reopen.
The decision in Stephens and Stephens and Anor (Enforcement) (2009) FLC 93-425 provides useful guidance about accepted principles which apply on the making of an application for leave to reopen and adduce further evidence at [273]:
We observe that in Australian Securities and Investments Commission v Rich (2006) 235 ALR 587 Austin J set out at 593 what he described as a “useful statement of relevant discretionary factors” to the exercise of discretion to permit a beginning party in a civil penalty proceeding to adduce further evidence after it had closed its case. The factors included:
•the nature of the proceeding;
•whether the occasion for calling further evidence ought reasonably to have been foreseen;
•the importance of the issue on which the further evidence is sought to be adduced;
•the degree of relevance and probative value of the further evidence;
•the prejudice to the other party;
•the public interest in the timely conclusion of litigation;
•the explanation offered for not having called the evidence.
It is also relevant to consider what the High Court recently said in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.
The nature of the proceeding
These are contested final parenting proceedings which are to be determined having regard to the paramountcy principle.
Whether the occasion for calling further evidence ought reasonably to have been foreseen
This issue is significant to the disposition of the application. The applicant commenced consulting Ms D in January 2024, with X commencing consultation with Ms D in March 2024. The applicant and the child consulted with Ms D until November 2024 and then following a hiatus returned to Ms D. The applicant has been legally represented throughout this time. A subpoena was issued for production of Ms D’s notes.
The father amended his application to seek orders that X live with him on 8 November 2024. The single expert report was released to the parties’ solicitors by order made 6 June 2024. That report contained a recommendation (albeit guarded) that X’s best interests may be promoted by an order that saw him live with the father.
During the ICL’s cross-examination of the mother at trial the mother said that Ms D was worried about the contents of Ms B’s report, in particular the recommendations concerning change of residence and that Ms D was of the opinion that the mother should offer supervised time.
Given the above uncontroversial facts, the occasion for calling this evidence ought to have been reasonably foreseen.
The importance of the issue on which the further evidence is sought to be adduced
There is no question that Ms D has relevant information as a treater of both mother and child but, as is plain from a comparison of the affidavit and exhibit 27 (documents produced by Region E Health Service) the Court has been provided with the information.
Degree of relevance and probative value of the further evidence
The evidence is both relevant and probative, but as discussed above already before the Court.
The prejudice to the other party
Because the evidence is on all fours? with that which is already before the Court it cannot be said that the evidence causes prejudice to the husband because he is unable to meet it. The prejudice occasioned by the introduction of further evidence is that it would be difficult to prevent an application for cross-examination with attendant delay.
The public interest in the timely conclusion of litigation
This matter has been before the Court (albeit in two tranches) for over five years. The litigation should proceed to finality, unless the interests of justice dictate otherwise it is an expectation of the legislation that proceedings be conducted as efficiently as possible. It follows that adjournments occasioned by reopening should only be granted when required by the interests of justice.
The explanation offered for not having called the evidence.
The submissions filed on behalf of the mother assert that delay was occasioned by the fact that Ms D’ notes were not available until February 2025. That does not explain the mother’s decision not to call her as witness. This is underlined by the submission contained in the mother’s written submissions to the effect that Ms D has been the child’s treating therapist for in excess of 12 months.
At the hearing I identified that the situation for X had some urgency having regard to the circumstances in which he found himself. This factor alone speaks against an adjournment of the proceedings to allow further evidence the content of which is already before the Court.
I decline the application to reopen.
CONSIDERATION
I turn then to consider the evidence which was before the Court at hearing.
The Court has had the benefit of a single expert report by Ms B (“the single expert”), which, together with the parties’ affidavits, identify the issues in the case to be:
(a)Has the father engaged in family violence towards the mother and/or X and if so are there safety concerns for X?
(b)Has the mother required X to make false allegations of abuse and if so what is the consequence of that conduct for X (and care arrangements)?
(c)Has the mother engaged in family violence towards X and if so are there safety concerns for X?
(d)Has the father engaged in sexual abuse of X? Or do the facts and circumstances ground a conclusion that X would be at an unacceptable risk of harm if he were to spend time with the father?
There is a logical inconsistency throughout the mother’s evidence – on the one hand she is apparently concerned with the father’s absences (for example when he visits his elderly parents in Country J) but at the same time she sought orders right up until the beginning of the trial that X spend no time with the father. During the hearing she agreed that she had sought orders for the father to spend supervised time with X for no other reason than she hoped that by volunteering a preparedness to facilitate supervised time she might inoculate herself against the change of residence foreshadowed by the single expert.
X’s views
X is 11 years old.
X was interviewed by the single expert Ms B in September 2023. The report writer records her opinion that he offered his views in a “careful and considered manner”, except when he talked about feeling caught in the middle of his parents’ conflict.
X told the single expert at interview for the first report (Child Impact Report) that he would like to spend time with his father “but that he also has LOTS of worries that his parents will end up arguing again.”
The report writer’s interview with the child occurred after X had spent time with the father in an observation session. He told the single expert on inquiry:
seeing Dad was kind of good but I had to wake up at 4.30am! He gave my stuff back. [The father had brought toys] It turned out better than I thought it would? I wasn’t expecting him to be soft. I felt nervous and shy and worried about what he might say.
When X met with Ms G in September 2023 her records say “[X] shared if he had the choice to live somewhere else he would.”
At that time X was living with his mother. In the context of the evidence as a whole X’s comment is significant. I do not interpret the comment to indicate that X does not love his mother but it appears to be indicative of the difficulties that X was experiencing in his mother’s household including providing care to this mother when she was unwell, being exposed to his mother’s emotional vulnerability, being in conflict with his mother – including each being physical toward one another.
By February 2024, when X met with the school counsellor he was reporting:
not seeing his father much…He was fine with that and not missing him at all…if he could have a wish for life it would be that he could live with mum only, spend time with dad who wouldn’t hurt him like he used to. He didn’t want to stay with dad because he didn’t think dad valued education as much as he did, so there would be no coaching.
