FULTON & DANIEL

[2016] FamCA 941

FAMILY COURT OF AUSTRALIA

FULTON & DANIEL [2016] FamCA 941

FAMILY LAW – CHILDREN – Where the mother makes sexual abuse allegations against the father and paternal grandmother – Where there is found to be no unacceptable risk of harm to the child – Where the mother has been diagnosed with a personality disorder with borderline and dependent traits – Where the father is to have sole parental responsibility in relation to health and education and the mother is to have sole parental responsibility in relation to religion – Where the child is to live with the father and spend increasing time with the mother.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother makes an oral application to vary interim orders after retaining the child – Where the mother’s application is dismissed – Where the mother makes an oral application to reopen the final hearing to lead further evidence – Where the mother’s application is dismissed – Where the mother’s time with the child is suspended until further order – Where the mother is ordered to return the child to the father. 

Family Law Act 1975 (Cth)

Reid v Brett [2005] VSC 1

APPLICANT: Ms Fulton

RESPONDENT: Mr Daniel

INDEPENDENT CHILDREN’S LAWYER: Ms Luke

FILE NUMBER: WOC 380 of 2014

DATE DELIVERED: 26 October 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE:

7 - 11 March 2016

12 October 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

COUNSEL FOR THE RESPONDENT: Ms Neville

SOLICITOR FOR THE RESPONDENT: Aboriginal Legal Service

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Reynolds

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Lukes Law

Orders

1. The father have sole parental responsibility for major long term decisions about education, health and Aboriginal cultural upbringing for the child B born … 2011 (“the child”) on the condition that:

   1.1.The father will contact the mother in writing and provide his views about any such issue;

   1.2.The father shall consult with the mother with regard to any such issue;

   1.3.The father and mother will make a genuine effort to come to a joint decision about any such issue;

   1.4.If no agreement is reached between the parties, then within 14 days the father shall make the final decision and advise the mother in writing of the decision about any such issue.

2. The mother have sole parental responsibility for major decisions about religious upbringing for the child on the condition that:

   2.1.The mother will contact the father in writing and provide her views about any such issue;

   2.2.The mother shall consult with the father with regard to any such issue;

   2.3.The mother and father will make a genuine effort to come to a joint decision about any such issue;

   2.4.If no agreement is reached between the parties, then within 14 days the mother shall make the final decision and advise the father in writing of the decision about any such issue.

3. Neither party change the child’s name without the consent of the other.

4. The father not change the child’s living arrangements to make it significantly more difficult for the child to spend time with the mother.

5. The child live with the father at all times that he is not spending time with the mother and also:

   5.1.From 4pm on Christmas Eve until 3pm on Christmas day in odd numbered years;

   5.2.From 4pm on Christmas day until 3pm on Boxing day in even numbered years;

   5.3.For 3 hours on the child’s birthday and the father’s birthday, if the child is not otherwise living with the father on those days; and

   5.4.From 5pm the day before Father’s day until 6pm on Father’s day.

6. The child is to spend time with the mother as follows:

   6.1.During 2016 from 8.30am until 6pm each Sunday, and from 9am to 6pm each Wednesday;

   6.2.From the commencement of term one in 2017, from 8.30am Sunday until the commencement of school on Monday each weekend;

   6.3.From the commencement of term two in 2017, during the school term from 10am Saturday until the commencement of school on Monday each alternate weekend;

   6.4.From the commencement of term three in 2017, during the school term from after school on Friday until the commencement of school on Monday each alternate weekend;

   6.5.During the June/July 2017 school holidays and thereafter, for one week in each short school holiday period, and for two, one week blocks in each Christmas holiday period;

   6.6.From 4pm on Christmas Eve until 3pm on Christmas day in even numbered years;

   6.7.From 4pm on Christmas day until 3pm on Boxing day in odd numbered years;

   6.8.For 3 hours on the child’s birthday and the mother’s birthday;

   6.9.From 5pm the day before Mother’s day until 6pm on Mother’s day; and
   such other day as agreed in writing.

   6.10.Such other time as reasonably requested in writing on a minimum of one weeks’ notice and which is agreed to in writing.

7. The mother’s time in order 6 is to be monitored until the completion of term 1 2017 by one of the following people:

   7.1.the maternal grandmother, Ms C Daniel

   7.2.the maternal grandfather, Ms D Daniel

   7.3.the maternal aunt, Ms E

   7.4.the maternal aunt, Ms F

   7.5.Ms G

   7.6.Rev. H

   on the condition they have given the father an assurance in writing that if the mother appears mentally unstable or affected by drugs or alcohol then the monitor shall remove the child from the mother’s care and contact the father to arrange the child’s return to the father’s care.

8. For the purpose of monitoring the mother’s time, in accordance with Order 7, the mother is to ensure that at least one of the monitors sees her in person during each period that she spends time with the child.

9. Changeover is to occur at the child’s school or preschool, and at the mother’s Church on Sunday mornings, and otherwise by the father delivering the child to the mother at the commencement of time and the mother returning the child to the father at the conclusion of time.

10. Except in the case of an emergency, the mother is not to take the child to a doctor unless she has the father’s written permission and only to a doctor or medical service authorised by the father.

11. Both parties are to continue to engage with their current therapists, Ms I’s and Ms J, or if they are unavailable with such other therapists as recommended by such therapists.

12. Within 14 days each party is to attend upon their general practitioner for review of their current medication and discuss with their general practitioner the medication that they are taking and any concerns about the level of their medication and dependence upon prescription medication.

13. The parties are to do all things and sign all such consents or documents necessary, so as to engage with Family Services Suburb K and will continue to engage with Family Services Suburb K or such other services recommended by them, for such time as deemed necessary by the Service.

14. The parties are to do all things necessary to engage with the Kids Count program and ensure that the child attends also as directed by that organisation, for assistance with co-operative parenting of the child and management of his behaviour generally.

15. Neither party is to denigrate the other party or their extended family or household members, to or in the presence of the child, and shall use their best endeavours to prevent any other person doing so.

16. The parties are restrained from consuming any alcohol while the child is in their care and for 24 hours prior to the child coming into their care.

17. The parties are restrained from consuming prescription medication that is not prescribed for them, and shall only consume prescription medication or any medication in accordance with the dosage prescribed for them or otherwise written on the packet.

18. Both parents are to ensure the child is not exposed to cigarette smoke or an environment where persons are smoking inside or near the child.

19. The father is to facilitate the child communicating with the mother by telephone every Tuesday and Friday during 2016, and every Tuesday and Thursday during 2017 and thereafter, at a time agreed between the parents, and failing agreement, at 5.30pm, and the father is to ensure the child has a phone available to accept the call and that the child anticipates the call. The father is not to have the television on during the time the child is speaking to the mother.

