Froth & Schneider
[2011] FamCA 378
•25 May 2011
FAMILY COURT OF AUSTRALIA
| FROTH & SCHNEIDER | [2011] FamCA 378 |
| FAMILY LAW – CHILDREN – Whether there is an unacceptable risk of psychological harm – Whether there is an unacceptable risk of emotional harm. |
Family Law Act 1975 (Cth) Sections 60CA, 60CC, 61DA
| Kent & Shaw [2010] FamCA 587; Leighton & Carey [2010] FamCAFC 94; Marvel & Marvel (No. 2) [2010] FamCAFC 101; |
| APPLICANT: FATHER | Mr Froth |
| RESPONDENT MOTHER: | Ms Schneider |
| FILE NUMBER: | BRC | 5631 | of | 2007 |
| DATE DELIVERED: | 25 May 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Loughnan J |
| HEARING DATES: | 11, 12 & 13 May 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT FATHER: | Mr Gunn (11th & 12th May 2011) |
| SOLICITOR FOR THE APPLICANT FATHER | Mr Hawkes |
| COUNSEL FOR THE RESPONDENT MOTHER | Mr McGregor |
| SOLICITOR FOR THE RESPONDENT MOTHER | Mr Subramanian |
| COUNSEL FOR THE INDEPENDENT CHILD LAWYER | Mr Slade-Jones |
| SOLICITOR FOR THE CHILD | Mr Grainger |
Orders
1.All current parenting orders in respect of L, born … May 2005, are discharged.
2.The parties shall have equal shared parental responsibility for the child.
3.The child shall live with the father:
(a)During school terms from 6.30 pm Friday until 6.30 pm Sunday of each alternate weekend and from 6.30 pm each Wednesday to the commencement of school the next day;
(b)Unless the parties agree to the contrary the first of those weekends shall commence on 27 May 2011.
(c)For one half of each of the school holidays, being the first half in odd numbered years and the second half in even numbered years;
(d)When the child spends time with the father in the first half of a school holiday period the child will recommence living with the father on the first weekend following those holidays;
(e)When the child spends time with the father in the second half of a school holiday period the child will recommence living with the father on the second weekend following those holidays;
(f)If pursuant to (c) above the child is to be with the mother for the first half of the Christmas school holidays she shall nevertheless live with the father from 2.00 pm Christmas Eve to 2.00 pm Christmas Day.
(g)If the child would otherwise not be with the father on Father’s Day she shall spend between 9.00am and 5.00pm with the father on that day;
(h)If the child would otherwise not be with the father on the father’s birthday (…) and that is not a school day, she shall spend between 9.00 am and 5.00 pm with the father; and
(i)If the child would otherwise not be with the father on her birthday (… May) and that is not a school day, she shall spend between 9.00 am and 5.00 pm with the father.
4.Unless the parties otherwise agree, at all other times the child shall live with the mother. In addition:
(a)If pursuant to 3(c) above the child is to be with the father for the first half of the Christmas school holidays she shall nevertheless live with the mother from 2.00 pm Christmas Eve to 2.00 pm Christmas Day;
(b)If the child would otherwise not be with the mother on Mother’s Day she shall spend between 9.00 am and 5.00 pm with the mother on that day; and
(c)If the child would otherwise not be with the mother on her birthday (… May) and that is not a school day, she shall spend between 9.00 am and 5.00 pm with the mother.
5.Unless changeover occurs at the commencement or conclusion of school or the parties otherwise agree, the child will pass between the parents by the parent who has the care of the child delivering her to the other parent at Location 1 at Brisbane Suburb 1.
6.In the event of a medical emergency, the parent who has the care of the child must immediately inform the other of the emergency.
7.The parents shall keep each other advised of their current land line and mobile phone numbers and their residential address and shall advise the other of any proposed change of address as soon as practicable and in any event in writing within 3 days of any such change.
8.Other than in the case of an emergency, whereupon the parties shall use the fastest means of communication possible, the parents shall communicate by communication book to be exchanged on each changeover with such communications to be confined to issues going to the welfare of the child.
9.The parents are at liberty to telephone the child twice weekly when the child is in the care of the other parent and shall facilitate the child having telephone communication with the other parent at her initiative, with reasonable frequency.
10.The parties are restrained from denigrating each other or allowing another person to denigrate the other party in the presence or hearing of the child.
11.The parties shall forthwith sign any authorities and give such approval as is necessary to ensure that they are each able to obtain medical reports and medical information from any doctor and hospital or any other person who provides the child with medical care or treatment and, at the cost of the parent seeking the information, all information available to parents from the child’s school.
12.The Court Requested that Family Consultant, Ms B (or the nominee of the Manager of Children’s Services at Brisbane) and the Independent Children’s Lawyer identify parenting and or post separation courses that would be of assistance to each of the parties and the ICL shall inform the parents in writing of that course or those courses as soon as practicable.
13.As soon as practicable, the parties are to enrol in any course or courses to which they are directed by the ICL, shall attend to the conclusion of that course or courses and shall provide to the ICL a copy of a certificate or letter confirming that attendance.
14.The Order for the appointment of the Independent Children’s Lawyer shall be discharged six (6) months from the date of this Order.
15.Pursuant to section 65L, for a period of six (6) months from the date of these orders, Family Consultant, Ms B or the nominee of the Manager of Children’s Services at Brisbane shall give such assistance to the parents as is reasonably requested by either of them in relation to compliance with, and carrying out these orders.
16.The parties are at liberty to restore these proceedings to the list within twenty one (21) days from the date of these orders, on short notice to each other, in relation to the form of the orders.
17.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 are set out in the attached Fact Sheet.
IT IS NOTED that publication of this judgment under the pseudonym Froth & Schneider is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 5631 of 2007
| Mr Froth |
Applicant
and
| Ms Schneider |
Respondent
REASONS FOR JUDGMENT
introduction
L is 6 years of age. She is the daughter of Mr Froth and Ms Schneider. She lives with the mother and until the hearing had only supervised time with the father at the Contact Centre 1 at Brisbane Suburb 2 every Saturday from 11.30 am to 1.30 pm and every Sunday from 1.30 pm to 3.30 pm. The father proposes that the child live with him and that after a period with no contact, the mother spend time with the child, initially under an arrangement supervised by a Family Consultant. The mother proposes that the father’s application be dismissed and that the arrangement defined in 2008 orders, whereby the child would live with her and spend unsupervised time with the father, be restored. Allegations that the father sexually abused the child are no longer pressed. The key issue is whether there is an unacceptable risk of emotional or psychological harm to L if she continues to live predominantly with the mother.
applications
In the fashion of modern family law, none of the parties had a minute of the orders they sought available by the close of final submissions. That said, the outline of the regime sought by each of the parties was described prior to the close of submissions. I required the parties to forward the orders they sought to my associate and each other on Monday 16 May 2011.