The school counselling records indicate that from X’s perspective his mother had changed her behaviour towards him. Specifically, she was less likely to hit him. This is significant. Both parents were found by the Department of Communities and Justice (“DCJ”) to have used physical punishment. X has experienced being parented by his mother both before she undertook to abandon this form of punishment and after. X has not had the opportunity to be parented by the father after he, similarly, undertook not to use physical punishment. It is plain that X still associates the father with the physical punishment he experienced even though the father’s evidence, and the parental education he has undertaken in recent times, have seen him disavow this approach.
X told the single expert at the first interview for the more recent report that he did not want to live with his father or visit him. The reasons he provided are telling:
… because it’s too complicated. Like when I chose dates to see Dad and it was planned but then Mum said Dad wanted Fridays and that’s when I have my tutoring class. And I’m not getting great scores and we need to study for the […] test. It’s not right to cancel things for someone’s education! I’m confused because I thought that my Dad took education seriously. So now I think that my Dad is trying to annoy my Mum and me.
He continued by telling the report writer that the conflict between his parents was no longer his greatest worry. Now he said “[i]t’s the abuse stuff that’s the worry.”
The report writer observed that:
…anxiety, fear and ambivalence … now characterises [X’s] interactions with his father and in all likelihood, any thoughts he has about a future relationship. He cannot conceive of wanting something that his mother is now so trenchantly opposed to him having.
This observation accurately reflects the interactions with the single expert, authority figures such as DCJ, Ms D at PARVAN, police and his counsellors.
In October 2024 X told his school counsellor that:
his biggest issue is the worry about the custody court case next year. He doesn't wish to live with or even see his father at all, reason being he doesn't want to go back to being hit and having 'weird things' done to him.
The trajectory of the development of his views and his age are both factors which cause me to conclude that no weight can be placed on his expressed views in my determination of what orders will be in his best interests, although I acknowledge that making orders contrary to his expressed views will be distressing and difficult for him to understand, particularly in the short term.
Developmental, psychological, emotional and cultural needs of the child
X has been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”). He is in year five at school. He is performing well academically.
X has presented in the mother’s household with behaviours which are challenging for her (and objectively present as challenging). The mother described X urinating on the floor, sleeping under her bed, eating paper, talking like a baby, riding in circles, biting a piece out of a couch, talking to himself, scratching himself. The mother described to Ms D an escalation in sexualised behaviours by X in the home to in January 2025 (exhibit 38).
In an email from the mother to X’s paediatrician Dr F and Ms D dated 23 January 2025 she set out the following observations about X:
He still continues to do the following behaviours and say the following things a tick:
1. repeatedly say or scream or state in weird voices the words "[…] mommy sex ma" or "[…] mommy flexing" or "[…] mommy 69" or just "69" or " sexma"
2. No1 is usually said as he either gyrates his hips in lewd gestures mimicking the sex act or
3. when he is hugging me tightly and rubbing his genital area against me either straight after shower when naked or when he is fully clothed as well.
4. As he is co-sleeping he has tried to sniff my pelvic area or touch it when going to sleep.
5. he frequently tires [sic] to squeeze my breasts or to put his face on them and also slaps my bottom
6. he is also always trying to physically over power me and hump my legs or bottom as standing wrestle or a to push me to the bed and wrestle. As he is now as tall as I am and stronger than I it is getting hard to push him away to try to take myself away from him. Although on the devices at home I have not come across any evidence of him having watched any pornographic material I wonder whether he has had exposure to the same as he makes the 69 comment accompanied with lewd gestures.
7. he seems to really either not understand or not care for the many scripted comments I make about respecting mine and his body boundaries, consent and overall inappropriate speech.
8. masturbating in the living room, dinning room and in public despite grand father , grand mother and I asking him to not to do so.
I would genuinely appreciate an intervention because one of my greatest fears is that I am giving to the world a "very well behaved in public" - pervert like so many of the men I read about in various sexual assault cases all over the world. These men are all "well behaved individuals" holding trusted jobs like Police officers, Firemen, Doctors etc but behind closed doors they do horrific acts to their family members. This is the biggest fear that I have, because clearly I am not reaching [X's] capacity to understand over these behaviours, over the past 3 to 4 years in an ever-escalating situation of sexualised behaviour at home.
In reading [Ms D]- I hope you are able to read the attached letter from the GP and I look forward to bringing [X] to see you tomorrow([…] 2025) in the morning and I genuinely need your help to stop these behaviours because it is unbearable and makes me feel dirty and revolting.
(as per original)
The single expert expressed the view that X is using maladaptive behaviours in his mother’s household to either please or provoke her. It is significant that by the mother’s account his behaviour at school is different.
The mother recorded that in August 2023 X had a tantrum and bit her when she checked his homework and accused him of lying to her (inferentially about schoolwork) (exhibit 20).
In late 2023 the mother called the police because X had pinned her to the bed, had bitten her and torn her clothing.
At present the mother says that X will undertake sport on Monday or Tuesday, extracurricular activities on Wednesdays, sport on Fridays and other activities and “new quotient” English/maths class on the weekends. The father indicated a concern that X may be overcommitted in the mother’s household. The mother indicated that he enjoys the activities and that they help him focus given his diagnosis.
In session with Ms D in June 2024 X spoke about ‘annoying’ his mum sometimes. That his mum will tell him he is being annoying”. X explained that his mother is very busy and he wants her to pause to be with him.
Later in the same session Ms D recorded the following:
[X] spoke about self harm, that he will hurt himself to not hurt others. such as hitting or scratching himself. [X] stated that it happens when he feels angry. He was unsure what the angry was about, "maybe what dad did to me." [X] spoke about feeling sometimes "unimportant", "technically a useless person" "unvaluable" [X] stated that he sometimes has thoughts of "I want to kill myself, so I don't hurt others." CL acknowledged the importance of not hurting others for [X]. [X] stated that he only thinks about killing himself when he feels very angry. [X] showed CL a small scatch on his forehead and shay that he had scratched his head.