20. The father is to ensure that the child is able to telephone the mother at such other reasonable times as the child requests to do so.

21. Each parent shall ensure that the other parent is notified as soon as practicable of:

    21.1.any admission of the child to hospital;

    21.2.any medical emergency involving the child; 

    21.3.any diagnosis of the child with a serious condition or illness that will require ongoing specialist treatment or care;

    21.4.any medication which is prescribed for the child;

    21.5.any specialist medical appointments which are arranged for the child and provide details of same.

22. The father shall advise the mother of the names and contact details of all of the child’s treating medical practitioners and specialists and authorise such medical practitioners to give the mother information about the child’s treatment.

23. The father shall ensure the child continues at L Care Centre, until completion of preschool in 2016.

24. These Orders authorise any school or preschool which the child attends from time to time to provide both the mother and the father with copies of all reports, circulars, notices and documents in relation to the child including copies of all school reports, reports on school progress and behavioural issues and notices received in relation to functions, parent teacher nights and like activities to which parents are invited as well as any and all information which may be sought from time to time by the mother and/or the father in relation to the child.

25. Both parents are entitled to attend functions, parent teacher nights and like activities to which parents are invited.

26. The parents are to notify each other of any change in telephone contact numbers, such notification to be made in writing and within three (3) days of the change.

27. The parents are to notify each other of any proposed change to their place of residence, such notification to be made in writing and no less than fourteen (14) days prior to the proposed change.

28. The mother and the father shall:

    28.1.be restrained from:

    28.1.1.discussing these proceedings in the hearing of or presence of the child;

    28.1.2.speaking about or making any post to social media concerning the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the child;

    28.2.take all reasonable steps to prevent any other person:

    28.2.1.discussing these proceedings in the hearing of or presence of the child;

    28.2.2.speaking about or making any post to social media concerning the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the child.

29. The ICL is to forward to Ms I and Ms J a copy of the orders and reasons.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: WOC 380 of 2014

Ms Fulton

Applicant

And

Mr Daniel

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. These proceedings are about what parenting orders should be made in respect of the parties’ child, B (“the child”), born in 2011 aged 5 years.

APPLICATIONS

1. Both the father and mother agree that an order for equal shared parental responsibility should not be made. I accept that that is an appropriate decision given the level of communication that currently exists between the parents. Each parent respectively seeks sole parental responsibility.

Orders sought by the Independent Children’s Lawyer

1. The Independent Children’s Lawyer (“ICL”) sought the following orders (Exhibit 27):

   1. That the Father have sole parental responsibility for the child [B] born … (“[the child]”).

   2. The father is to consult with the mother prior to making any decision regarding [the child’s] long term care welfare and development.

   3. That the child live with the Father at all times that he is not spending time with the Mother and also:

   a. From 3pm on Christmas Eve until 3pm on Christmas day in odd numbered years.

   b. From 3pm on Christmas day until 3pm on boxing day in even numbered years.

   c. For 3 hours on the child’s birthday and the father’s birthday, if the child is not otherwise living with the father those days.

   d. From 5pm the day before Father’s day until 6pm on Father’s day.

   4.          [The child] is to spend time with the mother as follows:

   a. During 2016 from 9am until 6pm each Sunday, and from 9am to 6pm each Wednesday.

   b. From commencement of term one in 2017, from 8am Sunday until the commencement of school on Monday each weekend.

   c. From commencement of term two in 2017, during the school term from 10am Saturday until the commencement of school on Monday each alternate weekend.

   d. From commencement of term four in 2017, during the school term from after school on Friday until the commencement of school on Monday each alternate weekend.

   e. From commencement of term one in 2018, during the school term from after school on Friday until the commencement of school on Monday each alternate weekend.

   f. During the June/July 2017 school holidays and thereafter, for one week in each short school holiday period, and for two, one week blocks in each Christmas holiday period.

   g. From 3pm on Christmas Eve until 3pm on Christmas day in even numbered years.

   h. From 3pm on Christmas day until 3pm on boxing day in odd numbered years.

   i. For 3 hours on the child’s birthday and the mother’s birthday.

   j. From 5pm the day before Mother’s day until 6pm on Mother’s day.

   k. such other day as agreed in writing.

   5. The mother’s time in order 4 is to be monitored for a period of 2 months from the date of these orders in accordance with orders 6 and 7 by one of the following people:

   a)the maternal grandmother, [Ms C Daniel]

   b) the maternal grandfather, [Ms D Daniel]

   c) the maternal aunt, [Ms E]

   d) the maternal aunt, [Ms F]

   e) [Ms G]

   6. For the purpose of monitoring the mother’s time, the mother is to ensure that at least one of the monitors sees her in person during each period that she spends time with [the child].

   7. That the court accept undertakings from the monitors that if the mother appears mentally unstable or affected by drugs or alcohol then the monitor shall remove the child from the mother’s care and contact the father to arrange the child’s return to the father’s care.

   8. Changeover is to occur at the child’s school or preschool, and at the mother’s Church on Sunday mornings, and otherwise by the father delivering the child to the mother at the commencement of time and the mother returning the child to the father at the conclusion of time.

   9. The parties are to ensure when a visit to a General Practitioner is required the child only attends on the AMS medical service, or such other medical Service as agreed, except in the case of an emergency and the AMS medical service are not available.

   10. Both parties are to continue to engage with their current therapists, [Ms I] and [Ms J], or if they are unavailable with such other therapists as recommended by such therapists.

   11. That within 14 days each party is to attend upon their general practitioner for review of their current medication and discuss with their general practitioner the medication that they are taking and any concerns about the level of their medication and dependence upon prescription medication.

   12. The Parties are to do all things and sign all such consents or documents necessary, so as to engage with Family Services [Suburb K] and will continue to engage with Family Services [Suburb K] or such other services recommended by them, for such time as deemed necessary by the Service.

   13. The parties are to do all things necessary to engage with the Kids Count program and ensure that the child attends also as directed by that organisation, for assistance with co-operative parenting of the child and management of his behaviour generally.

   14. Neither party is to denigrate the other party or their extended family or household members, to or in the presence of the child, and shall use their best endeavours to prevent any other person doing so.

   15. The parties are restrained from consuming any alcohol while the child is in their care and for 24 hours prior to the child coming into their care.

   16. That the parties are restrained from consuming prescription medication that is not prescribed for them, and shall only consume prescription medication or any medication in accordance with the dosage prescribed for them or otherwise written on the packet.

   17. Both parents are to ensure the child is not exposed to cigarette smoke or an environment where persons are smoking inside or near the child.

   18. The father is to facilitate the child communicating with the Mother by telephone every Tuesday and Friday during 2016, and every Tuesday and Thursday during 2017 and thereafter, at a time agreed between the parents, and failing agreement, at 6pm, and the father is to ensure the child has a phone available to accept the call.

