FULTON & PACKER
[2013] FamCA 555
•29 July 2013
FAMILY COURT OF AUSTRALIA
| FULTON & PACKER | [2013] FamCA 555 |
| FAMILY LAW – CHILDREN –With whom a child lives – Where the child has made disclosures of physical abuse and sexual abuse perpetrated by the Father –Where the Father alleges the disclosures are either the product of coaching by the Mother or the product of the influence and dynamics of the Mother’s household upon the child – Where the Mother is highly anxious about the child spending time with the Father – Where the child is aware of the court proceedings and the parental conflict – Where the child has been previously diagnosed as suffering from separation anxiety – Whether the child’s disclosures are reliable given the circumstances – Whether the child is at an unacceptable risk of harm – Where the Mother has a resolute belief that the child has been sexually abused by the Father – Where Mother and her husband have told the child that he has been sexually abused by the Father – Balance between meaningful relationship with the Father and protecting the child from psychological harm. | |
| Family Law Act 1975 (Cth) | |
B and B (1993) FLC 92-357
| Briginshaw v Briginshaw (1938) 60 CLR 336 | ||
| APPLICANT: | Mr Fulton | |
| RESPONDENT: | Ms Packer |
| INDEPENDENT CHILDREN’S LAWYER | Susan Lesley Nanlohy |
| FILE NUMBER: | LEC | 575 | of | 2007 |
| DATE DELIVERED: | 29 July 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 28, 29 and 30 March 2012; 2 and 3 April 2012; 9 and 15 May 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Merkin |
SOLICITOR FOR THE APPLICANT: | Okomoto Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Stephen Tester & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Smith |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
It is ordered that
All previous parenting Orders be discharged.
Parental Responsibility
It is declared that the presumption of equal shared parental responsibility is rebutted in the best interests of the child B, born … 2003 (“the child”).
The Mother shall have sole parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth) (“the Act”)) in respect of the child, save that the Mother shall, prior to making the ultimate decision about any such issue:
(a)use her best endeavours to advise the Father in writing of the decision intended to be made;
(b) seek the Father’s written response in relation thereto;
(c)consider, by reference to the best interests of the child, any such response prior to making any such decision;
(d)advise the Father in writing as soon as reasonably practicable of her ultimate decision.
Live With, Time and Communication
The child live with the Mother.
Pursuant to section 65L of the Act:
(a)the Manager of the … Registry of the Court nominate a family consultant or consultants, of the Court to:
(i)supervise, as far as practicable, the parties compliance with these Orders;
(ii)provide to any party such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, the parenting Order;
(b)the parties do all acts and things reasonably required to comply with the requirements of the family consultant including, but not limited to, the attendance of the childi upon interviews with the family consultant as required.
Pursuant to section 121(9)(g) of the Act the Court approves the publication to the nominated family consultant of:
(a) the Family Report of Mr L dated 30 May 2011; and
(b)these Orders and Reasons for Judgment.
Within fourteen (14) days the Father nominate to the Mother in writing the name of a commercial contact centre or contact supervision service provided in Town X (such as …) available to undertake supervision of the Father’s time with the child for two (2) hours per fortnight (the nominated provider).
Within seven (7) days of the date of the Father’s written nomination each party must:
(a)take all steps reasonably necessary to forthwith undertake any intake requirements of the nominated provider;
(b)comply and continue to comply with all reasonable requests or directions from time to time of the nominated provider; and
(c) attend and ensure the child’s attendance at scheduled visits.
The child spend time with the Father for two (2) hours each fortnight such time to be supervised by the nominated provider.
The Father be responsible for all costs associated with him spending supervised time with the child including all costs of the nominated provider.
The child spend all such other time or times with the Father as the parties may agree expressly in writing beforehand.
On or after … 2016 when the child has attained the age of thirteen (13) years:
(a)the Manager Child Dispute Services of the … Registry of the Court, at the request of either party, nominate to the parties the name of a family reporter suitable to undertake preparation of a family report;
(b)that the parties do all acts and things reasonably required to attend interviews, and cause the child to attend interviews, for the purpose of the family report;
(c)that the family report prepared be released to the parties upon completion.
Upon release of the family report the parties are to participate in Dispute Resolution Counselling if they are unable to resolve any dispute and thereafter either party may file any further application for parenting orders.
Pursuant to section 121(9)(g) of the Act approval is given for the parties to make available to the family reporter:
(a) the Family Report of Mr L dated 30 May 2011; and
(b) these Orders and Reasons for Judgment.
The Father be permitted to send letters, cards and gifts to the child and the Mother shall ensure these are provided to the child.
Miscellaneous
The Mother and the Father shall:
(a)keep the other parent informed at all times of their residential address and contact telephone number;
(b)keep each other informed of an emergency contact telephone number;
(c)keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat the child and the parents shall authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child;
(d)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child.
This Order be authority for the child’s school to provide to the Father, at his own cost, such reports or information as may be requested about the child, copies of the child’s school reports, any school newsletters and other notices issued from time to time.
During the time the child is with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b) speak of the other parent respectfully; and
(c)not denigrate or insult the other parent in the presence or hearing of the child and use their best efforts to ensure that others do not denigrate or insult the other parent in the presence or hearing of the child.
The Independent Children’s Lawyer be discharged.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fulton & Packer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: LEC 575 of 2007
| Mr Fulton |
Applicant
And
| Ms Packer |
Respondent
REASONS FOR JUDGMENT
Ms Packer (“the Mother”), Mr Fulton (“the Father”) and the Independent Children’s Lawyer (“the ICL”) appointed to independently represent the interests of the child B, born in 2003, now aged nine years (“the child”) have competing proposals for parenting orders pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
A central issue in this case is whether statements made by the child are reliable, in the sense of them constituting a factual recounting of the child’s actual experiences. If so, the child has recounted instances of physical abuse and sexual abuse which he has experienced perpetrated by the Father. That has obvious consequences for parenting orders in the child’s best interests. If the statements are not reliable other questions, such as the sources, circumstances and context of the statements, fall for consideration.