X has experienced first hand the impact of being embroiled in the dispute between his parents. He has been acutely aware of the existence of legal proceedings. X’s school counsellor recorded:
[X] voluntarily recounted a verbal timeline of events (providing specific dates and summaries of past events) that he discusses at each legal interview about his father. [X] reported to find comfort in recounting the timeline and noted that this helped to provide a ‘release’ by bringing his thoughts out of his mind.
X needs an environment where he is the focus of calm, stable parental attention which promotes a feeling of psychological safety.
Safety
There are three issues which are relevant to the assessment of what orders will best promote X’s safety:
(a)Has X been subjected to sexual abuse by the father? In the alternative is there an unacceptable risk that time between the father and X will expose X to harm?
(b)It being an agreed fact that both parents have hit X, what is the nature and extent of the parties’ past conduct? What is the significance of the findings about past conduct for X’s safety?
(c)To what extent has the conduct of either party (including family violence) exposed X to psychological harm in the past and with what consequence for the parenting orders to be made in this matter?
Sexual abuse allegations
In December 2022 X commenced counselling with Ms G (“Ms G”), arranged by the mother.
In May 2023 X met with Ms G. It is important to record Ms G’s note of the session as it regards the disclosure.
-showing me a coded document of what to say at court
- “Dad did bad injuries, for eg. Hit me on the side and it is still there,” “He has completely insulted me for eg. He said that I was an idiot because the school presentation was on the 1st week not the 2nd week”, “Thirdly he wants to put pressure on me”, he would hit me because I didn’t want to do the presentation now”.
•[X] felt upset sharing as he still loves his father, its depressing because he can’t let him hit him.
•[X] would like to see father supervised and get his belongings back.
•Discussed option of getting police to escort to the house to collect his things – to discuss w mother
•Explored feelings around going to court via bear cards –
•Curious – what will happen – outcome
•Worried – scary to go to court
•Shocked – that a 9yo has to talk in court – I don’t want to go – never go again
•Sad – I don’t want to go
•“a good outcome would be that they find [X] not guilty” and if he was guilty, bad outcome he would need to live with his father” – “father has no boundaries”
•Father would Father clean [X] on his bottom and private parts/ his penis – he didn’t want this up to 8yo.
•Mother knows this because [X] told her
•Father has also touched his penis for fun before sleep or in public […], [X] feels embarrassed and sad by this.
[X] shared the following
•Father would touch [X] when sleeping 6yo. 8yo daily.
•Father also would watch [X] “do his business” eg. poo and wee – mother witnessed
•[X] thought this normal
•Mother would also watch him poo and pee until 7yo. But stopped this when she realised this wasn’t right.
•Father would touch [X] penis and smell his penis when he was in bed
•I explained that I am a mandatory reporter [X] was okay for me to share this with mother & CP.
(as per original)
When the mother was asked in cross-examination when the sexual abuse had occurred she told that court that Ms G had conveyed to her that X remembers things from when he was about four.
The issues which arise from this are:
(a)Does a party contend the court should make a finding that abuse occurred noting the High Court’s entreaty in M v M (1988) 166 CLR 69 at 76:
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw.
(b)In the alternative does any party assert a prospective unacceptable risk?
(c)Has the disclosure occurred:
(i)As the father submits, as part of a course of conduct by the mother to prevent time between the child and the father?
(ii)As the mother submits – because the child has been abused by the father?
(iii)Is there an alternate conclusion available about why X disclosed to Ms G?
The written closing submissions by the father contend [64] that “[t]here was nothing sexualized about these disclosures.” I disagree. To the extent that the notes detail X’s alleged disclosures to Ms G the majority of the comments are capable of interpretation as benign descriptions explained by a parent attending to a child’s hygiene or perhaps as a parent failing to put in place an age appropriate boundary. The exceptions to this are the comments which suggest that the father touched X’s penis “for fun” or smelled his penis, which objectively appear sexualised. I will return to these later.
The mother reacted to her subsequent discussion with Ms G by vomiting and crying on the floor. There is no suggestion her response was contrived. The mother facilitated X meeting with NSW Police Detectives from the Joint Child Protection Response Program (“JCPRP”) on two dates in mid-2023. X did not repeat his disclosures.
During X’s first interview with the JCPRP X told them his father did not touch his bottom outside the bath. During the second interview the police asked specific questions about the prior disclosures and X is recorded to have replied: “No. Why do you ask?”
The mother gave evidence in cross-examination that she had conversations with X between on two dates in mid-2022 which focused on encouraging him to disclose. The mother says Ms G encouraged her to encourage X to disclose. This is inconsistent with Ms G’s notes which say:
I discussed about trauma and the inappropriateness for [X] at this time to be further questioned or coerced into sharing his story with others and the detrimental impact this can have on his mental health.
The mother says that because she understands that children are more likely to disclose to people they trust it stands to reason that X disclosed to Ms G but not to police and DCJ. The mother was not reassured by X’s failure to repeat the disclosure. In cross-examination the mother told the court that Ms G had said to her words to the effect, simply because a child does not disclose does not mean that it did not happen. At this stage the mother had a number of pathways open to her: she could have concluded (given the context) that X’s comments were not sexual in nature but related to hygiene; she could have concluded that it was not plain that anything untoward had occurred or she could have concluded that the father had engaged in sexual abuse. The mother has maintained the narrative that abuse has occurred and this has governed her interactions with the father, with authorities, and with X.