   19. The father is to ensure that the child is able to telephone the Mother at such other reasonable times as the child requests to do so.

   20. Each parent shall ensure that the other parent is notified as soon as practicable of:

   (a) any admission of the child to hospital;

   (b)  any medical emergency involving the child; 

   (c)  any diagnosis of the child with a serious condition or illness that will require ongoing specialist treatment or care.

   d) any medication which is prescribed for the child

   e) any specialist medical appointments which are arranged for the child and provide details of same.

   21. The father shall advise the mother of the names and contact details of all of the child’s treating medical practitioners and specialists and authorise such medical practitioners to give the mother information about the child’s treatment.

   22. The Father shall ensure the child continues at [L] Care Centre, and shall notify the Mother of his proposed school for the child 3 months before any enrolment and shall take into account the mother’s view as to choice of school for the child.

   23. These Orders authorise any school or preschool which the child attends from time to time to provide both the Mother and the Father with copies of all reports, circulars, notices and documents in relation to the child including copies of all school reports, reports on school progress and behavioural issues and notices received in relation to functions, parent teacher nights and like activities to which parents are invited as well as any and all information which may be sought from time to time by the Mother and/or the Father in relation to the child.

   24. The parents are to notify each other of any change in telephone contact numbers, such notification to be made in writing and within three (3) days of the change.

   25. The parents are to notify each other of any proposed change to their place of residence, such notification to be made in writing and no less than fourteen (14) days prior to the proposed change.

   26. The Mother and the Father shall:

   (a) be restrained from:

   (i)     discussing these proceedings in the hearing of or presence of the child;

   (ii)    speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the child;

   (b) take all reasonable steps to prevent any other person:

   (i)     discussing these proceedings in the hearing of or presence of the child;

   (ii)    speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the child.

Orders sought by the Mother

1. The mother sought an order for sole parental responsibility but in the alternative sole parental responsibility in relation to health and religion. She also sought an order that the father be unable to relocate with the child.

2. The mother sought an order that the child ordinarily live with her. However, if the child did not ordinarily live with her, the mother sought the following:

   5.1.Until the child commences school, from 8:30am Sunday morning with the mother to pick the child up from the father’s residence until 1pm on Wednesday each week with the father to collect the child from the M Cafe.

   5.2.Upon the child commencing school, the mother is to collect the child from school on a Friday afternoon and drop him back at school on Monday morning each fortnight with the child to spend an additional night with the mother during the other week.

   5.3.During school holidays:

   5.3.1.For a one block period of five nights in the shorter NSW school holidays following Term 1, 2 and 3;

   5.3.2.For two separate block periods of five nights in the NSW school holiday period following Term 4;

   5.3.3.At other times as agreed.

   5.4.From 4pm Christmas Eve until 4pm Christmas Day on even years commencing December 2016.

   5.5.For three hours on the child’s birthday if it falls on a school day and four hours if it does not fall on a school day. The mother is to spend time with the child from the eve of his birthday (14 May) until the morning of his birthday when she would drop him to school in even numbered years.

   5.6.The child to spend time with the father on Father’s Day in alternate years with the child to spend the other years with the maternal grandfather.

   5.7.In the event that the child requires a doctor on the weekends, he is to attend N Medical Centre.

3. The mother otherwise agreed with the following orders proposed by the ICL: 10, 11, 12, 13, 14, 15, 16, 17, 18 (but sought that the time be 5:30pm), 19 (but to include that the television is not to be turned on during the set time and the child is to be prepared for the telephone call), 20, 21, 22, 23, 24, 25, 26. The mother opposed the order sought by the father in relation to Mr O.

4. On 12 October 2016 the mother, when making submissions in reply, during the hearing of the father’s application for a recovery order, indicated that if the child was handed back to the father she didn’t want an order for time to be made in her favour because she couldn’t sit back and hand him over to his father to be abused. She complains (as she did during the final hearing) that the Department of Family and Community Services (“FACS”) stands back and does nothing. I indicated to the mother that I did not intend to deliver a final judgment based on what the mother had just said but on the basis of the positions put at the final hearing having regard to what I considered was in the child’s best interests. I told the mother that it would be a matter for her to take advantage of whatever orders were made in her favour. I did not accept the mother’s statement as any type of amendment to her formal applications. The mother’s statement is not inconsistent with similar (but temporary) feelings that she has had in the past.

Orders sought by the father

1. The father adopted the minute of order sought by the ICL with some modifications which were:

   8.1.In respect of order 5 the father wanted monitoring to continue until the child commenced school. He also sought that Ms G or Rev. H be included as appropriate monitors.

   8.2.In respect of order 26, the father wished the restraining orders to include postings to and comments made on social media.

   8.3.The father sought two additional orders:

   8.3.1.Unless the father gives consent in writing, which consent shall not be reasonably withheld, the mother be restrained from allowing Mr O to come in contact with the child during periods of time when the child is with his mother.

   8.3.2.Both parties be allowed to provide a copy of these reasons for judgment to their treating professionals (in the mother’s case, Ms I and in the father’s case, Ms J).

BRIEF HISTORY

1. The father was born in 1963 and is currently 52 years of age.

2. The mother was born in 1971 and is currently 45 years of age.

3. The parties met at the end of 2007 or in early 2008 at Alcoholics Anonymous and Narcotics Anonymous. Although they did not live together, they commenced a relationship in November 2009 and the mother found out that she was pregnant with the child in September 2010.

4. The relationship ended in September 2010 but the parties continued to have a social and sexual relationship with one another up until July 2013. The mother and the father recommenced a sexual relationship towards the end of 2014 (the mother saying that her motivation for participating was that it gave her the opportunity to spend some time with the child who was then in the father’s full time care).

5. On 19 August 2013 consent orders were made which provided that the child live with his mother and spend seven nights with the father in a four week cycle (six of those seven nights being two consecutive nights).

6. In October 2013 the mother ceased to comply with the orders for two weeks. 

7. On 28 October 2013 the mother first raised with the child welfare authorities her concerns that the child had returned from contact with red around his testicles and around his bottom and that he had started to pull on his penis.  The mother says the child said things to her which caused her to believe that there was a possibility that the father was sexually abusing the child. JIRT conducted an informal interview with the child on 1 December 2015 and spoke to the mother. As a consequence, the Department made arrangements for the mother to engage with the Acute Mental Health Team but the mother declined.

8. Between November 2013 and 25 February 2014 the father did not see the child.

9. Between 26 and 28 February 2014, the mother overdosed and was taken to hospital on two occasions. The child came into the father’s care on 27 February 2014 and the father retained the child and did not make him available to the mother for a two month period. The child has remained in the father’s primary care since that time.

