Galloway and Steele
[2011] FamCA 550
•8 July 2011
FAMILY COURT OF AUSTRALIA
| GALLOWAY & STEELE | [2011] FamCA 550 |
| FAMILY LAW - CHILDREN – Child related proceedings – Whether child at risk in the care of either parent – Allegations initially made by the mother that the child was being sexually abused by the father - Parenting Orders – unacceptable risk – sexual abuse – child abuse – oppositional defiant disorder |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Galloway |
| RESPONDENT: | Ms Steele |
| INDEPENDENT CHILDREN’S LAWYER: | Reid Family Lawyers |
| FILE NUMBER: | SYC | 6615 | of | 2007 |
| DATE DELIVERED: | 8 July 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Fowler J |
| HEARING DATE: | 1, 2, 3 and 4 February 2011, 31 March 2011, and 1 and 8 April 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Hausman |
| SOLICITOR FOR THE APPLICANT: | Slade Manwaring Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Lloyd SC |
| SOLICITOR FOR THE RESPONDENT: | Hamish Cumming Family Lawyers |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Reid |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Reid Family Lawyers |
Orders
The father and the mother have equal shared parental responsibility for the making of major long-term decisions concerning the child, J (“the child”), born on … February 2007. The parent proposing the making of such a decision is to inform the other parent of his or her proposal, and the other parent is then, within seven days, to inform the proposing parent as to whether he or she agrees to the proposal. In the event that the other parent does not agree to the proposal, he or she is also, within the seven day period, to provide to the proposing parent reasons for the disagreement and any alternative proposal. In the event of continuing disagreement, the father and the mother are, within a further fourteen days, to submit their disagreement to mediation by a mediator, who is chosen by the other parent from a panel of three mediators chosen by the proposing parent.
The child live with the father.
Commencing one month from the date of these Orders and for a period of twelve months, the child spend time with the mother, unless otherwise agreed between the father and the mother, as follows:
(a)for a period of five hours each Sunday commencing at such time as is agreed and in the absence of agreement at 10.00 am each Sunday at a place agreed between the father and the mother or, in the absence of such agreement, Location 1, Sydney Suburb 1 NSW [postcode omitted] and
(b)from after pre-school or school, as appropriate, to 5.30 pm on one weekday each week, as nominated by the mother at least seven days in advance, at a park near the child’s pre-school or school or, in the event of inclement weather, Location 2, Sydney Suburb 2 NSW [postcode omitted].
The time spent by the child with the mother pursuant to Order 3 be supervised by a supervisor appointed by S Family Services. The Independent Children’s Lawyer is to do all things necessary to cause S Family Services to produce a report following each period of time spent by the child with the mother, and the mother is to bear the cost of the supervision of that time and the preparation of that report.
The mother attend upon a clinical psychologist recommended by Dr W for the purposes of receiving the following:
(a)counselling in relation to parenting; and in particular dealing with the child’s behavioural problems and
(b)counselling in relation to her relationship with the father as a co-parent and her views about him.
The father attend upon a psychologist recommended by Dr W for the purposes of receiving the following:
(a)counselling in relation to parenting
(b)counselling in relation to his relationship with the mother as a co-parent and
(c)counselling in relation to the management of any grief or distress which the child may experience as a consequence of separating from the mother.
Leave is granted to the Independent Children’s Lawyer to provide a copy of the reports of Dr W made herein and the transcript of his oral evidence in these proceedings to the psychologists engaged pursuant to Orders 5 and 6.
Upon the expiration of a period of eight months from the date of these Orders, the father and the mother attend on Dr W at the joint expense of the parties for the purpose of enabling him to prepare an updated report. That report is to address the following matters:
(a) the child’s relationship with each parent
(b) the impact on the child of the change in his living arrangements
(c)the status of the child’s behavioural disorder and each parent’s capacity to manage the child’s behaviour and
(d)each parent’s willingness to encourage the child’s relationship with the other parent.
Upon the release of the report, the Independent Children’s Lawyer is to arrange a Legal Aid Conference, and the father and the mother are to attend that conference for the purpose of reviewing the parenting arrangements of the child.