The evidence does not permit the conclusion on the balance of probabilities that X has been sexually abused by the father. In reaching this conclusion I take into account the fact that the majority of the matters which were relied upon by Ms G in making her mandatory report were capable of explanation in terms other than sexual abuse. In fact, according to the Magellan Report it was the mother who told JIRT that the father had smelled the child’s penis at about 5 years of age to make sure an infection was healing. In addition, X not only failed to repeat the alleged disclosures on open ended questioning, he also disavowed them on direct, and even leading, questioning.
I must turn then to consider whether or not there remains an unacceptable risk of harm to X from living with or spending unsupervised time with the father in the future. The evaluation of future risk is informed by my findings about what has occurred in the past. In that regard I must have regard to the underlying facts which the mother relied upon to ground her submission that sexual abuse had occurred.
It is not in contest that the father used physical discipline with X. I am not persuaded that his use of physical discipline speaks to a risk of sexual abuse. The mother points to faecal incontinence as indicative of past sexual abuse by the father. The mother says that “[X] was also referred for [a test in early] 2024, to check the muscles of his anus”. There was no medical evidence relied upon in the mother’s case to support abuse having occurred.
The single expert discussed this issue with the mother during the interviews for the second report and raised with her the potential that the faecal incontinence was plausibly related to constipation. The mother’s affidavit is silent on the topic. I am not persuaded that the faecal incontinence is indicative of abuse having occurred.
The mother gave evidence that X had exposed himself to a classmate and a family friend and grabbed a child’s penis at childcare in 2019. Absent any evidence to suggest these incidents are indicative of X himself having been abused I am unable to attach any weight to them in my assessment of risk.
The mother gave evidence that X has rubbed his penis on his grandmother’s arm and on the mother’s leg, rubs his own penis “all the time” and has asked to watch his mother “poo or pee”.
The mother said that when she questioned X about his conduct he said “We pull out our penises and we rub them against each other’s legs. Sometimes dad would pull his penis out of his pants and we laugh”.
Given the focus given by the mother to X’s allegations I do not accept that the only basis upon which X would have made this comment to the mother is because the conduct he describes actually occurred. Other explanations are available – including X seeking to explain his own conduct, and to provide detail to the mother which he had learned would be well received by her. This is supported by the opinion of the single expert who concluded X may have been:
conflating contextual touching with abuse and embellishing and changing his story to add incidents that served to call into question the reliability and veracity of his narrative.
The father asks that I find that the mother has deliberately invented or exaggerated these allegations to gain an advantage in the proceedings. In support of this he points to the chronology which establishes that the mother has historically responded to conflict between them by asserting that she could obtain orders for “sole custody”, that she raised the allegations of physical abuse when their mediation did not resolve the way she hoped and that she raised and pursued the allegations of sexual abuse notwithstanding the findings of DCJ and police.
I am not confident that the mother has maliciously invented allegations to gain an advantage in the Local Court proceedings or proceedings before this Court. On balance I have formed the view that the mother has come to believe that only the explanation she propounds is valid.
Interestingly in early 2022 (in reasonable proximity to the events which resulted in the father being charged with damage to a door) the mother wrote to the father:
You bring a very positive, strong academic perspective with a focus on self-discipline, goal orientation and organisation. I bring a strong emotional, spiritual and mental wellbeing focus that is key to his ([X’s]) emotional wellbeing. Together with cooperation we are able to give to the world a well-rounded man for the future, despite him coming from a divorced household.
Whatever may have been the mother’s view of the father when she wrote the above email it is now plain that she cannot contemplate cooperative parenting.
Having concluded that the evidence does not support a positive finding that abuse occurred and that unsupervised time would not expose X to an unacceptable risk of harm from sexual abuse by the father I must none the less contend with the evidence which supports a finding that X believes he has been abused by his father.
The mother told the single expert that in a school writing assignment in 2024 X wrote “I’ve been sexually abused by my father” which resulted in a referral to the school counsellor.
In a similar vein, during supervised time in March 2024 X said words to the effect: “why am I playing with my abuser?”. The single expert commented that the language was “adult” suggesting that X has embraced an adult narrative rather than reflecting his own experience.
The single expert in her interview with X for the most recent report asked him how the visits with his father had been. She records his answer:
I have to tell you, why do I have to play with my abuser? I thought supervision would be a good choice but I did not know why. Now that I’ve experienced it, I know that it’s not a good choice. I was dumb enough to believe it was going to be a good choice.
(emphasis added)
I accept X believes, on some level, his father has abused him. This will make it very hard for X to tolerate a change of residence to the care of the father. It will only be possible with therapeutic assistance as recommended by the single expert. It must be acknowledged that even with therapeutic assistance it will be difficult. However, on balance the evidence supports the necessity of this approach given X’s current presentation and the longer term impacts of maintaining the narrative of his abuse.
Having considered the whole of the evidence, as evaluated above, I am not persuaded that orders which provide for X to live with or spend unsupervised time with the father would expose X to an unacceptable risk of harm from sexual abuse.
Allegations of physical abuse of X
It is an agreed fact in these proceedings that each of the parents used physical discipline with X. In police material, in evidence in these proceedings, the police use the expression “lawful chastisement” to differentiate between reasonable and proportionate physical discipline and assault.
The mother says that the father’s conduct constitutes an assault.
On 10 June 2022 the mother sent the father an email saying that on 25 May 2022 she had noticed bruises on X’s body. Further, she told the father she had asked X about the bruises and he had indicated that they had occurred when the father hit him with an object
X attended his counsellor (Ms H) in May 2022. The mother says X repeated the allegation. It is not plain from the mother’s evidence why this issue was not raised with the father at this time.
The mother’s Notice of Abuse says:
[In mid] 2022 I noticed two large blue black bruises on [X’s body]. Under persistent questioning [X] finally confided that those marks were the result of a beating by his father [from an object].
The mother’s affidavit does not detail any of her persistent questions.
The mother facilitated time between the child and father after this alleged disclosure.