Exhibit 16 compiled by the ICL is a chronology drawn essentially from the affidavit evidence of the Mother, Mr Packer and other witnesses in the Mother’s case, as well as some subpoenaed records admitted into evidence, detailing the chronology of statements or disclosures alleged to have been made by the child. Exhibit 16 was admitted into evidence by the consent of all parties. In summary and paraphrased form, the central allegations of abuse comprise:
a)at an indeterminate time prior to 20 October 2010 (when the Mother says she was first told this by the child) but which is assumed to probably be in the September/October 2010 holiday period when the child spent time with the Father, the Father punched the child in the stomach with sufficient force to wind him and to cause him to fall to the ground
b)the child’s statements first made on 15 November 2010 to the effect that the Father attempted to smother him with a blanket;
c)an occasion when the Father refilled the petrol tank on a motor bike whilst the child was sitting on the bike with the engine running first stated by the child on 16 November 2010;
d)that on statements of the child first made on 15 December 2010 and thereafter an earlier event in July 2009 involved the Father failing to obtain appropriate medical treatment in a timely way when the child suffered an injury to his forehead;
e)the Father engaging in a practice when showering with the child of washing the child’s bottom with his hand and in that activity digitally penetrating the child’s anus. The child is said to have first disclosed concerns about bottom washing on 6 December 2010 and to have first disclosed that it involved anal digital penetration on 18 July 2011;
f)the Father engaging in a practice of urinating on the child when showering with him first disclosed by the child on 9 December 2010, which practice the Mother and her husband, Mr Packer, maintain was done by the Father for his own sexual gratification.
Whilst I accept that Exhibit 16 is accurately drawn from the material referred to, reference will be made to other evidence bearing upon the child’s disclosures that adds to or alters the detail in the exhibit. For example, the entry for 25 October 2010 appearing in Exhibit 16 drawn from Mr Packer’s affidavit of 16 February 2011 is correct in that this is what the affidavit contains but the affidavit is plainly factually incorrect because what Mr Packer there deposes to as being disclosed to him by the child cannot be accepted as accurate. As at 25 October 2010 the evidence of the Mother, also based upon her diary, is that the only disclosure the child had made to that point was of the “punching” incident discussed below.
It is also part of the Mother’s case that the Father is prone to angry outbursts and is controlling of others by such behaviour. The Mother contends, in summary, that the child’s exposure to such behaviours was a factor in leading him to be fearful or scared of the Father.
Evidence which is central to assessing the veracity of the allegations includes not only that of the Mother, her husband Mr Packer and her witnesses but also the child’s interview by police sergeant Mr K, then based at Town X, on 6 January 2011;[1] and the interview of the Father following that and the child’s interview on 28 July 2011 by officers of what is known as the Joint Investigation Response Team, or JIRT.[2] As a result of investigation by JIRT it was resolved that a criminal prosecution of the Father in respect of the allegations could not be sustained.
[1] The audio recording of this interview is Exhibit 6.
[2] Exhibit 1 comprises the handwritten notes of Mr P who participated in that interview; Exhibits 23 and 24 are recordings compiled by JIRT; Exhibit 3 is an “assessment” by JIRT dated 5/10/2011; Exhibit 4 is a JIRT report dated 24 August 2011.
On the Mother’s case the child’s statements to her and others are to be taken as reliable in the sense described. Thus she proposes that parenting orders be made for her to have sole parental responsibility and for the Father’s time with the child to be supervised in Town X until the child turns 14 years of age (in 2017).
The Father adamantly denies having inflicted physical abuse or having perpetrated sexual abuse. He denies that the child has ever had cause to be fearful of him and denies that the child ever feared him until well after all of the allegations had repeatedly been canvassed with the child and not until about mid-2011. His explanation for the child’s statements is that such statements are likely the product of actual coaching of the child by the Mother to make such statements or alternatively the product of the influence and dynamics in the Mother’s household upon the child. As the Father sees no prospect of the Mother supporting his relationship with the child he seeks orders for the child to live with him and, after a period of time, [3] to commence spending alternate weekend and holiday time with the Mother.
[3] Six months in his Case Outline document and six weeks in his final written submissions.
The ICL contends that the child’s disclosures are unreliable in the sense described not because of deliberate “coaching” by the Mother but the ICL contends that it is the Mother’s anxiety, picked up by the child, that explains his statements. It is contended by the ICL that a finding ought be made that the child is not at an unacceptable risk of harm in the Father’s care. The ICL contends that both the Mother and her husband Mr Packer genuinely and adamantly believe that the child has been physically and sexually abused by the Father and that such belief has been, and will continue to be, “transmitted” to the child. It is thus contended that because the Mother is unable and/or unwilling to protect the child from her own distress and anxiety related to his relationship with the Father, that the child is at an unacceptable risk of harm in the Mother’s household from continuing psychological and emotional abuse.
The ICL contends that the child will not have a meaningful relationship with the Father if he lives with the Mother and spends time with the Father because, amongst other things, the Mother will almost certainly not comply with orders for the child to spend unsupervised time with the Father. On this basis the ICL supports parenting orders which would see the child primarily living with the Father and the Father having sole parental responsibility.
This central issue resonates with the relevant statutory considerations identified in s 60CC of the Act including the two primary considerations which the Court must consider in determining parenting orders in a child’s best interests, namely:
(1)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(2)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Whilst the issues of sexual and physical abuse are central to this case it must be recognised that the law prescribes the way in which this Court must approach a parenting case involving such issues and in doing so there is emphasis upon the overall task of determining parenting orders in a child’s best interests.
In M v M (1988) FLC 91-979, the High Court authoritatively determined the applicable principles for a primary judge to apply in determining parenting orders in a case involving allegations of sexual abuse.
Whilst Part VII of the Act has been amended since it was there considered by the High Court, none of those amendments operate to alter the substance of those principles. Rather, the principles may be expressed consistently with the language of Part VII in its amended form.
It follows from the decision of the High Court that in parenting cases involving allegations of sexual abuse, a number of propositions can be stated:
(a)A primary court is not under a duty to resolve in a definitive way whether, on the balance of probabilities, a parent has sexually abused a child. The ultimate and paramount issue the Court must decide is the making of parenting orders in the best interests of the subject child or children;
(b)In parenting proceedings, the Court is concerned to make such parenting orders as will best promote and protect the interests of the child. In deciding what order it should make, the Court will give very great weight to the importance of maintaining parental ties, because it is prima facie in a child’s interests to maintain the filial relationship with both parents. Thus, resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of best interests;
(c) The Court should not make a positive finding that the allegation is true unless the Court is so satisfied on the balance of probabilities. In applying that standard of proof, due regard must be had to the following factors:
The seriousness of an allegation made, the inherent unlikelihood of a given description, or the gravity of the consequences flowing from the particular finding are considerations which must affect the answer to the question of whether the issue has been proven to the reasonable satisfaction of the tribunal. In such matters, “…reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences.”[4]
(d)An allegation that a parent has sexually abused the child is often easy to make but difficult to refute. However, it does not follow that if an allegation of sexual abuse is not proven on the balance of probabilities, that such conclusion is necessarily determinative of the outcome. In many cases the Court cannot confidently make a finding that sexual abuse has or has not taken place and there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless impelled by the particular circumstances of the case to do so;
(e)The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental to be taken into account in determining parenting orders. The Court must determine whether, on the evidence, there is a risk of sexual abuse occurring and assess the magnitude of that risk. The magnitude of the risk may be less if time is supervised, but even then, that is not determinative because of the potential effect upon a child of interaction with a parent who has, or whom the child believes has, sexually abused the child;
(f)To achieve the proper balance between the risk of detriment to the child of sexual abuse, and the possibility of benefit to the child of parental time and communication, the test to be applied is that a Court will not make orders for time and communication, which orders would expose the child to an unacceptable risk of sexual abuse;
(g)When impelled by the particular circumstance of the case, and on the standard of proof with due regard to the factors referred to, the Court makes a positive finding that an allegation of abuse is true, in all but the most extraordinary cases that finding will have a decisive impact on the parenting orders to be made.