Upon the expiration of a period of 28 days from the release of the report prepared pursuant to Order 8, the child spend time with the mother, unless otherwise agreed between the father and the mother or ordered by the Court, as follows:
(a)each alternate weekend from after pre-school or school, as appropriate, on Friday to before pre-school or school on Monday, with the mother to collect the child from and return the child to pre-school or school at the commencement and conclusion of that time
(b)each Wednesday from 3.30 pm to 6.30 pm, with the mother to collect the child from pre-school or school at the commencement of that time and deliver the child to the father at Location 3, Sydney Suburb 3 NSW [postcode omitted] at the conclusion of that time
(c)on one additional weekday each fortnight as agreed between the father and the mother from 3.30 pm to 6.30 pm, with the mother to collect the child from pre-school or school at the commencement of that time and return the child to the father at Location 3, Sydney Suburb 3 NSW [postcode omitted] at the conclusion of that time
(d)from 9.00 am to 5.00 pm on Mother’s Day
(e)from 2.00 pm on Christmas Day to 5.00 pm on Boxing Day in 2011 and
(f)from 4.00 pm on New Year’s Eve in 2011 to 4.00 pm on New Year’s Day in 2012.
Until the child commences primary school, during each calendar year, the child spend time with the mother for up to four additional periods of three days including overnight, as nominated by the mother at least 14 days in advance.
Upon the child commencing primary school, the child spend time with the mother for one half of each school holiday period, including the mid term and Christmas school holiday periods, as agreed or, in the absence of agreement, being the first half in even-numbered years and the second half in
odd-numbered years.
When the child is living with the father for the first half of a Christmas school holiday period pursuant to Order 11, the child spend time with the mother from 12.00 pm on Christmas Eve to 12.00 pm on Christmas Day; and that, when the child is spending time with the mother for the first half of a Christmas school holiday period pursuant to Order 11, the child spend time with the father from 12.00 pm on Christmas Eve to 12.00 pm on Christmas Day.
Notwithstanding any other Order, the child spend time with the parent with whom he is not living or spending time on the child’s birthday as agreed or, in the absence of agreement, from 3.00 pm to 6.00 pm, with that parent to collect the child from and return the child to Location 3, Sydney Suburb 3 NSW [postcode omitted] at the commencement and conclusion of that time.
Notwithstanding any other Order, the child spend time with the father from 9.00 am to 5.00 pm on Father’s Day.
Unless otherwise specified in these Orders, the mother collect the child from Location 3, Sydney Suburb 3 NSW [postcode omitted] at the commencement of the time spent by the child with her pursuant to these Orders and return the child to Location 4, Town 1 NSW [postcode omitted] at the conclusion of that time.
After the expiration of the period during which the time spent by the child with the mother is to be supervised pursuant to Order 4, the child spend time with a parent for a period of 14 days on two occasions each year subject to that parent providing at least seven days’ notice to the other parent on each occasion and these Orders be suspended for that period. The time otherwise spent by the child with the other parent during that period is to be made up as soon as practicable.
If the mother is unable to attend upon the time to be spent by the child with her during school holiday periods pursuant to these Orders, she notify the father in writing as soon as practicable and the child shall in that event remain in the care of the father.
Each parent be at liberty to communicate with the child by telephone at reasonable times and under reasonable circumstances while the child is in the other parent’s care, and that the other parent facilitate such telephone communication. Each parent is to keep the other parent informed of his or her contact number for this purpose.
Each parent is restrained from denigrating, or permitting another person to denigrate, the other parent in the presence or within the hearing of the child.
The child shall be known as “[J Steele-Galloway]” and each party shall be and is hereby restrained from registering or referring to the child’s family name as any name other than “[Steele-Galloway]”.
By consent the child J (a male) born on … February 2007 be removed from the Watch List.
Pursuant to s65L of the Family Law Act 1975 (Cth) a Family Consultant as nominated by the Manager, Child Dispute Services of the Sydney Registry of this Court, give to any party to these Orders such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, these Orders for a period of 12 months from the date of these Orders.