In mid-2022 the mother spoke to child protection services. A short time later the mother spoke to police. The mother continued to facilitate time and corresponded with the father requesting that he not “hit” X. The mother says X continued to report having been hit by the father.
In mid-2022 the father was charged with two offences. In mid-2023 those charges were withdrawn. The father consented (without admissions) to a final apprehended domestic violence order.
The terms of that ADVO provide:
1. You must not do any of the following to [X] or anyone he has a domestic relationship with:
A) assault or threaten him
B) stalk, harass or intimidate him, and
C) intentionally or recklessly destroy or damage any property or harm an animal that belongs to or is in the possession of [X]
For example:
•You must not do any of these things in person, through another person, or through electronic communication and devices (for example, by phone, text messages, emails, Facebook or other social media, or GPS tracking).
•You must not do or say anything that may make [X] feel frightened, or feel that you may harm him or damage his belongings in any way, including any jointly owned property and pets.
X told his father that his mother had forced him to lie (about being hit with an object). When X met with the single expert for the Child Impact Report she specifically asked him if he had any particular worries about the observation session with the father and he said “yes, because I’ve told lots of lies.”
The charges were withdrawn by the police.
The evidence supports the conclusion that the father used hitting as a form of punishment with X but not that he hit X with an object as alleged.
In early 2023 DCJ received a risk of serious harm report which indicated that X reported having been hit by his mother and that she regularly spoke to him about her “wanting to die”.
It may be that this was based on a report by Ms G since X told her in January 2023 that his mother had hit him with a closed and open hand. He also reported to Ms G his mother would cry – sometimes for up to 40 minutes and that he had seen her hurt herself and that she had told him she “didn’t want to live, that she wants to die, every day”. In March 2023 X was observed by Ms G to comfort the mother in a joint session where she discussed her inability to cope and posited his attending boarding school.
The mother accepts that she was still hitting X in June 2023 but said in cross-examination that it was a “whack here and a whack there”. She was asked in what context this might occur and indicated if he had not cleaned his room or there was food under his bed or if he was not getting ready in the morning or displaying oppositional behaviour.
When interviewed by DCJ in July 2023 X reiterated that both parents had hit him. He told them he had seen his mother highly emotional and not coping and was fearful she would hit him if he did anything wrong.
The mother has minimised her physical chastisement of X in the context of these proceedings telling the single expert, in respect of one of the incidents, “it wasn’t a weighted boot, it was a fluffy slipper, that’s all! It was over homework.” This betrays a lack of awareness that using a shoe of any kind to hit X in relation to homework is not an appropriate method of discipline.
The mother told the single expert that even after she had a “wake up call” she did not stop hitting him “but only if I had really lost it.” The use of physical discipline when, on the mother’s own case, she has lost control, explains X’s expressed fears.
I accept that the parenting courses undertaken by the father and mother have gone some way to ameliorating risk.
The evidence suggests that X continues to exhibit extremely challenging behaviour in the mother’s care.
Parties’ conduct (including allegations of family violence)
Allegations of family violence: During the relationship
The mother gave generalised evidence in [13] of her affidavit – “the abuse started relative [sic] quickly and I was subjected to physical verbal, mental and emotional abuse, at [Mr Foy’s] hands…” and at [52]:
This initially influenced me to keep quiet when [Mr Foy] would hit me, slapped me, pushed me, threw objects at me, berated me, made derogatory comments about me and to me and swore at me. In the [Country J] culture women are taught not to speak up, but to endure the abuse, whether it be physical, verbal, emotional or psychological. While I pleaded with my parents and [Mr Foy's] parents to intervene and sought direction from […] from the […], I did not make any reports to the Police, doctors or anyone else.”
The father denies acting abusively or coercively controlling the mother.
There is an email from the mother addressed to the father and copied to her parents and her in- laws. It is dated 8 November 2009. It reads in part:
But it is completely unacceptable that you resort to beating when we have a fight! verbaly battling is ok but beating me isn't. Only a coward of a man resorts to beating his wife and I never thought I would be unfortunate enough to get married to one. Its pointless to be wonderfull and supportive & then resort to phisicall violence because all that wonderfulness just simply goes down the toilet! What is replaced in my heart is depression & anger.
I know you have a histroy of violence where you & your friends used to get drunk & get in to fights and though it was fun. But it is not at all accpetable for you to get in to a pattern of hitting me whenever I state the truth or you disagree with me…
The next time you lift a finger at me I will not hestate to go straight to the police station up the road & put an entry.
(as per original)
In May 2012 the father obtained a referral from his doctor to a psychologist. The reporting letter from the psychologist was in evidence and refers to the father having reported “a lot of arguing and fighting (verbal and physical) with his wife”.
It is difficult to evaluate the evidence since I have some reservations about the veracity of some parts of the mother’s evidence. If I was not otherwise concerned about her evidence then I would regard this contemporaneous document as being fairly significant confirmation of her allegations of physical violence by the father. I have had to consider whether her account may be invented or exaggerated or otherwise affected by her perspective in hindsight.
Notwithstanding my concerns I do not think that the mother was inventing the fact of the father having hit her during an argument in 2009. The psychologist’s reporting letter is further confirmation of there having been physical abuse. On the balance of probabilities I find that in the early years of the parties’ relationship the father was verbally and physically abusive.
I accept that the mother perceived her relationship with the father as generally abusive. She told her spiritual advisers in 2017 it was emotionally abusive. She did not mention physical abuse.
When the mother met with the single expert for the Child Impact Report the expert recorded the mother as indicating the father:
…first physically abused [me] less than a month into their marriage, “when he whacked me […]”. She said things would “boil over” every 3-4 months between them and he would hit her and [she] would try to [h]it him back but eventually she realised that this was fruitless.