[4] M v M (supra) at p 77,081, citing Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336, 362.
Outside of those cases falling at the extreme ends of the spectrum, on the one hand where the evidence and the circumstances of the case impel a positive finding that sexual abuse has actually taken place, and on the other, where the Court has no hesitation in rejecting the allegation as groundless, the High Court referred to, “…very many cases…” in which the Court, “…cannot make a finding that sexual abuse has taken place.”
Thus, in many, if not most, cases where an allegation of sexual abuse is made, the evidence and circumstances will not justifiably permit the Court to make a positive finding that sexual abuse has or has not occurred. However, the Court must:
a)Determine whether, on the evidence and circumstances, there is a risk of sexual abuse occurring in future; and
b)Determine the magnitude of that risk; and
c)Determine whether and how that risk may be addressed; and
d)Determine whether, because of the nature and magnitude of the risk, there would exist an unacceptable risk that the child would be exposed to sexual abuse by the form of parenting orders made.
The emphasis by the High Court in M v M (supra) on the passage quoted from Dixon J in Briginshaw v Briginshaw (supra), including the reference to, “…inexact proofs, indefinite testimony or indirect inferences,” resonates in cases involving an allegation of child sexual abuse, not only with respect to the limitations upon the Court making a positive finding, but also as to the risk assessment to be undertaken.
Notably, in a similar vein, in the passage of Dixon J’s judgment in Briginshaw cited in M v M, his Honour also observed in that judgment (at p 368):
…The importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact. Further, circumstantial evidence cannot satisfy a sound judgment of a state of facts if it is susceptible of some other not improbable explanation.
When it is accepted that outside of those rare cases where there are any admissions by an alleged perpetrator, or any physical evidence, the allegation most commonly rests upon the statements of a child or even an interpretation of such statements filtered through others; and initial statements cross-examined upon by a concerned or horrified carer or parent (as observed by the child) in an already conflictual parental relationship (as known to the child) may be prone to incite unreliable versions of facts. At the other end of the spectrum the capacity of young children to provide detailed and entirely consistent accounts of, or detailed particulars surrounding, actual experiences has limits not to be mistaken for recounting a wholly imagined event. The difficulties of assessing evidence sourced from children, filtered through others, perhaps repeatedly, becomes obvious.
In B and B (1993) FLC 92-357 the Full Court discussed the role of this Court when faced with allegations of sexual abuse of children in particular where there is a positive finding of abuse or where there is a finding of unacceptable risk of abuse and the appropriateness of supervised time in those circumstances.
What was the nature of the parental relationship leading up to, and at the time of, the child’s disclosures?
The Father is 59 years of age and the Mother is 50 years of age.
They were aged 49 years and 39 years respectively when they met and commenced a relationship in August 2002. They commenced living together in about June 2003. The child was born in late 2003 and the parties separated in January 2004, when the child was just three months old. The parents’ relationship as a couple initially subsisted only for about 16 months and it seems that they lived together as a couple for only about seven of those 16 months.
At separation in January 2004 the Mother moved from the Father’s rural property at G near Town Y on the north coast of New South Wales (a property owned and lived at by the Father since 1981 and where he has continued to live) to the township of Y with the child and her four older and now adult children of an earlier relationship (the child’s half-siblings). At the end of 2004 the Mother moved to Town X where she has since resided. Thus since the end of 2004 the parents have lived about 180 kilometres apart.
During the period in 2004 whilst the Mother was living in Town Y the Father’s evidence is that he saw the child every day and that evidence is not challenged.
When at the end of 2004 the Mother moved to Town X to live the Father on his version visited more or less weekly staying for two or three nights each week. The Mother acknowledged in her oral evidence at trial that she had a caravan on her property at Town X and that the Father would regularly stay in the caravan and see and spend time with the child during those periods.
Some time in about 2005 the Mother commenced a relationship with her current husband, Mr Packer. The Father continued to spend time with the child by meeting the Mother about half way between the parents’ respective homes to do things such as spending time with the child in a park.
It seems that between about November 2005 and about March 2006 there was some suspension of the Mother’s relationship with Mr Packer and, on Mr Packer’s evidence, some attempt by the parents to reconcile their relationship (ultimately unsuccessful) and during that period the Father returned to visiting the Mother in Town X staying with her and the child during the week and returning to his home on weekends.
Over that period the Father refers to caring for the child during the week whilst the Mother was studying. At the end of that period the Mother resumed her relationship with Mr Packer and they married in 2008.
The Father identifies Christmas time in 2006 as the commencement of difficulties he encountered with the Mother in his spending regular time with the child by agreement.
In 2007 the Father engaged a solicitor to correspond with the Mother to negotiate regular visits but difficulties in making regular arrangements apparently persisted to the point that the Father filed his Initiating Application in the local court on 29 June 2007. That proceeding was transferred to Town X and later to the then Federal Magistrates Court.
In about July or August 2007 interim orders were made to the effect that the Father would spend each Wednesday with the child and every second weekend with changeovers for those visits to take place at a town about half way between the parents’ respective homes.
The proceedings referred to led to a trial culminating in orders being made by Federal Magistrate Jarrett (as Judge Jarrett then was), on 17 March 2008, amended on 12 May 2008.
By the time of that trial the Mother was agitating a number of concerns about the Father in terms of his parenting capacity. These included allegations to the effect that the Father was a regular user of cannabis; that he suffered mental health issues; that the accommodation on his property was sub-standard, unhygienic and posed a risk to the child’s health; that the drinking water on the Father’s property was contaminated and dangerous; that the Father was controlling, abusive, angry and was prone to lose his temper. There also seem to have been issues agitated by the Mother about the Father’s income earning capacity and the suggestion at least that the Father was motivated by child support issues in terms of the time he sought to spend with the child.