The Independent Children’s Lawyer’s application for costs is listed for mention before Justice Fowler at 9.30 am on Thursday, 11 August 2011.
IT IS NOTED that publication of this judgment under the pseudonym Galloway and Steele is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 6615 of 2007
| Mr Galloway |
Applicant
And
| Ms Steele |
Respondent
And
| Reid Family Lawyers |
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
Before the Court are proceedings between parents with respect to the parenting of their child, J (“the child”), born in 28 February 2007.
The Court is to determine issues as to with whom the child should live, what time he should spend with the other parent and whether conditions should be imposed upon such time spent by him with the other parent.
The determination of those issues involves a consideration of allegations of physical and sexual abuse of the child at the hands of the father; and, in the event that the Court does not find that such abuse has occurred on the evidence, a determination of whether there is an unacceptable risk of harm to the child in the father’s care. Given the assessment by the single expert that the child has an insecure and anxious attachment to the mother and a secure attachment to the father, the determination of those issues also involves a determination of whether there is an unacceptable risk of harm to the child in the mother’s care.
This latter issue assumes greater significance for this child who has shown signs of oppositional behaviour in the mother’s care to a greater extent than in the father’s care, and where the single expert’s opinion is that the father’s parenting style best deals with such a behavioural disorder. Questions thus arise as to the mother’s capacity to care for the emotional needs of the child.
In determining the issues as revealed above, it is also necessary for the Court to determine, inter alia, each parent’s capacity and willingness to facilitate a close and continuing relationship between the child and the other parent.
Presently, the child lives with the mother and he spends time with the father each Saturday from 9.00 am to 6.00 pm under the supervision of the paternal grandmother.
The Background Facts
In 1971, the father was born.
In 1973, the mother was born.
In September 2004, the father and the mother commenced a relationship with one another.
In September 2006, the father and the mother separated on a final basis. The mother asserts that the relationship between them ended when she informed him that she was pregnant.
In February 2007, the child, J was born.
Between the date of the child’s birth and April 2007, the father visited the child four times each week for a period of two hours.
In April 2007, the father commenced paying assessed child support of a modest amount.
Between April 2007 and August 2007, the father visited the child on Sundays and Mondays.
On 10 August 2007, the father and the mother entered into a parenting plan in relation to the child.
On 20 September 2007, the father filed an Application for Final Orders in the Federal Magistrates Court of Australia seeking parenting orders.
On 4 October 2007, Interim Orders were made which, inter alia, permitted the mother to relocate with the child to Town 1.
In January 2008, the child spent 12 days with the father at Town 2.
In May 2008, the mother relocated with the child to Town 1 and the child commenced pre-school. The child then showed signs of very aggressive behaviour towards other children and the pre-school procured the advice of a psychologist as to how to deal with the child’s behaviour.
The mother asserts that, between mid 2008 and early 2009, the child was hysterical, uncontrollable and inconsolable when she collected him after time spent by him with the father.
On 24 July 2008, Final Orders were made by Federal Magistrate Altobelli which, inter alia, provided that the father and the mother have equal shared parental responsibility for the child; that the child live with the mother; and that the child spend time with the father on an increasing basis whereby the child would spend time with him, commencing in September 2009, each Wednesday from 4.00 pm to 7.00 pm, each alternate weekend from 4.00 pm on Friday to 5.00 pm on Sunday, for a period of three hours on an additional weekday as nominated by the father and on other special occasions. Pursuant to those Orders, the child would then spend time with the father, commencing in March 2011, for four additional periods of three days and two nights as nominated by the father in substitution for the period of three hours on an additional weekday. Provision was also made in those Orders for the child, upon him commencing school, to then spend time with the father each Wednesday from 4.00 pm to 7.00 pm, each alternate weekend from after school on Friday to before school on Monday during the school term, for half of each school holiday period and on other special occasions.
In January 2009, the child spent 12 days with the father at Town 2.
In June 2009, the mother sought medical advice from a doctor as to whether the child’s misbehaviour may be connected with his poor sleeping. The father informed the doctor that the child had not exhibited such behaviour when in his care.