The father denied having been physically violent. He said the mother would throw things. I accept that the parties argued. The mother’s account that there was physical interaction on both sides (the mother spoke of trying to strike the father in response). I do not accept the father’s blanket denials having regard to the contemporaneous documents. I accept that the father was violent to the mother and that the mother responded in ways which were also physical.
Allegations of family violence: After separation
In early 2022 an incident occurred which resulted in the making of a final apprehended domestic violence order (“ADVO”) in early 2022. For the ADVO the mother was the protected person and the father was the person restrained by the order. The father was charged with “intentionally or recklessly destroy or damage property”. On entering a plea of guilty the court did not record a conviction pursuant to section 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the father entered into a conditional release order.
It is agreed that the father was returning X to the mother and the mother approached the father to speak about financial issues. The mother, in her Notice of Abuse told the court that during that conversation she accused the father of having lied to her. In response the father became angry and raised his voice.
The mother’s account is that:
[In early] 2022 whilst the Respondent and I were discussing some child related financial matters, the Respondent, whose aggressive tone of speech and behaviour kept escalating, and it culminated by the Respondent attacking me by throwing stones at me on my driveway whilst screaming death treats at me in our native language […]. [X] witnessed the incident from the back seat of the Respondent's car. [X] was traumatised by this and had to be supported with psychological counselling assistance, which the father deemed unnecessary, and he declined to support [X] emotionally nor monetarily. I made a statement to the police. Our next-door neighbours were willing to make statements in relation to the incident and their details were shared with the [Suburb K] Police. An Apprehended Violence Order was taken out by the police against the Respondent with myself and anyone in a domestic arrangement with me as the protected persons. …
The father’s account is set out in his affidavit:
[In early] 2022, [Ms Spall] and I had a verbal argument during changeover. This argument was again about financial matters and occurred in her driveway. Unfortunately, [X] was present. We both yelled at each other and [Ms Spall] slammed my car door several times, so hard that I thought it would cause damage. I then picked up some stones from the garden and threw them at her […] door. I did not throw the stones anywhere near [Ms Spall] and I did not mean to damage the door, but I am aware that the stones caused small dents to the door. [Ms Spall] has alleged that when I threw the stones, they were directed at her and that I screamed death threats at her in [Country J language]. This is completely untrue. I admitted to the Police that I threw small stones at the […] door in frustration at [Ms Spall's] actions in slamming my car door multiple times in front of [X]. When the matter came before the Court there was no mention of any alleged 'death threats' and I do not believe that the Police obtained any witness statements from any neighbours about this, as this simply did not occur.
The fact that the police did not charge the father in respect of an alleged threat to kill the mother is persuasive in my conclusion that the mother did not report any threat to the police. I find that on the balance of probabilities if the father had threatened to kill the mother she would have told the police, the police would have recorded this matter and the father would have been charged.
He told the family report writer he threw the rocks because he was angry and frustrated “but there was no intention to harm anyone”.
The parties were cross-examined about the incident. The father minimised his conduct both in his affidavit and his oral evidence. He said that the quantity of rocks thrown was smaller than the mother contended and that he did not intend to hit her.
I find that the father’s conduct on that day was family violence as that term is defined in the Family Law Act 1975 (Cth) (“the Act”). The fact that the mother’s conduct in discussing finances and opening his car door to continue the discussions triggered the father’s action explains but does not excuse his conduct.
X was present. X asked his father why he had thrown the rocks, according to the father’s account to the family report writer, the report writer recorded the father told X he was “sorry” and reported being “upset”.
I accept that X would have been frightened by witnessing these events.
The mother said, during cross-examination that according to her “learnings” X had suffered trauma from the womb. It was plain that the mother has come to view X as a victim of the father’s actions, albeit she acknowledged that prior to separation the father was a hands on parent.
Having found that the father did perpetrate family violence it is necessary for me to consider the impact of that finding for the orders I am being asked to make. The situation is both complex and difficult. I have also found that the mother has used violence in her dealings with the child. As the single expert recorded at [173]:
There is no easy resolution of this matter. Every possible outcome is beset by disadvantages and risks to [X]. There is no obvious solution that would meet his needs and negate even the majority of those risks.
(Emphasis in original)
I am being asked by the father and the ICL to make orders which would see X live with the father. The relevant question is whether such an order is likely to jeopardise X’s safety having regard to my findings about past family violence.
During the parties’ intact relationship, X was potentially exposed to his parents’ conflict, including incidents of family violence. There is no suggestion that X was exposed to any incident of family violence as between his parents between separation and early 2022 (or after the incident in mid-2022). During that period X has been exposed to chronic conflict between his parents and family violence from his parents (discussed elsewhere in these reasons). This is not a case where the court is selecting from options which are entirely without risk. Accordingly, while I consider that the findings about family violence are relevant, I am not persuaded that an order that X live with the father will be unsafe for X.
X’s psychological well-being
Ms D observed that “much of [X’s] trauma comes from living with the story over and over again”. In that regard he has been, from time to time encouraged by his mother to repeat his “chronology” or in another instance give the mother his “verbatim” of interview with the single expert.
The single expert’s focus, in endeavouring to identify options for X’s future care, was to offer opinions based on the evidence, about which alternative may operate to protect and enhance X’s psychological well being.
The evidence plainly supports the conclusion that X will be distressed by orders which see him live with the father. The single expert acknowledged that the extent to which this distress will abate will depend upon the quality of professional assistance the father and X receive. It is worth noting that the expert also believed that, if given custody, the father would be willing to undertake any professional help/services the court asked of him. Ultimately, the single expert preferred the alternative which saw X live with the father because of the medium to long terms advantages to his psychological well being of being exposed to a new or different narrative, of a father who was available to him and perceived as safe. In this environment, the single expert saw the only opportunity for X to have a relationship with both parents, was for him to live with the father.