10. On 23 May 2014 interim consent orders were made suspending the order made on 19 August 2013, confirming that the child live with the father and spend supervised time with the mother each Wednesday and Sunday night.

11. On 13 August 2014 orders were made that the mother’s time with the child be supervised by either the maternal grandparents, maternal aunts or Ms G.

12. On 11 December 2014 orders were made for the mother to spend monitored time with the child each Wednesday morning to Thursday to morning and Sunday morning to Monday morning.

13. In April 2015 the mother became concerned about statements the child made to her which led her to believe that the paternal grandmother had sexually interfered with the child.

14. The child was interviewed by JIRT on 1 July 2015. JIRT did not take any action. JIRT interviewed both parents on 1 December 2015.

15. On 10 December 2015 orders were made suspending the child’s time with mother until 18 December 2015 whereupon the child’s time with the mother continued to be monitored.

CREDIT

Mother

1. The mother gave her evidence in a very straight forward manner. She readily made concessions against her interests. I accept that at all times she truthfully told me what she remembered, however there were occasions where the mother denied things that she may not have remembered because of her emotional or drug affected state at the time. For example the mother denied that she told police on 27 February 2014 that she believed the father had stitched poison into the child’s clothes to make him sick. I find it’s unlikely that the attending police officers would have recorded that if the mother hadn’t said it to them. On other occasions the mother had formed the view that things had happened which had not. For example, as mentioned below, the mother had thought that the child had said certain things to JIRT which the child had not said to them.

2. The mother was cross examined in three different blocks after the interposition of witnesses. She told me she didn’t sleep very well on the weekend before the hearing and she had the stress of trying to run this case against two barristers. She conducted her case well given her difficulties and vulnerabilities. At the end of her cross examination she started to react by not answering the question that she had been asked (which she had been doing quite well up until that point in time) but by recounting negative things about the father or those associated with the father as if that tit for tat information would neutralise the inappropriate behaviour that she was being asked to concede.

Father

1. The father presented in the witness box as a reasonably candid witness.

2. Perhaps understandably because of the sexual abuse allegations the mother has levelled against him, the father has a very low opinion of the mother as a person and of her parenting capacity more generally.

3. There were two major credit issues that arose in the father’s evidence. The first was his concession that he had deliberately, on a previous occasion, given false evidence about his intravenous drug use. Objective records showed that he had not given truthful evidence. His explanation for not giving evidence was that he was fearful that if he admitted to his intravenous drug use there was a possibility that the child would be returned to the mother. I accept that that is why he did it. It does give me pause for some concern however in relation to whether or not I accept all of his other evidence has been truthful.

4. The second issue that does not reflect well on the father’s credit is a difference in the evidence that he gave in respect of a stabbing that occurred outside the father’s residence in January 2016. In oral evidence the father said that he and the child were walking up to his apartment from the beach when he saw a crowd of people and he assumed that something serious occurred so he moved the child away from the scene. He said that he was focused on retaining the child’s attention away from the scene and that neither of them saw what had occurred. In a letter dated 12 January 2016 to Housing NSW to support the transfer of the father to different housing, Ms J, social worker, stated

   [The father] was returning with his son following an afternoon swim and walk, they were confronted with an incident playing out directly outside their home. They needed to walk past this incident to get into their apartment. As it turns out, [the father’s] 4.5 year old son witnessed police trying to revive a man, who had been stabbed several times. The ambulance had not arrived at that time. [The father] said he tried to protect his son from seeing anything, but it was impossible, given the seriousness and the urgency of the event.

5. It was suggested to the father that these two statements were inconsistent. The father maintained that the child had not seen the victim and at first the father said that Ms J’s statement was also truthful and he could not see the inconsistency. When he appreciated the inconsistency, the father then said that what he meant when he spoke to Ms J was that it was impossible to shield the child from seeing the commotion outside the apartment building and he was not sure what the child saw. Ms J in oral evidence confirmed that what she set out in her letter was based on notes she had taken from what the father had said to her contemporaneously with the event. Counsel for the father suggested that I should find that his oral evidence under oath was to be accepted over what he had told his counsellor contemporaneously. I have significant difficulty with that submission and find that it is more likely that the father was minimising the exposure that the child had to that event on that day when describing it to me in the witness box.

6. The father was taken to the occasion when he was last hospitalised in March 2007. His oral evidence minimised the circumstances of that hospitalisation. When the notes from the admitting hospital were read to him, he agreed that his hospitalisation was as a result of a more serious set of circumstances than that which he originally portrayed in oral evidence.

7. I am not able to say that either parent’s evidence should be accepted over the other’s where there are differences between them.

MORE DETAILED CHRONOLOGY

1. In 1963 the father was born and is currently 52 years of age.

2. In 1971 the mother was born and is currently 45 years of age.

3. In 1979 when the father was approximately 16 years of age, he commenced drinking alcohol daily. His consumption of alcohol increased over the years until it was several litres a day. He ceased drinking alcohol in 2007 following the successful completion of his third rehabilitation program.

4. In approximately 1986 the mother left school at the age of 15 and began a relationship with the father of her best friend. That relationship lasted for approximately four years.

5. In 1990 when the mother was 19 years of age, the relationship with the father of her best friend broke down and she began abusing Mersyndol, taking up to 60 tablets a day. She abused this drug until she was 22 years of age.

6. In 1991 the mother’s first child, P, was born. P decided to leave school in 2008 when he was 15 years of age. From that time, he lived with his maternal grandmother and ceased to be in the mother’s ordinary full time care. 

7. On 24 December 1991 the father attended the Emergency Department of Q Town Hospital with a lacerated hand. He had punched a glass window after a domestic argument. He was intoxicated when he presented himself to the hospital.

8. On 3 November 1992 the mother attended the Emergency Department of R Town Hospital following an overdose of Valium. She was then transferred to the Acute Psychiatric Unit. It was noted that the mother was not suicidal or depressed but had overdosed in order to receive assistance for her benzodiazepine abuse. However, the mother later signed an Against Medical Advice form and demanded to go home. 

9. In 1993 at 22 years of age the mother experienced a psychosis.

10. In 1995 the mother’s second child, S, was born. In 2010 at the age of 15 S decided to live with her father but she continues to see the mother.

11. In the mid 1990’s a woman with whom the father had been in a relationship with for 12 months died of a heroin overdose and the father was admitted into a psychiatric ward as a result of his reaction to that death.

12. Between 30 July 1996 and 9 August 1996 the father was admitted to Suburb T Hospital as a result of an overdose. He was then admitted to the Acute Psychiatric Unit at Q Town for poly substance abuse (oral and IV). It was noted that he had experienced increased feelings of guilt and depression since the death of his girlfriend and was taking 25-50 of 10mg tablets of Valium and drinking 5 litres of cask wine daily. In this time a blood test revealed that the father had hepatitis C.