The orders made by Federal Magistrate Jarrett on 17 March 2008 after a contested trial (as amended on 12 May 2008) provided for the parents to have equal shared parental responsibility for the child and essentially for alternate week about time for the child to live with each parent until the child commenced fulltime schooling in 2009.
The orders provided that upon the child commencing fulltime schooling in 2009 he would live with the Father on alternate weekends from after school on Friday to before school on Monday as well as for one-half of all school holiday periods. The orders otherwise provided for the child to live with the Mother.
Thus, in circumstances where the child had primarily lived with the Mother for the whole of his life to that point, from March 2008 until the January 2009, a period of about ten months, the child was placed in an equal shared-care regime. The child had only turned four years of age as at March 2008.
That the Mother was unaccepting of these orders and was opposed to them as not being in the child’s best interests was made clear in her evidence in cross-examination. Amongst her self-described responses were the following:
(a)She was “greatly upset”;
(b)She was “aggrieved” by the outcome;
(c)She regarded the outcome as a “travesty for [the child]”;
(d)The outcome was “an abomination of the child’s rights”;
(e)She was “worried” about the child spending time with the Father;
(f)Following the child’s time with the Father after those orders she was “grief stricken” and “very sad” to the point of crying;
(g)She felt like “being ripped in half”;
(h)She was not successful in all instances from quarantining the child from her worries;
(i)One of her concerns was that the child was “at risk” visiting his Father.
There is clear evidence that throughout the period prior to the 2008 orders and indeed ever since the Mother has been critical of the Father’s home environment and of the view that the living condition maintained by the Father always posed a risk to the child’s health and safety. I am satisfied that the Mother agitated her concerns with the relevant local authority for the Father’s property both before and after the 2008 orders.
An obviously highly inflammatory event is detailed in the Father’s affidavit for trial and I accept his version. This was the Mother’s attempt in June 2007 to trade the Father’s child support liability, past and future and the threatened involvement of the Australian Taxation Office and potential loss by the Father of his property in exchange for the withdrawal by the Father of his then “claim for custody of [the child]” and to, as the Mother put it at the time, see the child “when and where I say”. The Father perceived that conduct as the Mother not placing any value on the child having a continuing relationship with the Father and that perception is understandable.
Whilst it can readily be concluded on the evidence that neither the Mother nor her husband Mr Packer accepted that the determination of the Federal Magistrates Court (as it then was) on 17 March 2008; or that the orders then made were in the child’s best interests; it is important that I record that I do not find that it follows that the Mother’s non-acceptance, reluctance or conclusion that those orders did not meet the child’s best interests in and of itself motivated her conduct thereafter or motivated her to act in opposition to those orders.
In respect of the 2008 orders, an important part of the evidence at trial was the expert family report of Mr L, psychologist, dated 30 May 2011 and his oral evidence. Mr L reviewed relevant material in existence as at the time of his assessment and he undertook interviews of each of the parents, the mother’s husband and the child on 2 May 2011 for the purpose of his report. Mr L’s qualifications and experience are detailed in his report and I accept his expertise as a psychologist and family reporter.
I also consider Mr L’s report to be the product of careful and considered assessment and as reflecting appropriate identification and analysis of the issues as they presented to Mr L at the time. I accept his evaluation of those issues and competing data as appropriate and that his opinions as expressed in the report are soundly based and, subject to specific findings outlined below, can be accepted. As will be discussed Mr L did not purport to forensically investigate the issues of physical and sexual abuse given his awareness of the JIRT investigation and did not purport to give evidence as an expert in child sexual abuse specifically.
Mr L gave oral evidence before me and more will be said about his report and his evidence later but I note at this point that on this particular aspect of the Mother’s response to the 2008 orders Mr L’s report contains the following relevant statements:
24. …the writer considers the following to be possible influencing factors in the dispute:
a. Orders made in 2008 which arguably disturbed [the child’s] sense of security and stability;
b. The deep sense of hurt and wounding that [the mother] is likely to have experienced as a result of these Orders, which affronted her sense of being a good mother;
c. The lack of trust in the capacity of the Court to make child-focused decisions arising from this 2008 decision;
d. The lack of trust in [the father’s] capacity to make child-focussed decisions based on his pursuit of Orders for shared equal care in 2007-2008;
e. The further disruption to [the child’s] stability through his return to substantially reside with his mother at the commencement of his schooling;
f. The anxiety that these events have arguably promoted in both mother and child;
g. The pathologising that now seems to be occurring in both households regarding the other parent;
h. The unhelpful use of inflammatory pseudo-diagnoses in the case of [the mother], based on notes in a Police Officer’s records/notes;
i. A near total lack of trust between the parents;
j. A lack of effective communication between the parents;
k. The potential for both households’ negative views to set up confirmatory biases, making it difficult for either party to make positive in-roads with the other;
l. The paradox inherent in the current situation where a false positive and a false negative both are potentially highly damaging. That is, making a decision to restrict the father’s contact on the basis that abuse has occurred when it hasn’t, versus making a decision for [the child] to have an unfettered relationship with his father on the basis that abuse has not occurred, when it has.
…
44. …I suspect that [the father] does not appreciate how significant it was for [the mother] for [the child] to be effectively taken from her care and placed in his father’s care for half the time when these Orders were made in 2008. Indications subsequent to this that [the father] wants to care for [the child] full-time, I believe, would fuel further anxiety and quite likely loathing in [the mother] for [the father]. His ignoring of her has arguably added insult to the injury, and has possibly contributed to her belief about [the father] being irresponsible and unsafe. It is from this position that she acts to protect her son. It is noted that neither the Department of Community Services nor JIRT are seeking to further inquire into [the mother’s] allegations about [the father].
…
48. It is acknowledged that there would seem to be some ambiguous aspects to [the mother’s] presentation across different contexts. As mentioned above, in interview she was a very pleasant and engaging person. Her letters, too, reflect this and yet there is information from other areas, not just [the father], that suggests [the mother] behaves in ways which contradict the aforementioned presentations. In this sense she is either duplicitous, disingenuous, lacking in insight, or is highly conflicted. I am inclined to the latter explanation, as I consider that earlier decisions in 2008 have been deeply injurious to her sense of self as a mother, and I think it is arguable that ever since, she has been determined to prove that the Court erred in its’ decision making. This, of course, does not fully account for what is happening prior to those decisions, although it is possible that her trust in [the father] as a responsible parent has been an issue for her since [the father] first promoted the idea that there should be shared, equal care. It is my view that when [the child] did go into shared care with his father after spending the first few years of his life substantially in his mother’s care, his sense of security and stability was threatened, and I would expect that exchanges between his parents would have been fraught with anxiety for the child, something that I believe [the mother] would have been highly sensitised to noticing.