Capacity of each parent to provide for the child’s developmental, psychological, emotional and cultural needs
The father
One of the factors highlighted by the single expert report is the father’s reflective limited capacity. She provided examples. She did however conclude:
Despite these limitations, [Mr Foy] is likely to be able to provide [X] with a well organised, emotionally contained and structured day to day life. With oversight and input provided by a child psychologist who could help [Mr Foy] to understand how to respond to [X’s] emotional needs, it is likely that [Mr Foy] would be a good enough parent.
The evidence about the father’s rigidity in ceasing supervised time also cast doubt on his reflective capacity. It is accurate to conclude that the mother was proposing amendments to court orders which the father was not obliged to accept. It is also true that when the father accepted the mother’s proposal she again moved the goal posts by indicating that the time would not occur that week on the day she had proposed. The father’s response – ceasing time was disproportionate and lacked child focus.
The single expert also highlighted the father’s original proposal about X’s time as being an example of his limited insight into X’s needs. I accept that the father’s proposal is limited but he explained his fear that more lengthy periods would, in his mind, give greater opportunity for the relationship between X and himself to be destabilised by discussions about allegations of abuse. Given the father’s experience his reticence is understandable. He gave the impression that he understood the need for X to see and spend time with the mother but was afraid of further allegations.
In cross-examination the father appeared to have increased his reflective capacity since the interviews with the single expert in September 2023. I note that since the report was released he has attended and completed the six week tuning into kids course and a “talking with your kids seminar”. The father also indicated in an answer to a question by the ICL that he had completed a six week anger management course.
The father was cross-examined about the challenges he and X might face if the court made the orders he was seeking. He intended that X have access to a psychologist. He knew he would need to discuss the change and reassure X he was safe, his father was here to help him and he would, in due course, see his mother. The father is able to take extended leave from work to facilitate the transition.
The mother
X has been exposed to his mother’s emotional dysregulation. In October 2023 the single expert recorded:
[X] said that his mother also hits him, "occasionally. Bur [sic] she has stopped
hitting me now. She says a special word - beach - and then she calms down.
She used to shout and scream. She sometimes cries. But less than she used to. I
do worry about Mum. Like if she can't take it anymore and she explodes. And
it's good that she's going to parenting classes too.”
(as per original)
The mother conceded she struggles with emotional regulation. The court recognises how difficult the process of giving evidence can be for a witness. The mother broke down from time to time in the witness box and court was adjourned to allow her time to compose herself.
The challenges which confront the mother are not new. Text messages between the parties after separation demonstrated the mother’s frustration with X’s behaviour – behaviour she attributes to the influence of the father. The mother accepted she told the father, after X hit her: “Fine you keep him permanently” and “Tell him his mother is dead”, “You and he are well come [sic] to each other”, “from now on tell him his mother is dead”.
The messages the mother sent also read:
•Sure [Mr Foy]
•Oh and your absolutely right! I should have never hit him.. Because he is the monster you created
•After all How can I reason against your poison.
•So he is now your monkey in your circus with your poison
•I no longer welcome this behaviour, this disrespectfulness, this type of insulting in my life any more.
(as per original)
In June 2023 X described his mother to Ms G as “burnt out and in a bad way”. He said she yelled and hit, but had been hitting less.
The mother considers that X’s conduct is a consequence of his father’s conduct. She described X to Dr F and Ms D in February 2024 in the following terms:
…Doesn’t like to admit faults and says a lot of lies, gaslighhts and tries to make veryone else look crazy – Majority of the time and this is very much mood dependent, and devise [device] depended [sic]…
A grandiose exterior with very low self esteem underneath – Further, there is a fair amount of Dr Jakel [sic] Mr Hyde types of behaviour displayed by [X] – is this Narcissism?
(as per original)
The mother has learnt that when she is overwhelmed by X’s behaviour it is necessary for her to remove herself from the situation. It is clearly preferable that she do this, as opposed to responding in a manner which is physical or emotionally uncontained. However, X is only eleven and the mother gave evidence of at least two occasions where she had needed to absent herself in order to mitigate her response. One involved her parking for half an hour (according to the mother) and 90 minutes (according to X. On that occasion she said X was “clingy” and not listening to her. The other involved events in about mid-2024. The mother described X’s reluctance to accompany her to the home of a friend. While there, X lay on top of his mother and told her that he did not want to go to the park. When the mother and her friend started speaking to each other in Country J language, X responded by biting a piece out of the friend’s sofa.
The mother has spoken to X about boarding school and has been referred to L Family Services to receive respite care. The mother has struggled with being the full-time parent to X.
The mother has been seeing a therapist once a week (alternating between her psychologist Ms M and a trauma therapist).
The mother’s affidavit filed 7 January 2025 indicated that she would be on leave from work until the proceedings were concluded. It was not clear when that leave had commenced.
The biggest obstacle to the mother being able to regulate her emotions is the ongoing conflict with the father and her now fixed belief that X has been abused. The mother attributes X’s misbehaviour in her care to the father’s influence and the father’s “abuse” and this impacts her capacity to act in a way so as to assist X in managing his own emotions.
The mother’s email to her parents dated 3 September 2023 (exhibit 18) is a stark example of her views of the father and his conduct. It reads in part:
Hell is also to know that there are no dreams left but a major fight and sacrifice to save that little broken boy from a fate worse than swift death. Because to live this sever psychological damage of this proportions is a fate worse than death.
(As per original)
The mother could not conceive of a situation which involved X spending unsupervised time with the father and there is no evidence to support the conclusion that she would be able to support the relationship or the time. In fact, to the contrary, she has ensured that X now perceives the father as dangerous. She has involved X in the conflict and adult issues, clearly taking him to task for his discussions with the single expert.
When the father gave X a graphic novel during the interviews for the single expert report the mother was recorded by the single expert to have “made a screwed up face, saying “Oh!” with obvious disapproval and [X] looked downcast.”
X told Ms G “he was sad that his mother was angry at him for hugging his Dad” at the interviews for the Child Impact Report.