13. Between 12 November 1996 and 21 November 1996 the father was found unconscious at home and was taken to the Emergency Department of Q Town Hospital after an overdose on Panadeine Forte, Valium, Serepax and alcohol. He was then transferred to the Psychiatric Unit of R Town Hospital. The father disclosed that in the weeks prior he had been taking on average, 150mg of Diazepam, Serepax and up to 5 litres of wine per day. He was commenced on a Diazepam reduction regime for alcohol and benzodiazepine withdrawal and was referred for residential rehabilitation.

14. Between 13 and 16 December 1996 the mother was admitted to R Town Psychiatric Unit after an overdose of Rohypnol tablets. The records indicate that she had written a lengthy suicide note. She was discharged to Drug and Alcohol Services on 16 December 2006.

15. On 17 January 1997 the father attended the Emergency Department of R Town Hospital following an overdose of Valium, Serepax and alcohol.

16. On 22 January 1997 the father attended the Emergency Department of Q Town Hospital as a result of a panic attack. It was noted that he had a six month history of anxiety/fear attacks.

17. On 26 February 1997 the father was taken to the Emergency Department of R Town Hospital following an overdose of Serepax, Valium and wine. 

18. On 27 February 1997 the father attended Q Town hospital requesting a detox after experiencing symptoms of withdrawal. It was noted that the father stated that he was addicted to Serepax.

19. Between 3 July 1997 and 8 July 1997 the father was admitted to hospital following an overdose of 25 Serepax, 25 Valium, 25 Mogadon and alcohol within a 24 hour period. The father admitted that the overdose was triggered by the anniversary of his girlfriend’s death. It was noted that he expressed interest in a detox programme and grief counselling.

20. Between 1997 and 2000 the mother went to rehabilitation and was sober for a period of three years.

21. On 16 July 1999 the father presented to hospital intoxicated and withdrawing from Valium.

22. On 5 August 2000 the father was found unconscious in a bathroom and was taken to hospital with a laceration to the back of his head. He had overdosed on Valium and alcohol.

23. Between 2002 and 2004 the mother relapsed and began a methadone program for two years, however, upon withdrawing from methadone and attending a family funeral, she began binge drinking.

24. On 20 March 2002 the mother overdosed on Rivotril, Valium, Largactil and alcohol. It was noted that this was an intentional suicide attempt. She was subsequently admitted to Suburb T Hospital overnight. The mother then experienced symptoms of withdrawal with anxiety, hallucinations and voices in her head. 

25. On 11 September 2002 the mother presented to an Emergency Department following an overdose of Panadeine and alcohol. The mother stated that she was addicted to Panadeine and alcohol and did not know how to stop. It was noted that this was not a suicide attempt. 

26. On 22 February 2003 the mother presented to an Emergency Department following the ingestion of 50 Panadeine Forte and 20 Dolocid tablets. 

27. On 26 April 2003 the father presented to the Emergency Department of Q Town Hospital after he had been drinking alcohol in the company of some women. A verbal argument ensued and the father was hit in the head with a wine glass causing several lacerations to his scalp and forehead. While the father admitted to using speed intermittently, he denied using any on this occasion.

28. On 25 June 2003 the mother attended the Emergency Department of Suburb T Hospital following an overdose of Zyprexa and Efexor. It was noted that it was not a suicide attempt as she regretted taking the tablets immediately and attended the hospital.

29. On 6 July 2003 the mother was admitted to Q Town Hospital after overdosing on 24 Panadeine Forte tablets in a 7 hour period. The mother denied any suicidal intent saying that she took the tablets to ease her anxiety.

30. On 9 June 2004 the mother presented to an Emergency Department after taking Panadeine Forte, Phenergenn, Valium, Methadone and anti-depressants. It was noted that she was taking more than this on a daily basis. Prior to presenting to the hospital the mother had spoken to her counsellor who told her that if she did not self-present to hospital she would ring an ambulance.

31. On 1 October 2005 the mother attended an Emergency Department after taking 3 x 35 mgs of Methadone. She was noted to feel drowsy, was vomiting and had a headache.

32. In 2006 the mother had a constant negative feeling.

33. On 24 April 2006 the mother presented to an Emergency Department following an overdose of Mersyndol tablets. The mother stated her intention to self-harm.  

34. In 2007 the mother experienced another psychosis at Odyssey House.

35. Between 15 March 2007 and 22 March 2007 the father was admitted to Q Town Hospital after he was assaulted a week prior. The father presented as being depressed with thoughts of self-harm and admitted to being addicted to Valium and using ice fortnightly. The father was transferred to R Town Hospital for detox. 

1. In October 2007 the father says that he commenced sobriety.

2. At the end of 2007 or in early 2008 the mother and father met for the first time through Alcoholics Anonymous and Narcotics Alcoholics.

3. In November 2009 the mother and father commenced a relationship.

4. In September 2010 the mother told the father that she was pregnant and according to the mother the father was unhappy about that. According to the mother, the relationship ended in September 2010. 

5. Between 17 and 22 March 2011 the mother was admitted to Q Town Hospital by ambulance after calling her GP with thoughts of self-harm. She was 30 weeks pregnant at the time. The mother reported of an “ongoing tumultuous relationship” with the father. She was concerned as to how she was going to manage with no close supports. Further, the mother noted that she had been unable to give good care to her two previous children “due to her erratic drug and alcohol use … [and] wants to provide good care to this child.”

6. In 2011 the child was born. The mother was the child’s primary carer after the child’s birth.

7. The father says that between August 2011 and January 2013 he spent 15 days a month caring for the child.

8. In November 2011 the mother and father participated in a mediation with Relationships Australia. The mother however became agitated partway through that mediation and left.

9. In December 2011 the mother and the child were referred to the Brighter Futures Program which they engaged in until January 2014.

10. On 9 January 2013 the mother reported to a doctor that her fibromyalgia was causing her considerable pain and that she was generally not coping. It was noted that she had been using Panadeine Forte every day in the past year “partly for fibromyalgia but primarily due to drug dependence.” The mother expressed her desire for a referral to a pain clinic.

11. On 16 January 2013 the mother visited her doctor and reported that she had thoughts of self-harm and that those thoughts were there whether or not she was taking her antidepressants. She said that she had no plan of suicide.

12. On 22 May 2013 the mother reported to her doctor that she had seen a psychologist on Monday when she felt suicidal but that she no longer felt suicidal. The father had provided respite by taking the child for a week. It was noted that she was being assessed by Community Mental Health on the following Friday.

13. On 14 June 2013 the mother and father participated in a further mediation by telephone. The mother was legally represented and the father was not.