By a Minute of Orders provided to my chambers at 8.00 am on 17 May 2011, the father seeks:
1. That the Father and Mother have joint parental responsibility for the Child [L] born […] May 2005.
2. That unless otherwise prescribed below the Child shall live with the Father.
3. That the parents discuss and agree on what Queensland educational facility/s and school/s the Child shall attend but failing any agreement then the Father shall decide (until the Child attains 10 years of age).
4. That prior to 12th June 2011 the Mother must do all things necessary to complete counselling pursuant to Section 65L of Family Law Act.
5. In the period commencing 12th June 2011 until 14th August 2011 the Mother shall spend time with the Child each Sunday from 9.00 am until 5.00 pm.
6. Until the child turns 7 years of age the Child shall reside with the Mother each second weekend commencing from 9.00 am Saturday until 5.00 pm Sunday.
7. Thereafter the child shall reside with the Mother each alternate weekend commencing from after school Friday until 5.00 pm Sunday.
8. Upon the Child turning 7 years of age the Orders above shall be suspended during gazetted Queensland school holidays whereupon in even numbered years the Child shall live with the Mother for the first half of each school holidays and for the balance with the Father. In odd numbered years the Child shall live with the Father for the first half each school holidays and for the balance with the Mother.
9. On each alternate Christmas period the above Orders shall be suspended and commencing from 4.00 pm Christmas Eve until 4.00 pm on Christmas Day the Child shall live with one parent and then from 4.00 pm Christmas Day until 5.00 pm Boxing Day the Child shall live with the other parent.
10. For the Child’s birthday, the Father’s birthday and the Mother’s birthday the above Orders shall be suspended and whoever the Child is not ordinarily with pursuant to the Orders operating at the time the Child shall spend four hours with the other parent commencing from after school or 3.00 pm until 7.00 pm on the day.
11. For the purposes of these Orders and changeover of the Child between them the parents shall meet in [Location 1] at [Brisbane Suburb 1] (as they have been doing so for the last two (2) years or so).
NOTATION
12. So long as it is in the Child’s best interests there is nothing in these Orders to prevent the Mother and the Father agreeing and making arrangements outside of these Orders in respect of the Child’s welfare.
By a Minute of Orders provided to my chambers at 8.30 am on 18 May 2011 the mother seeks:
1.That the father’s application filed on 20 July 21010 be dismissed
2.That the Order made on 19 August 2010 be varied by the addition of the following Orders:
“17.That the parties do all acts and things and sign all documents reasonably necessary to cause the child [L] born on […] May 2005 to attend counselling with a family counsellor to be agreed between the parties within 14 days of the date of these orders and in default of agreement to be appointed by the Independent Children’s Lawyer
18.The parties shall attend on the counsellor appointed pursuant to Order 17 hereof at all such reasonable times as shall be directed by the counsellor and, in particular, shall cause the said child to attend on the counsellor as directed by the counsellor
19. The parties shall share the costs of the counsellor in equal shares”
3.All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.
4. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
5.Upon the appointment of the counsellor referred to in Order 2 hereof, the Independent Children’s Lawyer be discharged.
6.Pursuant to s.65DA(2) and s.62B, the particulars of the obligations of 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 the Orders.
By a Minute of Orders provided to my chambers at 11.11 am on 17 May 2011 the ICL seeks:
(1)That all previous Orders made in relation to [L] born […] May 2005 (“the Child”) be discharged.
(2)That the Child live with the Father.
(3)That [Mr Froth] (“the Father”) and [Ms Schneider] (“the Mother”) (collectively “the Parents”) have equal shared parental responsibility for the long term care, welfare and development of the Child.
(4)That pursuant to Section 65L of Family Law Act 1975 a family consultant (“the nominated family consultant”) give the Parents and the Child the following assistance:
(a)For the Mother, to assist in:
(i)Accepting the Judgment as it relates to findings about the allegations of sexual abuse;
(ii)The Mother’s parenting of the Child in circumstances where:
A.The Child is being informed that her Father did not sexually abuse her;
B.The Child will be living with the Father;
(b)For the Child to be informed that the Father did not sexually abuse her (the Father to be present if so advised by the nominated family consultant);
(c)For the Father, to assist him in managing his emotions associated with incorrectly being accused of sexually abusing the Child.
(5)That the Parents engage, and cause the Child to engage in the assistance provided pursuant to Order 4.
(6)That the Section 65L assistance referred to above be undertaken as follows:
(a)The Father to commence his appointments as soon as the nominated family consultant decides;
(b)The Mother to commence her appointments as soon as the nominated family consultant decides;
(c)The Child to commence her appointments as soon as the nominated family consultant decides AND the Father be responsible for taking the Child to such appointments;
(d)The Parents and the Child are each to:
i.See the same nominated family consultant, if possible; and
ii.Attend upon the nominated family consultant for such time as (s)he recommends.
(7)That the Independent Children’s Lawyer provide the nominated family consultant a copy of the reasons for Judgment delivered today.
(8)That the Child spend time with the Mother to commence not before one (1) month from today AND not before a date recommended by the nominated family consultant as follows:
(a)On an alternate weekend basis from Friday (collection from school) until Monday (delivery to school), with such weekends to be extended to include public holidays;
(b)On a weekly basis from Wednesday (collection from school) until Thursday (delivery to school);
(c)For half of each of the short school holidays AND IN DEFAULT OF AGREEMENT as to which half, for the second half of each such school holiday period;
(d)For half of the Christmas school holidays commencing in 2011/2012 AND IN DEFAULT OF AGREEMENT as to which half, for the second half of each such school holiday period;
(e)From 9:00am on 24 December 2011 until 12 noon on 25 December 2011 and during the same times in each alternate year thereafter;
(f)From 12 noon on 25 December 2012 until 6:00pm on 26 December 2012 and during the same period in each alternate year thereafter;
(g)On the Child’s birthday, if the birthday is on a school day for two (2) hours from 3:30pm until 5:30pm and if the birthday is not on a school day, from 12 noon until 3:00pm on that day;
(h)On each Mother’s from 10:00am until 5:00pm PROVIDED THAT if Father’s Day falls on a day when the Child would otherwise be spending time with the Mother, then such period be suspended;
(i)On the Mother’s birthday, if the Child is attending school, from 3:30pm until 5:30pm, and if the birthday is not on a school day, from 12noon until 3:00pm on that day.