Towards the end of June 2009, the child was seriously injured in an accident in which a piano fell on him. As a consequence, he was put in a drug-induced coma in intensive care for a period of five days and remained in hospital for a further two days. The father visited the child each day from 8.00 am until late at night. The mother asserts that the father monopolised the child’s time during that period and that she was thereby excluded. It is also said by the mother that the child did not acknowledge her in any way during that period. On discharge of the child from the hospital, it was advised that the child was not receiving all essential nutrients from his diet and that his restrictive diet should be discontinued.
In August 2009, the mother took the child on holiday in Queensland. The child spent time with the father during that holiday.
In September 2009, the child spent one week with the father in Queensland.
At the beginning of October 2009, the child was hospitalised for an operation in which his tonsils and adenoids were removed. The father visited the child during that time. The mother again asserts that the father sidelined her and that the child did not acknowledge her in any way when the father was present. The mother also admits to slapping the father in an altercation between them.
In October 2009, the mother began socialising with Mr C outside of the church which they attended.
Towards the end of October 2009, the maternal uncle died. The child spent 12 days with the father at Town 2. During that time, the father informed the mother that there was something wrong with the child’s penis.
The mother asserts that, towards the end of 2009, the child’s behaviour deteriorated and he became increasingly aggressive towards other children, including hitting, biting and scratching them.
The mother asserts that, in January 2010, subsequent to the child spending time with the father, the child awoke from sleep distressed and he said words to the effect, “Daddy is really angry … He hit me bad … Bash, bash, bash ...”. The child allegedly hit his legs and head while repeating the words, “Bash, bash, bash”, before being settled.
In February 2010, the child commenced attending another pre-school where he again exhibited aggressive behaviour.
The mother asserts that, on 2 February 2010, the child said to her words to the effect, “Daddy has lots and lots of teddy bears ... We played with them … Daddy hurts the bears”.
On 5 February 2010, Ms T, an occupational therapist assessed the child as suffering from Sensory Integration Disorder.
The mother asserts that, on 8 February 2010, the child was uncontrollable and that he hit, kicked and punched her subsequent to communicating by telephone with the father.
The mother asserts that, on 11 February 2010, the child, after wetting his pants, said to her words to the effect, “Daddy hit me … Really big like this … He hit me on my cheeks … Daddy’s perfect”.
The mother asserts that, on 18 February 2010, the child said to her words to the effect, “I want to kill Daddy because Daddy is a poo-bum”. It is asserted by the mother that he then said words to the effect, “I got a sore penis because Daddy put a knife and scissors in my penis”, and that, when she asked the child whether the father had touched the child’s penis, the child said words to the effect, “Yes … Daddy touched my penis lots of times … Daddy tickles my bottom … Daddy has a big one...”
The mother asserts that, at the end of February 2010, subsequent to the child spending time with the father, the child said to her words to the effect, “I was a silly duffer mum. I weed on the carpet and Daddy smacked me really hard”.
On 1 March 2010, a pre-school teacher informed the mother that the child had kicked other children that day. The child later urinated on the floor of the mother’s friend’s home, and he punched Mr C and urinated twice on his bedroom floor and on a toy given to him by Mr C.
The mother asserts that, on 8 March 2010, the child tried to cuddle her in an intimate way in bed, take her clothes off so he could do so in the nude, and rub his face on and kiss her on her bottom.
In March 2010, the time to be spent by the child with the father was suspended and the mother took the child on holiday in Queensland. The mother asserts that the child’s behaviour deteriorated after about four days. The mother declined the father’s request for make up time.
The mother asserts that, on 25 March 2010, before changeover, the child said to her words to the effect, “I want to live with Daddy but Daddy said no”, and that, at changeover in the presence of the father, the child said to the father words to the effect, “Daddy I want to live with you but Mummy will miss me”.
The mother asserts that, on 28 March 2010, she was unable to bring the child to church due to his behaviour. He is reported to have urinated and defecated on the floor and to have hit the mother.