14. On 20 July 2013 the father and mother texted one another in a way that would indicate they were still at that time romantically involved.

15. On 19 August 2013 the parties entered into consent orders. Those orders provided that the child live with the mother and spend seven nights in a four week cycle with the father with six of those seven nights being three lots of two consecutive nights.

16. Between September and October 2013 the mother installed a recording device in the child’s backpack on two occasions when the child spent time with the father. On each of those occasions about 15 hours was recorded. The mother asserts that those tapes include a 40 minute argument between the father and his partner and demonstrated that the child was left alone in a car by his father (the child was two and a half at the time).

17. In October 2013 the mother stopped adhering to the consent orders for two weeks, she says primarily because she judged that the overnight separation from her and the disruption to the child’s routine was causing him behavioural difficulties. During her oral evidence the mother said that the other things that motivated her not to comply with the orders were: 1) she thought that the father was taking an excessive amount of Valium and other drugs; 2) she was concerned that the child was being left in the care of people who were in recovery; 3) she was concerned that the child had been left in a car on his own; and 4) she was concerned that the father’s girlfriend was taking clothes off in front of the child. Later, the mother also stated that she had additional concerns being the father’s health, what he fed the child, his smoking in the house, and the father’s overall care of himself. The mother also said that what she heard on a recording of the child in the father’s care also led her to cease to comply with the court orders.

18. On 28 October 2013 the mother made a report to the FACS helpline. The mother reported concerns about the child and believed that the child was being sexually abused by the father. The FACS file contains this note: “Caller (which was the mother) further stated that the father may be touching the child. Asked the caller what made her think that the father was touching the child. Caller stated that the child has come back red around the testicles and around the bottom. Asked the caller if the child has stated anything and caller stated no. Asked the caller if she had taken the child to the Dr for a medical check up and caller stated no. Asked the caller if it could be a nappy rash and caller stated that it could be”. The mother referred to the fact that she had planted a recording device in the child’s bag. She had the view that the father may have found it and maybe he was attempting to set her up (I do not know how the mother thought the father might have used the recording device she had installed, to set her up). The mother had additional suspicions as to the father’s use of Valium and marijuana and her concerns that the child was returned to her lethargic and tired after time with the father.

19. Between November 2013 and 25 February 2014 (except for one and a half hours on 29 December 2013 and four hours on a day in January 2014), the father was prevented from seeing the child by the mother. The father says he made multiple attempts to have the child with him in accordance with the court orders. The mother says that the father made virtually no attempt to see the child in this period.

20. On 1 November 2013 the father sought legal advice and was advised that he should pick the child up in accordance with the court orders. The mother made a report to the FACS helpline on this day. The mother told the Department that the father may be giving the child excess medication (Phenergan or Valium) as he is very drowsy returning from the father with bloodshot eyes. The mother said that she has had this concern for a while now however, her concerns have escalated in the past week after she hid a recording device in the child’s bag. In the recordings the mother said that she heard the father buying alcohol while the child was in the car. She said the father left the child in the car for about 30 minutes in the last week. The mother did not know if the child was asleep or distressed during this time. The mother said the father was smoking when the child was with him and the mother was suspicious that the father was smoking marijuana at times. The mother was worried that the child was witnessing sexual behaviours between the father and his partner. It was noted that the mother had been delaying returning the child to father, due to her fear of the child being harmed.

21. On 3 November 2013 the father went to pick the child up in accordance with the orders but no one answered the door.

22. On 8 November 2013 the father attempted to collect the child from school in accordance with the orders but was informed the mother had collected the child earlier in the day.

23. On 9 November 2013 a report was made to FACS by the mother. The mother stated that she had not sent the child to the father for two weeks and knew that she was breaching the consent orders but was doing so to keep the child safe. The mother said that she had noticed a significant change in his behaviour and appearance and improvements in his sleeping patterns. The mother alleged that the father continues to smoke inside and that the father does not have a routine when the child is in his care. She also alleged that the father has appeared stoned and she was worried that he was using drugs. The mother stated that in the recordings from the device she hid in the child’s bag she heard the father and his partner arguing and swearing and ignoring the child whilst he was in distress.

24. On 2 December 2013 the mother reported to a doctor that she was feeling anxious and stressed, wasn’t sleeping and that she had no respite from looking after the child. It was not alleged that this stress arose from anything which was connected with any behaviour of the father at that time. 

25. On 7 December 2013 the mother discussed her pain and medication with her doctor and the possibility of entering rehabilitation with the child to detox from prescription medication. The doctor spoke to a facility who advised that they may be able to attend in January 2014.

26. On 25 December 2013 the mother did not give the father the four hours of time with the child that was specified in the court order for Christmas Day.

27. On 29 December 2013 the mother called the police after she said the father had begun verbally abusing her in front of the child. The police brokered an agreement between the parties that allowed the father to take the child away for an hour and a half and then return him. The father asserts that the conversation between he and the mother was not abusive and that he simply asked the mother if he could see the child for two hours.

28. On 23 January 2014 the mother visited her doctor and was prescribed with Valium.

29. On 24 January 2014 the mother left her doctor a message requesting a further script for Valium. The doctor records a discussion with the mother about the use of Valium as follows: “Discussed valium use with patient – advised NO MORE SCRIPTS for valium. Risk of depenedence (sic) high need to wean over next week review in one week”.

30. On 7 February 2014 the mother called her doctor’s office requesting her doctor to call her. It was noted that the mother said she was “not in a good way mentally”. 

31. On 12 February 2014 the mother visited her doctor and her medication was reviewed. The doctor prescribed the mother with Prozac but to start only after she had been off Avanza for two days with a review in a few weeks.

32. On 12 February 2014 the father was referred to see Ms J, social worker, for counselling due to a resurgence of depressive/anxiety symptoms.

33. On 23 February 2014 the mother agreed to allow the father to see the child on 26 February 2014 provided that such time was supervised by the paternal grandparents.

34. On 26 February 2014 the father says he and his parents arrived at the mother’s house to collect the child. The father says the mother acted aggressively and produced a recording device which she had used to record the father with the child. The mother then became agitated and told the father to take the child and care for him full time and see how he coped. The mother admits that she was feeling overwhelmed at this time. The mother says that after picking up the child, the father said he would not return him at 6.30pm as planned but would instead return him to child care the following morning. On this day, the mother voluntarily admitted herself to Q Town Hospital for mental assessment due to thoughts of self-harm. She was later released that evening.