(9)That commencing not before one (1) month from today AND not before a date recommended by the nominated family consultant, the Child communicate with the Mother at all reasonable time but no more frequent than twice weekly.
(10)That handovers be affected at the Child’s school or, should the handover take place outside school hours, at [Location 1, Brisbane Suburb 1].
(11)That for the purposes of these Orders the nominated family consultant have liberty to apply.
(12)That the Parents notify each another as soon as practicable in the event that the Child is diagnosed with any serious medical condition or suffers a medical emergency in that parent’s care.
(13)That the Mother be at liberty and the Father do authorise the Mother to obtain any of the Child’s medical reports and medical information from the Child’s doctor and hospital or any other person who provides the Child with medical care or treatment.
(14)That the Parents be restrained, and injunctions are hereby granted restraining each of the parents, from:
(a)Denigrating the other in the presence or hearing of the Child;
(b)Permitting any other person to denigrate the other Parent in the presence or hearing of the Child.
(15)That the Parents use email or a Communication Book to communicate to discuss issues relating to the care, welfare and development of the Child, and, in the case of a Communication Book:
(a)Such book remain with the party with whom the Child is spending time;
(b)Such book pass between the Parents in a sealed envelope at the time of handover;
(c)No part of the Communication Book may be removed and the Parents each ensure it remains intact while it is in their possession.
(16)That the Parents each attend:
(a)a parenting course;
(b)pursuant to section 65LA a post‑separation parenting program;
(c)any other course or course of instruction;
nominated by the Independent Children’s Lawyer within the time prescribed by the Independent Children’s Lawyer AND that each Parent provide to the Independent Children’s Lawyer a certificate confirming that Parents attendance.
(17)That the Independent Children’s Lawyer consult the Parents and inform the Parents of the course set out in Order 16 within fourteen (14) days hereof.
(18)That the Order for the appointment of the Independent Children’s Lawyer be discharged seven (7) months from the date of this Order.
(19)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 are set out in the attached Fact Sheet.
NOTATION
It is requested that [Ms B] be the nominated family consultant for the purposes of Order 4, if possible.
written evidence
The father relies on:
Affidavit of the father filed 20 July 2010
Affidavit of the father filed 1 April 2011
The mother relies on:
Affidavit of the mother sworn 5 April 2011
Affidavit of the mother sworn 8 April 2011
Affidavit of Witness 1 sworn 15 September 2010
Affidavit of Witness 2 sworn 15 September 2010
Affidavit of Witness 3 sworn 31 March 2011
Notice of Child Abuse or Family Violence filed 22 October 2010
Expert Evidence
The following expert evidence was relied on:
Family Report by Ms D dated 10 October 2007
Family Report by Ms B dated 15 July 2008
Family Report by Ms B dated 18 April 2011
Magellan Report, Department of Communities Queensland dated 25 October 2010
THE REPORT OF MS G
At the outset of the hearing the mother’s counsel sought leave to rely on a report of Ms G, a Psychologist, dated 31 August 2010. Leave was opposed on behalf of the father and although not taking a formal position, counsel for the Independent Child Lawyer (the ICL) made submissions which argued against granting leave. I refused leave and said that I would give reasons for doing so in the course of reasons for judgment in the matter.
Learned counsel for the mother spoke to three bases on which it was contended that the report could be admitted.
Firstly, it was argued that the report is admissible as an expert’s report. In this regard, it is not suggested that any attempt was made to bring the report within the provisions of the Family Law Rules. For reasons that were not explained no effort was made until the commencement of the trial to obtain leave to rely on a report dated 31 August 2010 from another expert witness on an issue for which a single expert had been appointed – r 15.49. No formal application was made for leave – r 15.52. Nothing was put before me in relation to many of the matters set out in r 15.52 (2) such as (a), (c), (d), (e) & (f). Rule 15.52 (g) is addressed in the report insofar as there was initially to be a therapeutic relationship between Ms G and the child. However, there is no or no adequate evidence going to r 15.52 (e) and (f) insofar as the administration and reliability of the PAI test is concerned. There was no compliance with r 15.54. Not only is there no evidence that the required matters were addressed, there is no evidence that any instructions were given.
R 15.64 describes the possible consequences of non compliance with the Rules, in particular, excluding the report.
There are exceptions to the expert witness rules, including an exception for a treating practitioner. Rule 15.54 provides:
(1) This Part (other than rule 15.55) does not apply to any of the following:
(a) evidence from a medical practitioner or other person who has provided, or is providing, treatment for a party or child if the evidence relates only to any or all of the following:(i) the results of an examination, investigation or observation made;
(ii) a description of any treatment carried out or recommended;
(iii) expressions of opinion limited to the reasons for carrying out or recommending treatment and
the consequences of the treatment, including a prognosis;(b) evidence from an expert who has been retained for a purpose other than the giving of advice or evidence, or the preparation of a report for a case or anticipated case, being evidence:
(i) about that expert's involvement with a party, child or subject matter of a case; and
(ii) describing the reasons for the expert's involvement and the results of that involvement;(c) evidence from an expert who has been associated, involved or had contact with a party, child or subject matter of a case for a purpose other than the giving of advice or evidence, or the preparation of a report for a case or anticipated case, being evidence about that expert's association, involvement or contact with that party, child or subject matter;
(d) evidence from family consultant employed by a Family Court (including evidence from a person appointed under regulation 8 of the Regulations).
Thus, in theory Ms G could give evidence about her examination of L, her treatment and prognosis. Unfortunately the nature of Ms G’s role was blurred not only in respect of her methodology but also in its intent. In her letter of 6 August 2010[1] to the mother’s lawyers, Ms G sets out the background to her involvement with L and says among other things: “In my decision making about whether to support the mother’s endeavours or not I …”. That leaves it open, perhaps likely, that the intervention was other than therapeutic.
[1] Annexure … 2(e) to the father’s affidavit sworn 31 March 2011
That is not the end of the matter. The Rules of Court are not sacrosanct. In particular they have no prescriptive role in relation to evidentiary rulings in that they cannot prevail over the Evidence Act or evidentiary provisions of any primary legislation, including the Family Law Act[2]. Even if they could, the provisions of the Rules do not bind the Court and can be dispensed with. The Rules of Court are intended to provide a framework of practice and procedure but must be subordinate to the objects of the primary legislation and the need to achieve a just outcome. However, in this instance the Rules simply set out practices, whether time-honoured or from recent case law, going to safeguard the value of opinion evidence.
[2] Section 8 Evidence Act 1995
The purpose of tendering Ms G’s report is not as a treating practitioner. The purpose of the tender was to introduce an expert opinion on one of the key issues in the case.