As part of his evaluations in his report Mr L observed at paragraph 122:
122. Although both situations as described by the respective parents are possible, it is also possible that there is an undercurrent of hurt which is driving the respective parental narratives. It is my view that [the father] has little to no awareness of the degree of hurt that [the mother] experienced in 2008. Although I accept the possibility that [the mother’s] own actions motivated [the father’s] application for shared care of [the child], I believe [the mother] never likely imagined that a decision would be made to take a four year old child out of a stable environment and essentially where he grew up, to then have to share his care equally with someone [the mother] likely perceived she no longer shared a value orientation with. It is my view that this alarmed her and she has been on high alert ever since. Whenever she experiences [the father] failing to respond to her overtures of peace or ignoring her requests for cooperation or support for travel, her sense that [the father] is self rather than child-focussed is arguably heightened. This makes it easier, I believe, to identify failings and risks associated with [the father’s] care, and cause her to be hypervigilant (sic) and sensitive to anything [the child] may have to say about his father.
In this context there is no doubt that the Mother’s views were, and are, shared by her husband. There are references in Mr L’s report from his interview with Mr Packer of similar reflections upon and responses to the 2008 process as those of the Mother.
For example, at paragraph 63 of his report, Mr L records:
63. …He [[the mother’s husband]] is a very softly spoken man but has fairly strong convictions about what is happening in the current situation, expressing concerns that the system and Courts have acted in a “fail dangerous” rather than “fail safe” way concerning [the child’s] wellbeing.
Mr L also records:
67. …[the mother’s husband] went on to conclude that [the father] is a highly plausible psychopath who had successfully convinced the Court that the problem lay not with him but with [the mother], who, in turn, was being painted as “this psychopathic woman”.
71. …Like [the mother] and [the father], [the mother’s husband] presents in a credible way and he would seem to be genuinely concerned about [the child]. I believe it would be reasonable to suggest that [the mother’s husband] is incredulous of the reactions to his wife’s concerns and is concerned that the system is essentially failing [the child] because of the way his wife is being perceived.
It seems to me that one dynamic from this which needs to be considered is the extent to which each of the Mother and her husband might embellish or exaggerate claims about the Father borne out of the sense of frustration they both feel, rightly or wrongly, to the effect that “the system” has previously failed to respond to their legitimate concerns.
In my judgment this factor was probably in play, and indeed is probably responsible for, the exchange as follows between Mr Tester who appeared for the Father and the Mother in the course of her cross-examination. After Mr Tester had taken the Mother through a number of adverse or negative descriptions she had used of the Father historically, there then was this exchange:
MR TESTER: Can I just ask you if you agree with these. You’ve said that he’s a “drug affected pot smoker”? A: Was that in my last affidavit? Was --- MR TESTER: Well, is that your opinion of him? A: Yes. MR TESTER: Yes. And that he grows pot? A: Yes, he told me many times that he paid for his property by growing pot. MR TESTER: And that he may or may not have killed his previous wives and buried them in the garden? A: Yes, that’s what he said to me. MR TESTER: Is this something you believe to be true? A: I don’t know. MR TESTER: No, okay. You don’t know. You honestly don’t know whether or not [the father] has killed – what was it? Five or six – previous wives and buried them in the garden? A: No, I don’t know. MR TESTER: You don’t know. Could be true? A: I feel like I don’t know who he is anymore. MR TESTER: You’re seriously suggesting that that could be true? A: I don’t know who he is anymore. …
HIS HONOUR: So does the answer to that mean it could be true? A: Well, I don’t think he had wives. He had lots of girlfriends. MR TESTER: And could they be dead and buried in the garden, could they? A: I think what he was trying to get across when he --- MR TESTER: No, no, no. I’m just asking you ---? A: - said that is that it --- HIS HONOUR: No, no. You were asked a question. Answer the question you’re asked? A: Well --- MR TESTER: Could it be true, is what you ---? A: Well, I can’t say whether that’s true. MR TESTER: You don’t discount it, then? A: No.
Given that I do not accept that the Mother actually believes, even as a possibility, that the Father is some kind of serial killer I have considered the legitimacy of concluding, based on this evidence alone, that the Mother is a witness devoid of credit upon whose evidence, as a whole, no reliance can be placed. However, in my judgment the legitimacy of that conclusion rests upon whether it is reasonable to view this evidence in isolation or to analyse it only at face value. I do not consider that would be reasonable because of the dynamic I have already referred to above and for further reasons which will be discussed. But the corollary of that is that necessarily a very cautious approach must be taken to the Mother’s evidence including as to the views she expresses about the Father and her stated bases for such views.
In this context it bears repeating that from separation in January 2004, when the child was a three month old baby, the parents successfully negotiated the Father spending time with the child over a significant period. This included, from the end of 2004 when the Mother permanently relocated to Town X, the Mother allowing the Father to regularly visit her Town X property and to live in the caravan located there. The Mother acknowledged in her oral evidence that the Father’s time with the child in this period included time and periods “unsupervised”, that is, the Father spending time with a baby and toddler as the child then was, out of the Mother’s presence.
It is impossible to reconcile these facts with everything the Mother has had to say, in retrospect, by way of description of the Father. That is, I do not accept that this careful, caring and experienced Mother would leave her young child in the sole care, for any period, of the Father if all she says about him, in retrospect, is true. It is obvious, I find, that the Mother’s firm conviction that the Father has engaged in physical and sexual abuse of the child has brought about reconstruction and distortion in her evidence in this respect. That is reflected in her answer in the above extract “I feel like I don’t know who he is anymore.” I also consider that it is more likely than not that in the 2008 trial proceedings, when she was confronted by the Father’s approach in seeking shared care, the Mother probably emphasised and embellished perceived flaws in the Father in the context of those proceedings.
However, in my judgment, the Father on the case he advances seek to conflate, unfairly, the Mother’s dissatisfaction with the outcome of the 2008 proceedings with the allegations arising in the latter part of 2010.
The 2008 orders were made on 17 March 2008. Shared care, in terms of week about time, occurred in the 2008 year and ended in January 2009 with the child commencing school at the beginning of 2009. From the Mother’s perspective, shared or equal time had to be the worst feature of the 2008 orders, but equal time had ended by the beginning of 2009.