35. On 27 February 2014 the mother attended the paternal grandparent’s residence to collect the child and take him to preschool. A verbal argument ensued between the mother and the father resulting in the father contacting the police. The police attended a short time later. In the police record they note that the mother alleged that the father was stitching poison into the child’s clothes to make him sick. The mother denied that she said this (rather she says she told them that the father accused her of leaving poisonous objects in the child’s bag), but as indicated above, I find it is unlikely that the attending police officers would have recorded this if the mother had not said it to them. The police advised that due to the mother’s recent “scheduling” at Q Town Hospital it was best for the child to stay with his father.  The police reported their involvement with the parties to FACS.

36. On 28 February 2014 the mother overdosed on Valium and anti-depressants and was admitted to R Town Hospital. She was discharged three days later. The mother was transferred to the Psychiatry unit of R Town Hospital on 1 March 2014. She was discharged on 3 March 2014. The mother acknowledges she had become distressed and upset and acted irrationally. After 27 February 2014, the father retained the child for a period of two months.

37. Between 3 March 2014 and 24 March 2014 the mother made multiple attempts to communicate with the child but the father refused.

38. On 17 March 2014 the mother attended upon Dr U, her GP, for agitation. She was referred to Dr V, psychiatrist.

39. On 19 March 2014 the mother attended upon Dr U. She denied she had any thoughts of self-harm but said she felt anxious and did not trust anyone.

40. On 21 March 2014 the mother attended upon Dr U and it was noted that she was feeling better and was not experiencing anymore panic attacks.

41. On 25 March 2014 the father and mother went to mediation and agreed that the mother would be allowed to phone the child on Tuesdays and Fridays. The father agreed afterwards to allow the mother to see the child on the Sunday at the maternal grandmother’s home.

42. On or about 28 or 29 March 2014 police conducted a welfare check at the father’s residence following a request made by the mother.

43. On 31 March 2014 the father did not attend the maternal grandmother’s home as previously agreed with the mother. The mother attended upon Dr U on this date and it was noted that the mother was very upset and distraught after the father did not allow her to see the child. On this day the mother contacted the police and they subsequently attended the father’s property and conducted a welfare check.

44. At the end of April 2014 the mother made contact with Family Services Suburb K for support. She was allocated a worker in July 2014. The mother ceased engaging with Family Services Suburb K on 26 August 2014.

45. On 4 April 2014 the mother told a Brighter Futures worker that she felt suicidal. She said that she couldn’t cope anymore and wanted the child back as she missed him. She felt “helpless about the whole situation.”

46. On 16 April 2014 the mother visited Dr W as she had not been able to sleep and had been in contact with the acute assessment team. She was distressed that the father had the child. The mother disclosed to Dr W that she had overdosed on Panadeine Extra, taking 24 tablets in 24 hours. The doctor records the mother feeling suicidal.

47. On 23 April 2014 the mother spent time with the child for the first time since 26 February 2014. The mother reported the child being distressed upon her leaving.

48. On 29 April 2014 the mother filed an Initiating Application seeking an order that the child live with her and spend time with the father on each alternate weekend and at other times as agreed.

49. On 30 April 2014 the father’s medical records disclosed that the father was “Stil (sic) quit (sic) stressed and depressed needs to up the dose will see the psychologist”.

50. On 23 May 2014 interim consent orders were made suspending the order made 19 August 2013, placing the child with the father and ordering that the child spend supervised time with the mother each Wednesday overnight and each Sunday overnight and such other time as agreed in writing. During June there was some difficulty in the parties reaching any agreement in relation to additional time.

51. On 30 May 2014 the mother asked the father if the child could spend overnight time with her on Friday for a church event. The father agreed to additional but not overnight time and picked the child up at the conclusion of the event.

52. On 2 June 2014 the father’s solicitor wrote to the mother’s then solicitor requesting that any further requests by the mother for additional time be made through her solicitors. The mother has continued to make requests for additional time since this date.

53. On 7 June 2014 the mother requested additional time with the child so he could attend her niece’s baby shower. The father refused.

54. On 7 August 2014 the mother had the child overnight on an unsupervised basis because the maternal grandmother was unwell. The mother says that she had the father’s prior agreement for that to happen.

55. On 10 August 2014 the mother indicated to the father that there were difficulties with the maternal grandmother supervising time on that occasion. The father did not agree to time unless supervision took place and the maternal grandmother stayed on that occasion to supervise.

56. On 13 August 2014 orders were made that the mother’s time with the child be supervised by either the maternal grandparents, maternal aunts or Ms G.

57. On 11 December 2014 orders were made for the mother to spend monitored time with the child each Wednesday morning to Thursday to morning and each Sunday morning to Monday morning.

58. On 20 April 2015 a report was made to FACS that the mother had attended upon the caller (a doctor) in the morning and stated that the child had disclosed that his Nanna “squashes me when she sleeps on me and sits in front of my penis” and “she bounces on me and it hurts”. The mother also stated that the child had recently complained that his “willy” hurt whilst urinating. The caller had examined the child and found no physical evidence of this upon examination.

59. On 23 April 2015 a report was made to the FACS Helpline by the mother following up on the concerns she expressed to her GP on 20 April 2015, which were the same as those reported on that date. The mother stated that she had asked why the paternal grandmother bounces on the child and he gave no clear answer but said that she does it for a long time and it hurts. He demonstrated it on a toy monkey. The Helpline Case Worker asked if the paternal grandmother is sitting on the child’s lap and because that is where the child’s penis is it would be squashed and hurt by the weight of an adult or rather if the mother is concerned that the actions are sexually intended. The mother did not know. The mother stated that normally the child is happy to see his paternal grandparents but today when the father told him he was seeing them, the child said “no”.  The mother also disclosed that the child has had a red penis and has been pulling on it a lot. Further, she said that the child has had UTI’s and has been pooing his pants, regressing from his toilet training. The mother also complained about the father driving with the child in the car as the father takes a lot of medication. 

60. On 30 May 2015 the mother reported to the FACS Helpline that she recorded a conversation she had with the child in which the child disclosed that his Nanna sits on his penis. The mother played the recording to the Case Worker where they noted that the recording was loud and muffled and the only words that were made out were “Nana” and “on my penis”. The mother stated that the previous Wednesday the child had a red and sore penis and when asked how he got sore he replied “Nanna sat on it again”. The mother stated that the child did not need any medical intervention as it was no longer hurting the child. A decision was made by FACS that “Due to there being limited contextual information, a direct link cannot be made between the sore penis and a deliberate sexual act. As such, the grandmother cannot be classed as a sexual perpetrator.” 

61. On 1 July 2015 JIRT conducted an interview with the child, the details of which are more fully set out below.

62. On 13 July 2015 orders were made for the father to enrol and take the child to swimming lessons. If the father did not enrol the child in the lessons the orders stated that the mother could enrol him. The father did not enrol the child in swimming lessons. The mother enrolled him and the child commenced lessons in about October 2015.