I cannot fairly admit the report as that of an adversarial expert. The reasons include the fact that there has been no real opportunity for the other parties to test the report. There is no evidence as to the instructions given for its preparation. Ms G’s affidavit asserts impartiality when it is likely she decided (in her words) to “support the mother’s endeavours”. The affidavit does not assert that she has read, understood and complied with the relevant Rules or with any professional code.
Secondly, it was argued that the report was admissible as evidence of representations made by a child. Of the 16 pages of the report I could find only two paragraphs in which the deponent quotes (as opposed to interpreting) things said by the child that are relevant to the issues for determination. There is evidence elsewhere of similar statements. It is not in question that from time to time the child has made disclosures against the father or the nature and content of those statements.
Thirdly, it was argued that the report was admissible as to what information was given to the mother. This is a backhanded reason to admit evidence. If the mother wants evidence about being affected by things that she was told, then presumably she is able to give that evidence herself.
Perhaps as part of the second and third arguments, it was submitted that the report is admissible in any event as part of the res gestae of the case. I understood that argument to be that the child was taken to see Ms G and the events involved in those consultations are relevant in themselves. Just because it happened does not make it relevant and probative.
There are many problems with the admissibility and probity of the report. In my view, they start from the conversion of a therapeutic intervention to a forensic report. They are necessarily different tasks. Ms G administered a test called the Personality Assessment Inventory to the mother and maternal grandmother. The results of that test were apparently the foundation for Ms G’s conclusion that the father sexually abused L on multiple occasions. Learned counsel for the mother could not take me to any authority, wherein, that test was relied on in any court to found a finding of fact. Nor is that even asserted in the report itself. It is one thing for a treating practitioner to form an opinion on an issue for the purpose of identifying appropriate treatment and quite another for that opinion itself be relied on in relation to a critical if not the critical question before a court. Quite fairly, the mother’s counsel did say that in his opinion, lie detector results are not admissible for such a purpose. I took him to mean opinion evidence interpreting the results of the use of a mechanical device.
Section 135 of the Evidence Act provides for the exclusion of otherwise admissible evidence on certain bases:
SECT 135
General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
This provision is not displaced by section 69ZT of the Family Law Act.
As learned counsel for the father and for the child noted, there is prejudice in admitting the report. For example, there is now no opportunity for the father to challenge the report and no opportunity to adduce expert evidence about the reliability or application of the PAI test. Irrespective of the reason, the fact is that the report only deals with the mother and the maternal grandmother, not the father. What then could be the benefit of the report’s conclusions?
There are issues that arose after I decided to exclude the report. Even with me limiting time for cross-examination and submissions, the hearing concluded at about 5.30 pm on the last day of the hearing. Had the report been admitted, it is likely that the hearing would have been adjourned part-heard, arguably leading to an undue waste of time.
Finally, as the case has been argued, the report goes to no relevant issue, save for the fact that the mother read in it, that the father sexually abused the child. It is an agreed fact that she read that in the report. I acknowledge that the exclusion of the report itself may have lead to the mother not pressing her case about sexual abuse. I was not told that was what happened but it could be so.
Ms G’s report includes a recitation of her formal qualifications and experience. Ms G deposes to having given evidence as an expert in family law cases and I have no reason to doubt that. By the comments above I mean no criticism of Ms G. The problems arise in trying to find an appropriate place for her report in the body of evidence in this case.
THE HEARING
The commencement of the hearing was delayed because subpoenaed documents could not be found in the Registry. I was not told why counsel had left the inspection of documents to the morning of the trial. The hearing was delayed on the second morning as I was told that there needed to be brief discussions between counsel for 10 minutes or so. Remarkably the father’s counsel then told me that with his client’s knowledge and consent he (counsel) would not be able to appear for his client on the third day of the hearing as he had taken instructions to appear in another case. I was told that counsel had understood, notwithstanding that the matter was listed for hearing over 3 days, that it might conclude in 2 and that the time lost due to the missing exhibits impacted on the trial duration. I was told that the father’s solicitor would take up the advocacy role for his client. It is trite to say that this represented a highly undesirable turn of events. The 10 minute discussions extended for about one hour but I was told that they were useful.
On 13 May 2011 the oral evidence was completed, submissions were made and at about 5.30 pm, I made interim orders by consent and otherwise, reserved judgment.
relevant people
L was born in May 2005 and as at the date of the hearing was almost 6 years of age.
The following are persons of particular significance in her life.
The father was born on in 1974. He is 37 years of age and lives at Brisbane Suburb 2. Although he does not live with her, he has a partner, Ms A who has a daughter, H. He works three mornings a week in his own transport company which has a contract with the government for delivering food. He earns about $52,000 pa from that contract. He also works in the marine industry as a subcontractor. He undertakes that work on a casual basis.
The mother was born in March 1977 and is aged 34 years. She lives at Town 1 in the State of Queensland with L and her Aunt, Witness 3. She studies Religious Studies at Educational Institution 1.
The maternal grandmother, Witness 1 lives in Melbourne with the maternal grandfather Mr C.
Witness 3 is the sister of the maternal grandmother. She is a health care worker. The mother and L live with her in her home at Town 1.
short history
The father and mother commenced a relationship in October 2003 and were married on 14 January 2005. L was born in May 2005. The parents separated on 30 September 2006.
CREDIBILITY
This case involved allegations of abuse sexual abuse by the father against the child and of emotional abuse by the mother or others in her household. The alleged behaviours are likely to have occurred in private or at least in the absence of any independent witnesses. In those circumstances the credit of witnesses is important. For reasons that I will explain shortly the father’s credit has only peripheral importance to the outcome of the trial. That of the mother and her witnesses assumed greater significance.
The father got off to a bad start when being identified by his counsel immediately after taking the oath, by volunteering that he was is innocent of all allegations. On other occasions he sought to address what he perceived to be issues in the case rather than answer the questions asked of him in cross-examination. On the positive side, he made some concessions in favour of the mother without hesitation, such as that the child loved her. The father was an unsophisticated witness, in the sense that he readily conceded and amplified evidence about things he has said and done that reflect no general credit on him. For example he conceded that he had told the 5 year old L, in effect, that because of what she had said, he could go to gaol and might be killed there. He conceded that he had deliberately not paid child support because since 2007 the mother has made sexual abuse allegations against him. It may be that he does not see any problem with his actions. In that sense he might not know that he made admissions against interest.