On 29 March 2010, the mother telephoned the child abuse prevention hotline of the Department of Human Services, Community Services (“DOCS”). She alleges that the person with whom she spoke said that the concerns which she expressed in the lengthy conversation would be reported because the child appeared to be at risk of harm and his behaviour was typical of an abused child. When collecting the child from pre-school later that day, the mother was told that the pre-school intended to procure an assessment of the child by a psychologist. On returning from pre-school later that day, the child threw a knife, which had been left by Mr C, at the mother.
It is asserted that, on 1 April 2010, when the child was in the care of
Mr C, the child took his top off, tried to cuddle and kiss Mr C in a sexual way, and then took his pants off and asked Mr C to take his pants off too. Mr C directed the child to put his clothes on. Upon Mr C returning the child to the mother and informing her of the incident, the mother informed the paternal uncle of the incident and the paternal uncle advised her to report it to DOCS.
On 2 April 2010, the mother cancelled the time to be spent by the child with the father due to the child being unwell. The mother then reported the incident referred to in the paragraph above to DOCS.
On 3 April 2010, the mother told the child that he would not be spending overnight time with the father for some time. She alleges that the child in response said to her, “Thank you”. The mother then unilaterally suspended the time to be spent by the child with the father until such time recommenced on 26 June 2010 pursuant to Orders of 11 June 2010.
The mother asserts that, on 4 April 2010, the child awoke from sleep and said to her words to the effect, “Mummy I do it … I do it … I do it … I tickled him … I tickled the man …”
On 6 April 2010, the father was informed by the police that all time to be spent by the child with the father would be suspended pending an investigation. The father says that the paternal uncle told him that he did not want his family involved.
On 7 April 2010, the father attended Wollongong Police Station and spoke to DOCS.
On 13 April 2010, the father was interviewed by telephone by two officers of DOCS.
On 14 April 2010, the child was interviewed by two officers of DOCS for a period of approximately two hours. Subsequent to the interview, the father was advised that the matter was determined to be “inconclusive”, that the investigation would therefore be closed and the time to be spent by the child with him should resume.
Mr C alleges that, in mid April 2010, the child put his hand up his shorts and touched his genitals, and that Mr C said to him words to the effect, “We don’t touch those parts”.
On 15 April 2010, the father’s solicitors advised the mother that the father would be seeking that telephone communication between the child and him recommence.
Between 16 April 2010 and 22 April 2010, the mother failed to facilitate contact to have taken place between the child and the father.
On 4 May 2010, the child hit another child with a stick at pre-school, causing that child’s fingers to bleed.
On 4 May 2010, the father filed an application in the Federal Magistrates Court of Australia, seeking orders for the recovery of the child and the appointment of a single expert.
On 11 May 2010, the child’s pre-school arranges for the child to be observed by Ms R, a psychologist. Ms R subsequently informed the father that she did not observe any behaviour that was “out of bounds” and therefore there was no need for a report to be written.
Mr C alleges that, on 13 May 2010, he observed the child throwing a knife towards the mother and then towards him.
In late May 2010, the mother commenced attending upon Ms U, a psychologist to assist with the management of the child’s “trauma related symptoms and emotional deregulation”. She did not advise the father of those attendances.
On 11 June 2010, Interim Orders were made by Federal Magistrate Baumann providing, inter alia, that Dr W be appointed as single expert and he prepare a report; that the child spend supervised time with the father, commencing on 19 June 2010, on a two week cycle, in the first week each Saturday from 9.00 am to 2.00 pm and in the second week each Saturday from 9.00 am to 12.00 pm; that the paternal grandmother be permitted to attend on that time; that the child not be brought into contact with Mr C and that the matter be transferred to the Family Court of Australia.
On 19 June 2010, the mother failed to facilitate the time to be spent by the child with the father pursuant to the Orders of 11 June 2010. She refused to facilitate such time until she met with the supervisor of that time. It was not until 26 June 2010 that the child spent time with the father in accordance with the Orders of 11 June 2010.
The mother asserts that, subsequent to the child recommencing spending time with the father, the child’s behaviour deteriorated.