Moreover, correspondence attached to the Mother’s affidavit over the period from and including 2008 until about 2010; and the evidence of the Mother and her husband about that correspondence and their collective approach; which evidence I accept on this issue; does not reflect consistent or steely determination to frustrate the 2008 orders or the Father’s time or relationship with the child. To the contrary, there appears to be some effort on the part of the Mother and Mr Packer to achieve a workable relationship with the Father.
Each of the Mother and her husband attest to efforts made between 2008 and 2010 to improve communication with the Father for the child’s benefit and that evidence includes that over a period of about a year, on every fortnight a letter was written to the Father about the child and inviting his input into certain decisions.
The Father acknowledged receiving those letters and gave oral evidence that he responded only to about half a dozen of them. It would seem that the Father was prepared to put his own mistrust of the Mother before any cooperative effort that may have assisted the child. In that context, his complaints about the Mother seeking professional assistance for the child ring somewhat hollow.
This is not to say that there did not continue to be very significant tensions and points of contention, as the correspondence reflects, nor that the experience of the 2008 litigation, for all parties concerned, did not have residual effects. An obvious example is the repeated attempts by the Mother and Mr Packer to secure the Father’s cooperation in the child being provided with a passport so that he might holiday with the Mother and her husband in New Zealand. The Father’s lack of cooperation in this respect appears unreasonable. Likewise the involvement of the child in the process in him being involved and asking for the Father’s consent was undesirable in that it left the child to conclude that it was his Father’s fault that he did not have the holiday experience, something he was apparently looking forward to.
Another example is that in 2009 the Father brought civil proceedings for trespass against the Mother arising out of events in 2007 when the Mother caused photographs to be taken at the Father’s property in an attempt to demonstrate in the 2007/2008 proceedings that the Father’s living conditions were unsafe or unsatisfactory for the child. That litigation was settled by an agreement involving the Father’s then accumulated child support arrears being extinguished.
However, the correspondence also reflects that from time to time the adults consented to arrangements outside the strict terms of orders, which arrangements best met the child’s interests. An example was the Mother allowing the child to spend weekends with the Father when what is known as the “billycart derby” was being held in the Father’s local area and was an activity the Father supported and which the child enjoyed.
In short, I consider that there is a lack of sufficient temporal connection between the 17 March 2008 orders, and the arrangements dictated by those orders, and the disclosures made in the latter part of 2010 as to make the connection the Father seeks to draw tenuous at best.
In this respect, whilst Mr L suggests in one of the quotations extracted above that it is “arguable” that ever since the 2008 orders the Mother “has been determined to prove that the Court erred in its decision-making” I consider that any such determination only crystallised with the events of 2010 and the Mother’s interpretation of, and responses to, the child’s anxiety and thereafter statements he made to her.
It is true that by no later than 2008 the Mother had caused the child to commence engaging in what was described as “sand play therapy” with a person known as “Ms Z”. However, as Mr L observes in his report, it was likely de-stabilising for the child to move from his mother’s primary care up until the 2008 orders to shared care for the balance of the 2008 year, and then back to the Mother’s primary care from the beginning of 2009. I do not consider the Mother can legitimately be criticised for engaging Ms Z, or later other professionals such as Ms J, psychologist, when it appeared to the Mother that the child was experiencing anxieties. That is so even if, as Mr L postulates, those anxieties were at least in part absorbed by the child from the Mother.
Moreover it is clear that the child had some learning difficulties and an auditory processing problem amongst a range of health needs the Mother addressed with her husband’s assistance in the period prior to 2010 and ongoing.
Whilst the relevant events of 2010 will be discussed separately below suffice to note here that the evidence of the Mother and Mr Packer is that after spending the Christmas 2009/2010 block holiday period of about 23 nights with the Father, the child’s demeanour had significantly changed. He is described as having become withdrawn, irritable and extremely anxious. He is described as returning to bed wetting and experiencing night terrors and becoming very clingy to his Mother. He began to complain that he no longer wanted to go to school or catch the school bus.
It is to be observed that even taken from the correspondence annexed to the Mother’s affidavit from as early as 2008 there was recognition that the parental conflict was impacting upon the child. Also there cannot be much doubt that the child was well aware of the negative views the Mother and her husband held about the Father and conversely was aware of the Father’s negative views of Mr Packer and the Mother. Complaints about that on both sides are reflected in the historical correspondence referred to.
I find it probable that whatever other pressures may have existed, by the beginning of 2010 the child was well aware of the parental conflict and well aware of the feature that despite his love and affection for the important adults in his life they were at odds with each other and he had to transition between households holding opposing views. As but one example, the child was later to tell Detective K in the 6 January 2011 interview to the effect that the Father hurt his feelings by saying “mean things about [Mr Packer]”, a reference to the mother’s husband.
The Father agitates a case to the effect that sometime in 2010 the Mother resolved that the child would not be spending the block holiday period at the end of that year pursuant to the orders and that her resolution in that respect and the anxiety she had about that prospect explains what was to follow in terms of the allegations of abuse arising. That is, that a motivating factor was the Mother’s determination not to have the child spend the block holiday period at the end of the 2010 year provides the explanation for the Mother “coaching” the child to make allegations of physical and sexual abuse.
On the contention that the child was intentionally coached by the Mother to make fabricated disclosures there is evidence which I accept that the Mother and Mr Packer had planned an overseas trip from August 2010 at the end of the 2010 year and whilst they had initially wanted the child to accompany them their plan was to travel there in that holiday period even if the Father’s consent for a passport for the child was again not forthcoming. I accept the Mother’s evidence and that of her husband that they had bought and paid for their overseas travel some months prior to December 2010. I find that to be irreconcilable with the theory espoused on the part of the Father as to cause and effect in the manner described. However, for reasons which will be discussed the Mother’s planned trip had relevance to the child’s anxiety.
By 9 December 2010 the Mother had received from the child all of the disclosures summarised above that will be discussed, save for the allegation of digital penetration which came much later on 18 July 2011. On the Mother’s evidence it was sometime in early December 2010 that she resolved, in light of the disclosures that had been made by the child, to “contravene” the existing orders.
That led to a recovery order being obtained on an ex parte basis on behalf of the Father. The Mother refused to hand the child over to police and took the drastic step of going into hiding with the child for some weeks to avoid that order. I find that to be a reflection of her firm conviction and belief by that time that the child had been physically and sexually abused by the Father and that she had to protect him. As earlier noted it was on 6 January 2011 that the interview with the child by Detective K took place.