It is a problem for the mother’s credibility, that she agreed to orders in 2008 that she did not believe were in L’s best interests. Like the father, during her cross-examination the mother was prone to protestations about her case and to answering questions she thought were behind those asked, rather than those that were asked. In my view, the mother’s evidence about her proposal to move to Melbourne, was not candid. In about June July 2010 her parents and two brothers moved to Melbourne. The mother would have it that leading up to that time and since, she never really formed an intention or desire to move with the child to Melbourne. She says that the issue was raised with the father and that “they” realised that it would not be practicable. However in her diary she records that in a conversation with her the father said he wanted 50% custody and told her that “I can’t leave for Melbourne” Why would she record that if there was never a serious proposal to go? It is likely that the matter was raised because the mother was contemplating such a move. It can hardly have come as a major revelation that such a move would make shared care impracticable.
During her cross-examination the mother was pressed on a number of occasions as to her belief at various times that the child had been sexually abused by the father. She variously answered that she was not 100% sure, that she was confused and puzzled. The mother said that she witnessed disturbed behaviour by the child; heard or heard of the child’s allegations and retractions; she knew that Psychologist, Ms G found that the father had committed abuse; was puzzled by the police and Department of Child Safety closing their files; and knew of the father’s denials. Later in her cross-examination, the mother was taken to the related question by learned counsel for the child. She was asked if she now believes that L was sexually abused and answered “No.” and soon after “I don’t know.”
These matters create doubt about the mother’s credit. Having said that, there seemed to be no guile in the mother’s testimony. The background facts squarely raise the possibility but I did not detect any intention by the mother to mislead the Court.
Witness 1 was an engaging witness. She gave her evidence directly and appeared to be very even handed. The effect of her evidence in cross-examination is that:
· far from disliking the father, she quite likes him although it is her impression that he did not like her;
· Far from representing a cloying or controlling presence on her daughter, she said that she and her husband had moved back to Melbourne for various reasons and she was not pressing for her daughter and granddaughter to move there too. She and her husband had six children and she did not want to take up the parenting role again;
· The course her daughter is undertaking “[Religious Studies]” at Educational Institution 1 is more of a general leadership and administration course than a religious course;
· In the context of this family and sexual abuse allegations going back over 5 years, “just keep an eye on it” was an understandable reaction by her to an alleged disclosure by L that the father told L to rub her clitoris and that he did it too.
It seems to me that the maternal grandmother has sought to present her evidence in the best light for her daughter’s case. It is impossible to see how the events of the last 5 years could have unfolded if so influential a figure as the maternal grandmother had such a benign view of the father. It would be hard not to dislike someone who you thought had violated your granddaughter.
Witness 2 was the wife of one of the mother’s brothers and has known the mother for more than 21 years. She was influential in the mother retaining her solicitor in these proceedings. In her affidavit, Witness 2 made no pretence at offering a balanced assessment of the father. She said that the text of her affidavit came from her but that some material had been removed, presumably at the suggestion of the mother’s solicitor. Even on the edited version, she has a jaundiced view of the father for reasons unrelated to the issues before me (rudeness; a perceived preference for a son when L was born; the failure to repay an alleged $5,000 debt). In those circumstances there is a heightened risk that her advocacy for the mother’s cause may have impacted on her reported observations of L.
Witness 3 is the sister of the maternal grandmother and is a health care worker of many years standing. She swore an affidavit in the earlier proceedings and at that time believed it was possible that the father sexually abused L. She went on to say there was “a question mark” (as to whether that occurred). As to whether she believes that now, Witness 3 said that she was “more concerned now than then”. Having said that there was no real challenge to her credit. The mother lives with Witness 3 and therefore her views are important because of the influence they may have or may have had, over the mother.
Ms B gave evidence as the single expert and her credit is not in issue.
The issues
I asked learned counsel to prepare a list of issues at the commencement of the hearing. None was forthcoming. It might be that counsel felt that there were only a few issues and they are obvious or that some issues would fall away during the trial. The key issues that seem to arise for determination are:
1.Is there an unacceptable risk of L being psychologically or emotionally abused by the mother or in her household;
2.If so, would a change of residence and restrictions on the mother’s time with L, ameliorate those risks and be otherwise in her best interest.
background evidence
The parties commenced a relationship in October 2003. The mother fell pregnant and although against the advice of her parents, the parties were married in January 2005.
L was born in May 2005.
The parties separated in September 2006.
On 7 October 2006 the father reported the child missing.
In October the parties negotiated a private agreement whereby L would spend graduated time with the father up to four hours each week until April 2007.
The mother says that on 16 January 2007 she first became alarmed by L’s behaviour. The mother says that after spending 6 hours with the father the child tightly held her legs together and cried and was very distressed. The child touched her genital area and said “no, no, no” and “daddy touched poo poo”. The mother says that the child then inserted her fingers in her anal area.
The mother says that over the period from January to May 2007 the child’s behaviour changed after visits with the father. The mother says that the child became more aggressive and fearful during nappy changes and made statements to the mother which indicated that she had been inappropriately touched by the father.
The mother says that on 3 February 2007 after a 6 hour visit with the father the child again tightly held her legs together and said “daddy poo poo here” and put her fingers around and in her anus.
On 30 March 2007 Dr S of Hospital 1 examined the child’s genital area and apparently found it to be normal. He issued a statement on 2 April 2007. The mother says that Dr S encouraged her to keep a diary of disturbing behaviour by the child.
On 8 April the mother reported that the child said “nice” as she made licking gestures with her mouth and had her fingers in her genital area and said “daddy here”.
On 16 April 2007 the Department of Child Safety recorded a child concern report.
The mother says that on 22 April 2007 the child’s nappy had not been changed during a visit but at the first change of the following day the child said “daddy poo poo here” and put her fingers on her clitoris and said “put it here”.
In May 2007 the mother stopped the child spending unsupervised time with the father. The mother applied for a Domestic Violence Order alleging that since separation the father had harassed and verbally abused her through text and telephone messages.
On 8 May 2007 the father applied to the Federal Magistrates Court for parenting orders.
On 7 June 2007, with the father’s consent, a DVO was made against the father for a period of one year.
On 28 June 2007 orders were made by the Federal Magistrates Court for the father to have time with L supervised at the Contact Centre 2, appointing an ICL and transferring the matter to this Court.
On 29 June 2007, although the child had not seen the father in person for about 4 weeks, the mother stopped contact again. The mother says that the child was touching her bottom and made licking noises and said “daddy poo poo here”. The mother attributed this behaviour to the fact that the child might have seen pictures of the father on a computer.
On 25 July 2007 the father made a general enquiry of the Department of Child Safety.
On 17 September 2007, after about four months without time spent between the father and L, the mother says that the child took off her nappy and put her fingers up her anus. The child said “Daddy, my daddy. Go away mummy.”