Between 26 June 2010 and 11 December 2010, the child spent time with the father on 17 occasions and the mother failed to facilitate the time to be spent by the child with the father on at least one occasion.
In August 2010, the mother raised concerns about the supervisor of the time spent by the child with the father. Further allegations were made to DOCS and the mother informed the father that the child would not be available to attend on time to be spent by him with the father until the pending investigation was concluded. DOCS subsequently advised the father that it was the mother’s decision for such time to be suspended.
On 18 August 2010, the father filed an Amended Initiating Application in the Family Court of Australia, seeking orders that the child live with the father and that he spend time with the mother as agreed or ordered by the Court. The time to be spent by the child with him was later restored subject to the condition that the paternal grandmother not attend on such time.
On 23 August 2010, Dr K issued a report in which he diagnoses the child as suffering from severe conduct disorder.
On 1 September 2010, Interim Orders were made by consent providing, inter alia, that the time to be spent by the child with the father be suspended between 16 September 2010 and 6 October 2010 so that the mother could take the child on holiday in Queensland; that the child otherwise spend time with the father, supervised by S Family Services, on a two week cycle, in the first week for a period of two hours and in the second week for a period of three hours; and that the paternal grandmother be restrained from attending on such time.
On 27 October 2010, on an occasion of supervised contact with the father, the child reported, “You (the father) are going to take me away” and “Mummy said Daddy was not allowed to help me to the toilet”.
On 1 November 2010, Dr W issued a report.
On 22 December 2010, Interim Orders were made which, inter alia, varied the time to be spent by the child with the father so that the child would spend time with the father, supervised by the paternal grandmother, each Saturday from 9.00 am to 6.00 pm.
On 23 December 2010, the mother filed an application seeking that the Orders of 22 December 2010 be stayed. That application was later withdrawn.
Between the making of the Interim Orders of 22 December 2010 and when the matter was next before the Court on 12 January 2011, the mother failed to facilitate the time to be spent by the child with the father on at least three occasions.
The matter was listed for final hearing before the Court commencing on
1 February 2011 for four days and then on 31 March 2011 and 1 and 8 April 2011 until it concluded.
The Issues to be Determined
The Court is asked to determine with whom the child should live; and, as part of that determination, what risks, if any, are attendant upon the child living with the father or the mother.
The Court is also required to determine to what extent the child should spend time with the parent with whom he does not live; and what, if any, conditions should apply to that time in terms of supervision.
The Court will further consider what other orders might be made which would advance the welfare of the child.
The Evidence
Each of the father and the mother filed affidavits setting forth the evidence, inter alia, summarised above.
The father in addition filed an affidavit of his mother.
The Mother’s Affidavit Evidence
The mother in addition to her own affidavits of which there were two, filed affidavits of the father’s brother and his wife, Ms G and N Galloway; and a former friend of the father, one Ms S.
In addition she filed an affidavit of her friend Mr C referred to above and a Dr E who was a doctor who attended the mother around the time of her confinement with the subject child.
The mother’s evidence-in-chief was set out in two affidavits: one filed on
29 January 2011 and one filed on 31 January 2011.
Dealing with the latter affidavit filed shortly before the trial that affidavit was primarily directed to the sexual conduct and practices of the father and the mother during the period of their relationship.
It asserted that the father used nicknames to the mother which might have been thought to have a sexual connotation. The father denied that they were other than terms of endearment and the court accepts that this was so.
The mother alleged and the father did not deny that he had been employed as a young man as an escort in an employment in which sometimes sexual favours were provided for money.
The father’s employment in this occupation had been some time ago and for a relatively short period.
Given, inter alia, that it occurred so long ago, the Court does not consider that it is a matter of significant weight in relation to the current arrangements to be made for this child.
The accounting by the mother of the sexual practices and exchanges between the father and her is extensive. She conceded under cross-examination that they were consensual and not complained of at the time. They were readily openly and honestly conceded by the father. Dr W said of them that they were in the normal range of consensual adult sexual behaviours. The Court does not find that they have any relevance to the issues that it has to determine in this case.