The single expert in her evaluation of the interviews and written material offered the following observation:
Understanding how acutely vulnerable his mother is, and how much she needs him to take on her view of the world for her to be emotionally regulated, [X] has now made a decision that he is unable to have any sort of relationship with his father, by withdrawing his previous request to spend time with him. This protects his mother, but most importantly, it protects him: he has been on the receiving end of her wrath when he dared to express a desire to see his father.
This underpins the single expert’s conclusion that in the care of the father the child may be protected from the mother’s emotional dysregulation, from his need to make his conduct conform to her expectations and he may have his father’s permission to engage in a relationship with his mother in a way that the mother cannot reciprocate.
I have considered, as did the single expert, whether the most appropriate option is for X to continue to live with the mother while she continues to work on her own psychological well being. However, the single expert concluded that it would not be possible for X to “rewrite the narrative” while he lives with the mother, as she would need some level of “buy in” and it would appear that the mother’s beliefs have grown both larger and firmer as she has been questioned or challenged.
Parental responsibility
The parties have no present capacity to communicate or cooperate. They lack trust in one another. It is inconceivable that they share joint decision making responsibility. Since I have concluded that X should live with the father it is appropriate that he exercise parental responsibility for major long term issues.
Supervision
The single expert gave evidence that if X were to live with the father it would not be safe initially for his time with the mother to be unsupervised. The risk is primarily to X’s psychological well being. She expressed the view that supervision would provide a possibility for the mother to regulate her emotions sufficiently to be in the moment with X and allow him to enjoy his time with the mother. She also expressed the view that supervised contact in a therapeutic setting would help to rebuild X’s relationship with his mother into one that is not dependent on X having to win her attention by being negative of his father. I accept that evidence in light of my earlier findings about the interactions between X and the mother during the currency of these proceedings.
No time
The ICL and father sought a period of no time between X and the mother – where in effect she will be restrained from making contact. The intent of the order is to assist X to transition. I accept that if he were to move into the care of the father while continuing to see and speak with his mother it is unlikely that the transition would be successful. X has historically acted and spoken in ways which have been designed to support his mother and this would, unless time were suspended, undermine the possibility of a successful transition. No doubt he will experience this as difficult and distressing, indeed the single expert opined he may consider it the ultimate betrayal, that he has failed his mother. He will need expert professional assistance in addition to his father’s support. I propose to make an order that there be no time between X and the mother for 3 months. Compliance with the order will be a pre-requisite to time recommencing.
The single expert indicated that in her professional opinion X would benefit from the reintroduction to time with the mother occurring in a professional therapeutic setting to support both X and the mother and the orders will provide for that to occur.
Injunctions
The ICL’s minute of order sought injunctions to restrain the mother from approaching or contacting X, other than in accordance with the terms of the order. The injunction is designed to protect X while navigating the transition to his father’s household. It is designed to ensure that the mother is clear that she is not permitted to approach or contact X and imposes consequences in the event of non-compliance. Such orders are appropriate in this case.
The ICL sought an order in submissions that the father be restrained from changing X’s school. I accept that if X is to change both the home in which he lives and the parent with whom he lives there is merit in him remaining in his current school. The objective evidence suggests that school is a source of stability. He told the school counsellor (in the context of a discussion a specific class) that he really wanted to stay at his school. The father gave evidence that his work is flexible enough to permit him driving X to school and work in an office proximate to X’s school. I propose for those reasons to make the injunction as sought.
Overseas travel
The father sought orders which would permit him to obtain a passport without the mother’s signature and take X overseas. The mother opposed the making of these orders because of a concern that the father may not return X to Australia.
Both the mother and father are of Country J heritage. X’s paternal grandparents live in Country J. In recent years the father has visited his parents as he says they are unable to travel. X’s maternal grandparents live in Country J but spend as much time as visa requirements permit in Australia. He has had the opportunity to see and spend time with them.
I find that it is in X’s best interests to have the opportunity to travel overseas, particularly having regard to his cultural heritage and family ties.
I am not persuaded that there is any evidence to support a conclusion that the father is a flight risk. He has a home in Australia and full-time employment. While he does not have family in Australia, he has been resident for a lengthy period of time. I therefore propose to make the orders he seeks.
Therapeutic orders
There is a need to ensure that X and the parents have the support of professionals which will be required to provide the best opportunity for X to settle in the father’s care and begin to enjoy a relationship with both parents.
The father agreed that therapy was necessary. In the first instance, as discussed above, the single expert saw the therapeutic environment as the appropriate place to reintroduce time between the mother and X and there was no challenge to that evidence, which I accept.
I propose to make orders which put in place the regime advocated for by the ICL concerning therapy.
Supervision by Family Consultant
On 24 March 2025 I made an order under s65L of the Act. I propose to make that order on a final basis. I make that order in place of an order that the ICL remain in the matter. This will permit a family consultant to assist the parties to implement the orders, which in my view, will assist X. The family consultant has expertise in child and family disputes, particularly those in the court system. The family consultant is independent of both parties.
Costs of ICL
The ICL sought costs in the sum of $10,126.20 from each parent. The mother did not oppose the making of a costs order, although her counsel submitted she would need time to pay. The father opposed the order indicating an incapacity to pay, but making no further submission.
The principles which govern this application are found in s 117 of the Act, in particular s 117(1),(2), (2A), (3) and (4).
I am satisfied that the parties, the court and the child have gained considerable advantage from the involvement of the ICL in the proceedings. I note that both parties are in paid employment. The father gave evidence he is in receipt of $165,000 per annum. I am not satisfied that s117(4)(b) is engaged.
I will give both parties the opportunity to apply for a waiver and if unsuccessful six months to pay the sum sought.
I certify that the preceding one hundred and sixty-six (166) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie delivered on 27 March 2025 and re-issued on 31 March 2025 Associate:
Dated: 31 March 2024
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