On 18 September 2007 the parties, the child and the maternal grandparents attended on the legal aid Social Worker, Ms D in connection with an order for a Family Report.
The mother says that on 26 September 2007 the child put her fingers in her vagina and told the mother to “eat it”. The mother reported that the child said “go to daddy. Go away mummy.”
The mother says that on 30 September 2007 the child said to her “don’t touch my botty.” The mother asked who touches her “botty” and the mother says that L responded “daddy touches my botty. Daddy did it.”
On 5 October 2007 Ms D’s report issued. Ms D opined that there were no concerns about the mother’s parenting capacity, and that was where her strongest attachment was. She thought that the probability of risk with the father was low and that there was no evidence of there being a problem with his current use of intoxicating substances. She recommended that the child live with the mother and have day only time with the father with handovers at a contact centre.
The mother says that after the first supervised visit at the Contact Centre the child said that she “played play-doh with daddy but he didn’t touch my botty.”
The mother says that on 21 October 2007 the child pulled her vagina lips to the side and touched her clitoris and fondled it saying “bite it. Daddy bit it. Have you got a bottom? Let me see it.”
The mother says that on 5 November 2007, two days after a supervised visit, the mother asked the child “Why are you touching your botty” and the child said “daddy does.”
On 13 November 2007 an order was made for the preparation of a Family Report.
On 19 November 2007 the mother says she asked the child “has anyone ever touched you in a way you didn’t like?” and the child replied, in an embarrassed manner, “yeah, daddy did.”
On 7 January 2008 the parties and child were interviewed by Family Consultant, Ms B.
On 31 January 2008 after the first day of the Less Adversarial Trial, Murphy J ordered that the mother have sole parental responsibility for the child and that the child spend time with the father for between 2 and 4 hours each Saturday at Contact Centre 2.
Interviews for the Family Report were conducted in April and May 2008 and the report was published on 15 July 2008. Ms B thought that there was a very high likelihood that sexual abuse by the father did not occur. She recommended that the parties share parental responsibility, that L continue to live with her mother and that the father’s time be unsupervised and progress to overnight after 3 months.
The trial commenced before Murphy J on 18 August 2008 and on 19 August 2008, his Honour made orders in terms consented to by the parties as follows:
1.Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.
IT IS ORDERED THAT
2.All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.
3.All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
4.The Independent Children's Lawyer be discharged.
5.Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders
NOTATION
A. Agreement has been reached by the parties with the assistance of their respective legal representatives, the Independent Children’s Lawyer and Counsel for the Independent Children’s Lawyer.
B. Agreement has been reached at the end of the second day of trial after each of the parties were cross-examined.
C. Agreement has been reached in circumstances where the parties and the Court have had the benefit of a family report by [Ms D] dated 5 October 2007 and a subsequent report by [Ms B], family consultant, dated 15 July 2008.
D. The minutes of consent make provision for the parties to have equal shared parental responsibility and in those circumstances it is necessary to consider the provisions of s 65DAA of the Act. It is noted that the Court has considered the terms of that section and in light of the evidence adduced during the proceedings before the Court and the matters contained in the respective reports to which reference has just been made the times provided for in the orders, for [L] to be cared for by each of the parents, is in her best interests.
By the Court
(Signed P Murphy)
The Honourable Justice Murphy
MINUTES OF CONSENT
BY CONSENT AND BY WAY OF FINAL ORDER:-
1.That the parties have equal shared parental responsibility for the long term care, welfare and development of the child.
2.That the mother make decisions about the day to day care, welfare and development for the child whilst in her care.
3.That the father make decisions about the day to day care, welfare and development for the child whilst in his care.
4.That the child [L], born […] May 2005, live with the mother.
5.That unless otherwise agreed by the parties the child shall spend time and communicate with the father as follows:
(a)Commencing Saturday 23 August 2008 from 9am to 5pm and each Saturday thereafter until (c) below;
(b)Commencing Tuesday 26 August 2008 from 9am to 5pm and each Tuesday thereafter until (d) below;
(c)Commencing Friday 21 November 2008 from 5pm until 5pm on Saturday 22 November 2008 and each Friday thereafter until (e) below;
(d)Commencing Monday 24 November 2008 from 5pm until 5pm on Tuesday 25 November 2008 and each Monday thereafter until (f) below;
(e)Commencing Friday 6 March 2009 from 5pm Friday until 5pm Sunday 8 March 2009 and each alternate weekend thereafter;
(f)Commencing Wednesday 1 April 2009 from 9am Wednesday until 5pm Thursday and each Wednesday thereafter until the child commences prep;
(g)Once the child commences prep for half of each of the school holidays for the first half in odd years and the second half in even years;
(h)Subject to 5(g) commencing Christmas 2008, from 2pm Christmas Eve to 2pm Christmas Day and alternately thereafter;
(i)In years when the child spends time with the father in the first half of the school holiday periods the child will spend time with the father on the first weekend following the school holidays and alternate weekends thereafter;
(j)In years where the child spends time with the father IN the second half of the school holiday periods the child will spend time with the father on the second weekend following the school holidays and alternate weekends thereafter.
6.That for the purposes of changeover the mother will deliver the child to [Location 1] at [Brisbane Suburb 1] and the father will return the child to that location.
7.In the case of a medical emergency the parent who has the care of the child must immediately inform the other of the emergency.
8.Each parent must keep the other advised of their current land line and mobile phone numbers and their residential address and shall advise the other of any change in writing within 3 days of any change with both parties to provide the aforesaid details in writing to the other within 3 days of the date of these Orders.
9.That other than in the case of an emergency whereupon the parties would use the fastest means of communication possible the parties will communicate by communication book to be exchanged on each changeover with such communications to be confined to the issue of the welfare of the child.
10.That in the event of Mothers Day or Fathers Day the child will spend time with the relevant parent from 9am to 5pm if not otherwise in that parents care.
11.That in the event of the Mother’s birthday on […] and the Father’s Birthday on […] the child will spend time with the relevant parent from 9am to 5pm if the birthday falls on a weekend and from 4pm to 6pm if their birthday falls on a prep or school day if not otherwise in that parents care.
12.On the occasion of the child’s birthday the child will spend time from 2pm till 6pm with the parent with whom she is not currently spending time.
13.That upon the child commencing school, and in the event the father resides within a 20km radius of the school, the father shall spend time with the child:
(a)from after school Friday to before school Monday, or Tuesday if a public holiday, each alternate weekend; and
(b)in the off week from after school Tuesday until before school Thursday and each alternate week thereafter.