63. In September 2015 the mother says that the child said that the father had pinched him around the throat with pliers.

1. The mother’s evidence in relation to statements that the child has been making are contained in Exhibit 28 immediately under the heading “Events since March hearing and ongoing concerns”. The mother agreed that notwithstanding the 13 statements she has quoted the child as saying none of them refer to the child saying the father wanted to kill the mother and chop her up with a sword nor is there any words attributed to the child that would indicate that the child was fearful that his father would kill his brother. Notwithstanding those omissions from her statement, the mother indicated orally from the bar table that the child had said that his father was going to kill the child’s brother.

2. During oral submissions the mother asserted that the child also talked of killing himself. That is not an assertion that was made in the mother’s text message of 29 September nor does it feature in any statement the mother attributes to the child in Exhibit 28. The mother assured me that the child both says and sings those words.

3. The allegations made about the words the child is using do not come as any surprise. They are consistent with assertions made previously by the mother and need to be viewed in the wider context of all of the evidence I have heard in this case.

4. The other statement by the child referred to in the mother’s text message of 29 September 2016 was that the child spoke of being called stupid, fat and disgusting by his father.

5. The text message refers to the child speaking of being pinched and hurt in various places. The mother’s evidence is that the child said “my Daddy does that to me”.  The mother goes onto say that the child hurts himself frequently and pinches and punches his head and tries to pinch his legs between the toilet seat and toilet lid and he said that his father had put the toilet seat down on his penis and hurt it.

6. There is some objective evidence of the child demonstrating anxious and upset physical behaviours at the L Care Centre. One of the attachments to the mother’s statement is a document apparently prepared by the Centre which includes the following observations of the child’s behaviours:

   301.1.Shivers/shakes;

   301.2.When engaging in inappropriate behaviour (e.g. talking and disrupting others in group, calling out loudly or singing during group activities) and will hit/tap the side of his head after being redirected by educators;

   301.3.Bites the back of his hand;

   301.4.Drags his fingers down the full length of his face;

   301.5.Pulls on his fingers;

   301.6.Nibbles on collars, necks, edges of his clothing;

   301.7.Eyes downcast/reluctant to establish eye contact while being redirected by educators during inappropriate play or again when faced with tasks he finds difficult or challenging where he then becomes withdrawn;

   301.8.Reluctance to attempt tasks or self-help skills independently;

   301.9.Complains of a sore stomach – generally upon noticing peers being collected by parents and days end.

7. The ICL submitted that some of these behaviours were the subject of comment in earlier expert reports.

8. The mother’s statement sets out her concerns in relation to damage that might be being caused to the child’s mouth as a result of the father continuing to allow the child to use a dummy. The mother also sets out the factual basis upon which she continues to have concerns about the father continuing to expose the child to cigarette smoke and in particular concerns she had about the medical advice and treatment that had been prescribed by a doctor in relation to the provision of a puffer to the child. The mother’s statement says that she enclosed in her attachment a document from Dr GG but that document was not in her attachments. She told me however that the written certificate said that the child’s underlying asthma was due to environmental smoke when the child was with his father, that the child needed a puffer and that the doctor had written a letter to the father asking him not to smoke in the house.

9. Again the issue in relation to the father smoking was not new and had been the subject of evidence during the final hearing.

10. The mother’s text of 29 September also refers to the mother being concerned about the father’s mental state as a result of his erratic and irrational text messages. The attachments to both the father and mother’s affidavit provide a sample of those text messages but the mother was unable to draw my attention to any text message that could be described as “erratic and irrational” by the father to her.

11. The text message of 29 September also says that the mother was concerned about the father appearing “quite drug affected”. The mother’s statement (Exhibit 28) does not give any information relating to the basis of that concern. Mr O in his statement says that when the father, the mother and Mr O were at the doctor’s surgery on 26 September 2016 “[the father] appeared vague and had glassy eyes”. The ICL said that because of that allegation she had requested that both parties undergo drug testing. The father had done so. The mother had not. The result of the father’s test was not available. I am not prepared on the basis of Mr O’s statement to infer that the father had been taking any illicit drugs. Again I’m mindful of the amount of involvement recently of JIRT in the lives of the parties.

12. The mother in her statement says that on Friday 8 July the child’s counsellor (Ms HH) phoned her to inform her that the child had told her that the father had punched him in the head and that she had made a mandatory report to FACS. She said that the counsellor told her that she had informed the father of this report the week before. There is no report from Ms HH available nor are there any documents from the FACS file. What is known however is that since the mother has retained the child there has been an active involvement by JIRT and by the police. I also infer that given the past involvement of FACS with the child they would have made some assessment of any mandatory report made to them about the child. The mother sees the child on two occasions a week. The mother does not report observing any injury to the child prior to 8 July 2016.

13. At the end of the final hearing the ICL submitted that the child should ordinarily live with his father. In final submissions the ICL indicated that nothing in Exhibits 28 and 29 would cause the ICL to change submissions made in respect of what final orders should be made in this matter and consequently the ICL did not support the mother’s application for a change in the current interim orders nor did she support a reopening of the final hearing.

14. On the basis that the final orders would be made within a relatively short period of time the ICL supported the notion that an order should be made for suspension of time between the child and his mother until those orders were made.

15. The ICL pointed out that the material from the child care centre did not indicate any difficulty with the child going to either parent. The ICL referred to previous evidence during the final hearing about the child’s imagination. The ICL said that some of the additional information emphasised why ongoing counselling for the child is important but it raised no issue that had not already been canvassed during the final hearing. The evidence provided at this interim hearing also indicated that the child was still suffering from the fact that he is the focus of the intense conflict that exists between the parents. Again that evidence is not new or surprising. Having said that there are a series of text messages prior to 29 September 2016 that demonstrate the parents have some capacity to cooperate, be flexible and even be courteous to one another.

16. The ICL informed me that a short time before she had made observations of the child. He had seemed happy and not distressed. This was in the context of the mother earlier in the day expressing her fears about the child’s current mental state if he was required to be brought to the court building.

17. Taking into account the child’s best interests and that I anticipate final judgment of this matter will be delivered within a short period of time, I dismiss the mother’s application for a variation of the current interim orders and I make an order for the child to be returned to his father. The ICL has indicated that she will assist in the changeover.

18. When considering whether or not to reopen the case to admit fresh evidence I need on the one hand a balance whether or not the further evidence is so material that the child’s best interests would require that it be admitted against the effect on the child of further delay in the finalisation of the proceedings that a reopening of the case would cause. I conclude that it is in the child’s best interests to move as soon as possible to make final orders in the proceedings. Accordingly, I dismiss the mother’s application for leave to reopen the final hearing for the purposes of adducing further evidence.

I certify that the preceding three hundred and thirteen (313) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 26 October 2016.

Associate:

Date: 26 October 2016