I record here that whilst the submissions of the ICL proceed on the footing that it was only on 18 July 2011 when the disclosure of digital penetration was made did the Mother and her husband tell the child that he was the victim of physical and sexual abuse. However, on Mr Packer’s evidence that belief was formed as soon as there had been disclosures of both urinating and bottom washing (in a yucky way). Mr Packer’s evidence is that the child was told soon after both of those disclosures had been made. They had both been made by 9 December 2010.
On 10 January 2011 the Mother filed her Initiating Application in the then Federal Magistrates Court and on 22 February 2011 Federal Magistrate Demack (as her Honour then was) made orders for, inter alia, Ms D, family consultant, to provide that court with a short report and for interviews to take place with Mr L for the purpose of his preparation of a family report. The matter was adjourned until 15 March 2011.
On 15 March 2011 Federal Magistrate Demack made an order restraining the Mother from taking the child to any further attendances upon any therapist, psychologist or counsellor; and an order was made for the child’s interests in the proceedings to be independently represented by an Independent Children’s Lawyer.
On 23 March 2011, after a contested interim hearing, Federal Magistrate Demack ordered that the orders of 17 March 2008 (as amended on 12 May 2008) were to recommence. Her Honour dismissed the Mother’s application for the child’s time with the Father to be supervised and dismissed the Father’s interim application to have the child live with him. Whilst it seems that the child spent time with the Father in April and May 2011, as is reflected in the further order made on 25 July 2011 by Federal Magistrate Demack, the Father was not spending time with the child by the time of that order and by that date the Mother had advanced by affidavit the further disclosures of digital penetration, which will be discussed, said to have been made by the child on 18 July 2011.
In considering the content of Ms D’s report it is to be borne in mind that as at 1 March 2011 when Ms D undertook her interviews, the child had not seen the Father since the preceding November and in respect of Mr L, he undertook his interviews on 2 May 2011 in circumstances where the Father had recommenced spending time with the child after the hiatus referred to.
Relevantly here the Father made an election in May 2011 to cease all contact with the child. Following that election not only did the Father not see the child but he did not telephone him nor send him any cards or gifts. On his evidence the Father had no opportunity to explain to the child why he had chosen to stop seeing him. In effect, the Father refused to submit to the Mother’s demand for supervised contact pending a final trial. Whilst the Father gave evidence to the effect that there was no need for supervised contact or time the fact is that it was at the Father’s election that maintenance of any relationship with the child ceased at that time.
Important context in which the child’s statements are made
There are, I find, some fundamentally important factors by way of context bearing upon when and in what circumstances the child has made statements relevant to assessing their reliability.
Such context applies both to the statements made by the child in the latter part of 2010 and then to his subsequent disclosure on 18 May 2011 that what he had previously described as “yucky” bottom washing actually involved digital penetration.
On the evidence, particularly that of Mr Packer earlier referred to both he and the Mother held firm and unequivocal views by early December 2010 that the child had been physically and sexually abused by the Father. On the evidence that must have been by no later than about 6 December 2010. By that date they had received the disclosures about “yucky” bottom washing and urination and both referred to this in their evidence as confirmation for them that sexual abuse had occurred.
Drawn from Mr Packer’s evidence in cross-examination it thus was as early as soon after 6 December 2010 that the child was told that what was happening to him was child sexual abuse and was absolutely wrong. As Mr Packer put it:
We told [the child] that what was happening to him was child sexual abuse. We told that it was absolutely wrong and that it was sexual abuse.
The child also knew then or at about that time that the Mother had resolved to “contravene” the existing orders as he used this formal language in his interview on 6 January 2011 with Detective K. He states to Detective K, “mum has contravened the court orders”. He also knew that his mother would only countenance “supervised contact” as he likewise used that language. Moreover, relevant to his interviews or interactions with professionals in December 2010 and earlier the child, asked by Detective K about the people he had seen and why he had talked to them, the child explained, identifying a list of people, that he has talked to them “so I don’t have to go to pappa’s” and to have those people on “our side” with reference “court”.
Given this context and all that had occurred up until the interview by Detective K on 6 January 2011 it cannot reasonably be concluded that what the child relayed in that interview was uninfluenced, or unaffected, by many external influences including the child’s by then numerous discussions with the Mother and his knowledge of her views. He reflects that in many of the statements he made to Detective K. Moving then to the Ms D interview on 1 March 2011 it is clear from what the child told Ms D that the child was well aware of the Mother’s position that further time with the Father be in a supervised setting.
However, as earlier referred to, Federal Magistrate Demack’s orders restored the prevailing orders in terms of time with the Father. The child can have been in no doubt about the dismay of the Mother and her husband about that outcome.
It is then clear on the evidence that the mother’s husband was firmly of the view by no later than May 2011 that the “yucky” bottom washing by the Father with his hand or hands was not limited to, as Mr Packer put it, “anal fingering” in terms of touching the child’s anus but included “digital insertion”.
The mother’s husband agreed in his cross-examination that he was firmly of the view that digital penetration or digital insertion as he put it was involved despite the child not ever having made that allegation to that point. Mr Packer shared his view with others as he acknowledged in cross-examination and that included the family report writer Mr L. He told teachers at the child’s school that the Father was a paedophile. Exhibit 25 being the school records reflects that there were concerns about the mother’s husband expressing these views at the school.
It goes without saying that the Mother respected any view of her husband not only because he was her husband but also because he was an experienced medical professional. The Mother was already of the firm conviction that the child was exposed to sexual abuse when with the Father. From the child’s perspective he was plainly aware of and responsive to his mother’s anxieties.
Out of those dynamics the child then discloses, on 18 July 2011, for the first time not just “yucky” bottom washing but disclosed to the effect that his father “put his fingers up my bottom”. That disclosure then has the added detail of the experience being painful, not something that formed part of the child’s previous disclosures when speaking about “yucky” bottom washing. That is, in early disclosures there is no reference by the child to pain. The early disclosures are to the effect that the child resisted or protested to the Father to stop because he was old enough to wash himself. This evolves to protests being because “it hurt” something which only became part of the disclosure allied with the statement that the Father was inserting his fingers.
Importantly, the evidence is that the child is said to have made that disclosure on 18 July 2011 to each of, first, the Mother then separately to Mr Packer and otherwise on the same day to both his older half-sibling Ms M and to Ms U, the Mother’s best friend.
Obviously all of those discussions occurred prior to but shortly before the JIRT interview that took place on 28 July 2011.
The finding I make, that the Mother has a resolute belief in the allegations, supported by the shared belief of her husband Mr Packer and by her now adult children which belief cannot be characterised as irrational or baseless, resonates with many of the “best interests” considerations.