14.That upon the father giving the mother 28 days notice in writing the father shall spend time with the child for a period of seven consecutive nights in the period 1 June 2009 to 23 December 2009.
15.That both parties be at liberty to telephone the child twice weekly when the child is not in their care.
16.That neither party shall denigrate, nor allow another person to denigrate the other party in the presence of the child.
The mother says variously:
·“Given the uncertainty as to whether abuse had occurred or not, I accepted the recommendations of my solicitor to enter into consent orders with the applicant father”[3]
·“19.08.2008 I did not abandon allegations, but consented to orders under protest, and upon advice there was insufficient evidence as [L] was only three years old.”[4]
[3] Para 6 mother’s affidavit sworn 5 April 2011
[4] Para 41 mother’s affidavit sworn 8 April 2011
Naturally, there is no indication in the extensive notations made with the orders, of any qualification to the mother’s consent.
The effect of answers the mother gave in cross-examination before me, is that despite her doubts, from the date of the orders she thereafter accepted that she might be wrong about the father and no longer harboured fears for the child in his care.
The father says that on 30 August 2008 the mother apologised for making false allegations of sexual abuse. The mother denies this. She says that she (only) tried to seek an improved relationship with the father, for L’s sake.
The father alleges that he suggested that he spend more time with the child and that the mother refused saying she would lose Centrelink benefits if he had one more day with the child. The mother denies having any concern about Centrelink payments but says she was concerned about disturbing behaviour being displayed by L.
The father says that on 21 October 2009 the parties agreed to the father having four nights in each alternate week and two days in the intervening weeks and to the child commencing school in 2011. The mother says that she did not want to change the existing orders. I am not quite sure what that means.
On 21 November 2009 the child had the first overnight with the father.
The father says that on 1 December 2009 the mother gave him a letter in which she asks him to forgive her for the trial and sexual abuse allegations. The mother says she did not apologise.
The father says that on 2 January 2010 the maternal grandmother sent him a letter in which she asked him to forgive her for the trial and sexual abuse allegations. The mother says that the intent of the letter was to improve relations between the father and the grandmother, for the sake of the child.
On 21 January 2010 the father stopped living with his parents and relocated to Brisbane Suburb 2.
The father says that in early March 2010 the mother told him she didn’t require any further child support. The mother says she was told about arrears of child support and waived the arrears on the basis that payments would resume from that time.
On 11 March 2010 the parties decided to send the child to School 1. They enrolled her to commence in 2011.
The mother says that on 12 March 2010 she saw the child rubbing up and down with her fingers on her clitoris. The mother says she gently asked L: “What are you doing [L]?” and that L said “It feels nice.” She asked “Why are you doing that sweety?” and L said “Don’t tell dad or anyone mummy.” and “Dad tells me to do it and he does it to me too.” The mother said that L said “I don’t like it but dad does it anyway. I have no undies on.”
In cross-examination the mother was asked about what she saw L do, and demonstrated with a rubbing motion of two fingers held straight and together.
The mother says that she told her mother what L said and that her mother said words to the effect “keep an eye on it.”
The mother says:[5] that on 7 April 2010, after spending 5 days with the father over Easter (errors not marked):
“19. On 7 April 2010, [L] came back after spending five days with the applicant father over Easter. She was clingy and wanted to be carried the entire day. She would start crying and screaming when left alone. In extreme cases she would pound her clenched hands or pull at her hair really hard. This was not her usual for [L] she was clearly very disturbed and traumatised about something.
Throughout May and June 2010, almost on every occasion where [L] has to be spend time with her father’s she pleads and complains to me that she doesn’t want to go. On 30 June 2010, she was again being difficult and didn’t want to cooperate to go to her father’s and she displayed her disturbed behaviour by screaming; pulling at her face; clenching her hands and feet. I noticed that occurrences of this behaviour had been increasing.”
[5] Para 19 mother’s affidavit sworn 5 April 2011
In early May 2010 the mother and her extended family moved homes. Thereafter the child lived with the mother, maternal grandparents, the maternal uncle and maternal grandmother’s sister. The child had her own bed in the mother’s bedroom. The mother says this was a temporary arrangement in advance of the maternal grandparents moving to Melbourne.
The father says that on 28 May 2010 the child told him that the mother and child did not have separate beds and slept together. This issue was raised with the mother by Queensland Police on 8 July 2010 and she conceded at that time that the child was sleeping with her.
The father says that the child also said that the maternal uncle sleeps in the mother’s bed and “huggies me too tight”. The father says that on hearing of that report, the mother told him that the uncle only comes in for a while and then leaves. The mother says that L said her father told her to say that her uncle slept with her. The mother says that her brother never slept in her bed or in L’s bed.
The father says that on 10 June 2010 the mother agreed without hesitation to his proposal to take the child on a family cruise for a week in September 2010. The mother agrees but says that was before L made the serious disclosures about the father.
The father says that on 17 June 2010 he proposed week about time and that the mother told him that she and her family wanted to move to Melbourne.
The father says that the parties discussed the Melbourne move until 1 July 2010 and that he told her he would not agree. The mother says she never planned to move to Melbourne permanently but agrees that the father said to her that he wanted 50% care and that she could not move to Melbourne. The mother’s evidence on this issue is misleading. I am satisfied that she had a proposal to move to Melbourne indefinitely.
On 1 July 2010 the mother says she approached the father about the child’s disturbed behaviour.
The maternal grandmother says that on 2 July 2010 L exhibited angry behaviour and used clenched fists. She says that L repeated “Don’t you say that” and “I’m scared of my dad.” She says that L told her “don’t tell mummy, don’t say anything to mummy.” and seemed frightened that her mother would know about it. She says that L said “daddy tickles my botty” pointed to her vagina and moved her fingers rapidly to show me how he tickled her vagina. She says that L then sheepishly said “he puts that thing of his (pointing to her vagina) into my mouth and makes me move my tongue.” She says that L showed her tongue making rapid movements and said cringingly “he puts his bum in my face, it’s disgusting”.
On 4 July 2010 the mother took the child to meet Police Officer, Detective J of the Child Protection Unit.
On 7 July 2010 the mother took the child to see Dr S at Hospital 1. L had a further interview with Detective J.
The records of the Queensland Police[6] reveal that as at about 7 July 2010 the only thing preventing a prosecution of the father was the inability of the child to particularise the date and place and details of the events.