The Mother is undoubtedly the child’s primary attachment figure, and all else aside, he has consistently expressed his desire to live with the Mother. I take into account his age at the time of relevant reports but there is no evidence that an outcome of the child living primarily with the Father would be in accordance with his own views.
The submissions of the ICL and the Father proceed on the footing that by removing the child from the primary care of the Mother, that will thus effectively shield the child from his Mother’s anxieties and her views about the Father.
It would, I find, be untenable to contemplate that henceforth the child would spend only supervised time with the Mother, his primary attachment figure. That would be the only means to attempt to prevent any exposure by the Mother to the child of her views, in theory, but even then I doubt that would succeed. To conclude that the child would be accepting of a decision that saw him in the primary care of the Father when he is aware of the Mother’s position and beliefs, defies reality.
On the proposition that the child’s time with the Mother is temporarily suspended, what then? That is, once the child again spends unsupervised time with the Mother, how is it suggested that the child would be protected from her views or her probable abject anxiety?.
This case is, to use an adjective used by Mr L “diabolical”. It is a case, in terms of outcome, involving the “least worst” option for the child.
Ms Smith of Counsel for the ICL put this proposition to Mr L in cross-examination:
Q:If the court were to find that there was no unacceptable risk of harm for [the child] in his Father’s care, but the Mother is unlikely to promote the child’s relationship with the Father, would you support [the child] moving from his Mother’s predominate care to his Father’s?
Mr L’s answer was a straight “no” to that question. Asked to explain why that option was not supported by him, he referred to the importance of the child’s primary attachment, being the Mother. In the course of that answer he said:
I think attachment is a critical issue in this context, and as much as the Mother’s behaviour may be damaging and most inappropriate, if it is found that he’s not at risk and if it is found that he hasn’t been abused - to change his I don’t think is a solution to the problem.
In further answers on this topic Mr L gave evidence as follows:
… this is, you know – I guess in my mind, it’s a diabolical situation. I don’t see and there’s no easy solution, and I accept everything that your Honour has commented about in relation to the focus that the court must have, and indeed I do too, and it’s from that position that I guess I’m saying it’s trying to look at what would be the lesser of the difficulties, and if the court is familiar with the work of Judith Wallerstein, Wallerstein actually proposed in cases like this, as horrible as it sounds, that sometimes the best thing that a parent can do is gift the relationship back to the other parent and step back, knowing that the relationship perhaps will have some chance of development later into the future but with the maintenance of some form of other contact, you know, through written correspondence and things like that. None of this is ideal. It probably doesn’t help the court while I’m saying it. But I guess I’m trying to think of [the child] too, your Honour, and think how it would be for him to go from an environment where he perhaps has been or, you know, it has been proposed that he is growing up with this terrible situation, going to live in an environment that he has been told is a horrible one for him. The dilemmas are huge.
Whilst I accept the submission from the ICL, referenced to authority, that the Court is not bound by the conclusions of an expert family report writer, I do accept Mr L’s opinion that in all the circumstances of this case, changing the child’s residence to the Father offers no real solution to the dilemma in terms of meeting the child’s best interests and would probably lead to greater damage for the child.
I appreciate that the ICL’s written submissions pre-dated the available evidence concerning the supervised visits that were ordered about which further affidavits were filed. Whilst firm conclusions on that untested evidence must be expressed with caution, it is clear that over all, this was not a positive experience of the child.
Remembering that the Father had elected not to continue to spend time with the child from May 2011 taken with the feature that the child has been told at least from mid-2011 that his Father has victimised him, there are ready explanations as to why the child might have run away from the Father or climbed a tree and stayed there, away from the Father, for a lengthy period. Whilst on the evidence of the Father and his witnesses there were “glimpses” of the previous relationship, the concerns about the nature of the relationship, given the child’s mindset from mid-2011, are obvious.
I find that the only realistic prospect for the child to have a meaningful relationship with the Father, either currently or more particularly as he becomes older, is in the context of a relationship or time the Mother will support which obviously involves supervised time in Town X via a contact centre or contact supervision service such as that she refers to in her affidavit filed 11 May 2012. I find that such an outcome would best protect the child from both the ongoing parental conflict and from any psychological harm from being exposed to the Mother’s views.
Whilst I have considered each of the relevant s 60CC matters, I find that the nature of the child’s relationships, particularly with regard to the Mother as his primary attachment figure and having regard to his relationships with his half-siblings, and the likely effect of changes in the child’s circumstances, are determinative considerations in the context of this case as far as parenting orders in the child’s best interests are concerned.
In reaching these conclusions, I am mindful that what the child has best taken from the relationship with the Father is the Father’s example of living a sustainable lifestyle and outdoor and physical activities largely impossible in the setting of a contact centre or even under the supervision in a public place of a supervision service. I do not for a moment suggest that this is an overall “good” or positive outcome for the child in terms of best interests. What it is, is the “least worst” outcome in terms of the child’s best interests.
Given that the Mother has historically been substantially responsible for the child’s financial needs and will continue to be so responsible, it is reasonable that the Father fund the costs of the contact centre.
I am mindful that the Father has historically elected not to have supervised time with the child. It may be that he will elect to continue to maintain that position. All I can do is to encourage the Father to think about the future and a time when the child is older and can more reasonably make his own judgments and assessments and form his own views about the important adults in is life.
The Father should also be in a position to receive the child’s school reports and the like and have the opportunity write letters and cards to him.
Whilst the Mother has nominated the child attaining the age of 14 years, as the age up until the child’s time with the Father ought be supervised, I consider that once the child is 13 years of age, a further family report ought be obtained for the parents’ consideration with a view to altering arrangements.
I will include a provision in the orders to the effect that time is “unless otherwise agreed” in the faint hope that at a future point, without the need for court intervention, the parents, in particular the Mother, might re-consider the child’s best interests in terms of time with the Father as he becomes older.
I will also make an order pursuant to s 65L of the Act so that there may be involvement of a family consultant in assisting the parents and in particular the child with the implementation of the orders proposed and supervision of them.
As far as parental responsibility is concerned, on my findings, the presumption for the parents to have equal shared parental responsibility is rebutted. There is no realistic prospect of these parents being able to negotiate consensual agreements for the child and in circumstances where he will remain living in the primary care of the Mother, it would be in the child’s best interests for the Mother to exercise sole parental responsibility for long-term decisions. However, she ought advise the Father and keep him advised of any such decisions to be made and to take into account the Father’s views before such decisions are made.
For these reasons, I make the orders set out at the commencement of these reasons.
I certify that the preceding three hundred and fifty-four (354) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 29 July 2013.
Associate:
Date: 29 July 2013
Key Legal Topics
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Family Law
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Procedural Fairness
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