[6] Exhibit bundle – Exhibit 1 - QLD Police Page 6 of 27 of a report printed on 22 October 2010
On 8 July 2010 Ms V from the Department of Child Safety visited the mother’s home and the mother was told that L told Ms V that she did not feel safe with the father. On 8 July 2010 the father was interviewed for 2 hours by the Town 2 police in respect of various sexual allegations regarding the child. The mother says that L told her that she did not want to go with the father, but wiped away the tears, composed herself and later went with him
As to what is in the child’s best interests, I refer to the findings made in respect of the s 60CC matters. In particular I refer to the findings as to the primary considerations and (b), (c), (d), (e), (f), (g), (h), (i), (l) & (m).
As to whether equal time would be reasonably practicable there are the considerations referred to in s 65DAA(5). The parents live about 100 kilometres apart from each other. The mother has no proposal to move. The father will move but as far as I am aware, that will be in the Brisbane Suburb 2 area. In my view that would make an equal time arrangement very difficult.
As to the parents' current and future capacity to implement an arrangement for the child spending equal time with each of them, at times the parents have been able to cooperate. At other times there has been a significant level of mistrust. They have not tried to implement an equal time arrangement since separation.
As to the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind: Although she has affectively determined all relevant arrangements for the last few years, the mother complains that in the past, perhaps only when they were together, that the father exhibited controlling behaviour. The section specifically notes that there is power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services. I do propose to make such orders, on the basis of a course or courses identified and settled by the ICL and Ms B.
As to the impact that an arrangement of that kind would have on the child. There has never been such an arrangement and therefore it is hard to know what the impact would be.
As to other matters the court considers relevant, these are civil proceedings and neither of the parents, nor the child’s representative seek an order for equal time. Given the difficulties of enforcing the positive obligations of parenting, the fact that such an order is not sought by anyone could make it impracticable.
I do not intend to make an order for equal time.
Therefore, I must decide if living for substantial and significant time with each of her parents would be in L’s best interests and whether it would be reasonably practicable. It is only where both questions are answered in the affirmative that consideration may be given to the making of such an order.[15]
[15] See MRR & GR [2010] 240 CLR 461
As to what is in the child’s best interests, there are the findings made above in respect of the s 60CC matters. As to whether substantial and significant time would be reasonably practicable there are the considerations referred to in s 65DAA(5) above save that the distance between the parent’s residences would not prevent L living for substantial and significant periods with each parent. The impact on travel for the child of such an arrangement would be manageable where for the preponderance of school days the child travelled to school and returned home to a residence close to the school.
Only the competing proposals made on behalf of the mother and the child would fall within the definition of substantial and significant time. Both proposals include time for each parent that falls on weekend days and holidays and time that does not. In my view those proposals will allow each parent to be involved in L’s daily routine and occasions and events that are of particular significance to her. She can be involved in occasions and events that are of special significance to the parents. However, the father’s proposals do not involve the child spending time with the mother during weekdays save for school holiday time and then only after L turns 7 years of age. Therefore the father does not propose substantial and significant time.
conclusion
The remaining issue is whether there should be a change of primary residence and if there is, whether L should spend substantial and significant time with the mother. The mother seeks the retention of the regime fixed by the orders of 19 August 2008 and the father and the ICL seek that the child live predominantly with the father and that there be a suspension of time with the mother for a period, followed by a graduating regime. The ICL seeks that there be oversight under section 65L by the Family Consultant.
The single expert proposed orders as now sought on behalf of the mother but conceded that she was uneasy about that recommendation.
At the heart of the matter I am not satisfied that the mother deliberately contrived at false allegations of sexual abuse against the father. That leaves open that she did so carelessly or without regard to the consequences. The thrust of the father’s case is to remove the child from the “toxic environment” of the mother’s household. However, under his proposals the child would be exposed to that environment, albeit for less time than in the past. The father’s proposals are not well identified and there is little evidence about the impact on the child of a temporary separation from the mother and then a significant reduction in the time spent between her the child. It is likely that the mother has been L’s primary attachment figure for all of her young life.
Like the Family Consultant I am uneasy about making no significant change to the formal regime settled by the parties in 2008. It may be justifiably said by the father that to do nothing is a triumph of hope over experience. What will prevent a repetition of the events of 2007/2008 and 2010/2011? Some things are different. L is getting older and will be an increasingly reliable reporter of things said and done to her. She now goes to school. Therefore, during school term, she is seen for several hours each day, five days a week, by adults who are not connected to either parent. Her teachers and the school counsellors are likely to be experienced in dealing with young children. To some extent they should be able to filter out normal behaviours from those that require further investigation. L will have the moderating influence of many children of a similar age.
Obviously there are merits in the cases argued on behalf of the father and the child. However, in my view the balance falls in favour of retaining the basic structure of the arrangement that the parties asked the Court to put in place on 19 August 2008.
I will allow the parties to restore the matter before me within 21 days the date of delivery of judgment as to the form of the orders. Rather than making amendments to the 2008 orders I would prefer to set out the new regime in one document. I will generally remake the terms of the orders of 19 August 2008 but without the transitional provisions. I will vary the times in accordance with the agreement reached between the parties on 13 May 2011 assuming that those times better reflect the needs of the child and the practical circumstances of 2011. I will make similar orders for special days, but have sought to avoid complicating school days for the birthdays of the father and of the child. It should not be impossible for those events to be celebrated at a date close to the event. The mother’s birthday falls in school holidays. As invited by the ICL, I will order that the parties attend parenting courses and will provide for a level of assistance to the parties pursuant to section 65L, for 6 months. In the latter regard I am mindful of the resource implications of such an order but it would unambiguously be in L’s best interests if the events of 2007/2008 and 2010/2011 are not repeated. Something has to change. As I said to the parties during the course of submissions, the Court cannot be the head of L’s family. Neither can an officer of the Court such as a Family Consultant. Nevertheless, if the parties can call on a Family Consultant for assistance in relation to courses or further advice, at least for the initial period after these proceedings that may avoid the problems of the past. For the same reason, to ensure that the parties undertake the course or courses to which they are referred and because it is an order sought on behalf of the ICL, I will continue the appointment of the ICL for a similar period.
The ICL seeks orders that the child too be counselled. Given that the child has been interviewed, examined and interrogated on too many occasions I am reluctant to make an order that requires or supports yet another intervention. There is no probative evidence that the child has suffered psychological or psychiatric damage as a result of the things said to her. The evidence given by the parents in these proceedings is that they do not believe that L was sexually abused by the father. Perhaps in those circumstances L will be able to return to the normal concerns of a young child and no further intervention will be necessary. Of course, the parents are free to jointly make what arrangements they consider or they are advised, will promote L’s best interests. That might include counselling in the future.
I certify that the preceding two hundred and fifty six (256) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan dated 25 May 2011.
Associate:
Date: 25 May 2011
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