Reference was made in the mother’s affidavit to the allegation that the father left the S School and it was alleged that he had stolen some identification documents from a police station and had sold them to the children at school. This business enterprise was not credit worthy but occurred a long time ago when the father was very young and the Court finds it was not relevant in the Court’s view to the issues requiring its determination.
It was asserted that the father spoke ill of his mother. The father honestly agreed that the relationship between himself and his mother (who also agreed) had been strained. That was not the current situation and the relationship between them appeared to be reinstated to one which was appropriate. Once again, the court considers this a matter of no great significance or weight to the issues which it has to determine.
The mother recounts what she asserts are disclosures of the child as to mistreatment by the father. The father denies the allegations are true. The Court accepts the father’s denials.
The independent expert says that the child is affected by tensions between the parents and that tension would be an encouragement to oppositional behaviour that the mother has experienced. It was the primary cause however of the child’s oppositional behaviour, he said, that the mother lacked consistency in the setting of boundaries for the child and maintaining them effectively.
The mother’s primary affidavit sets out a history of the relationship with the father and the birth of the child. Relevantly she gives evidence that post separation and in April 2010 she suspended the child’s time with the father following advice from the Department of Human Services that there was a likelihood that the child had been abused by the father.
She again sets out the matters of which she was informed by the father as to his strained relationship with his mother. That as has been said is now history and that relationship is restored.
The breakdown of the relationship between the father and the mother was accompanied by an assertion the mother alleges that the father thought that she was exhibiting signs that she had been sexually abused in childhood.
The mother asserts that not only does she not remember ever having been abused but that she cannot recall anyone other than her sister complaining that she had been in that she was touched inappropriately by her grandfather.
The mother recounts the history of the breakdown of the relationship with the father and the consultation with various counsellors which on her account the father continued to find unsatisfactory.
It is alleged by the mother and denied by the father that following one of these sessions he said that he recalled being gang raped by friends of his father and that N Galloway, his brother, was at the time locked in a cupboard. The Court accepts the father’s denial of that allegation.
It is however not denied that the father’s brother N Galloway was said to have recalled as a part of a “recovered memory” an imprecise memory of something sexual being done (he could not say what) to his brother whilst he was in a cupboard later described as a “confined space” at a house at Sydney Suburb 4.
The Sydney Suburb 4 incident was the subject of other evidence. At best it was a vague and imprecise recovered memory of the father’s brother of an incident of which the father had no recollection. An attempt to gainsay that the father had no recall in the Court’s view was unsatisfactory and the evidence did not persuade the Court that the incident occurred or that the father recalled it.
The father’s brother and his wife filed affidavits which are discussed later.
The mother asserts and the father does not deny that at the time the mother announced her pregnancy some thought was given to its termination.
The Court accepts that the child now born is a wanted and much loved child of each of his parents. Indeed, the mother concedes that it was but a short time after the announcement of her pregnancy that the father was expressing excitement about his prospective fatherhood.
It was a short time after this that the father said he was not ready to commit to the mother and the role which fatherhood would impose. The mother met most of the child’s costs.
The mother recounts an incident at a family meeting following the separation in a reminiscence of the father’s mother of her being on one occasion concerned about the father’s mood or behaviour, but the Court takes the view that if such a statement was made it is not of assistance to the Court in making a determination at this time in this matter.
The mother sets out in her affidavit her version of the history of the arrangements for the care of the child and the father’s involvement with the child which was frequent from the time of birth for four days a week up to six hours at a time and on occasions more than that.
The mother says that although she found the visits intrusive she accepted them as being necessary for J’s welfare and notwithstanding her subsequent allegations maintains that the child has a continuing need for time with his father. She says it must occur however under constant supervision because of her fear for the child in the care of the father.
In due course an arrangement for the structuring of time with the father for the child eventuated.
The mother then moved to Town 1 south of Sydney in September 2007. It is in this area that the father’s brother and his wife live. It is clear that they have an ongoing and close relationship with the mother.
The father did not, the mother says, accept her proposed move with equanimity and made it continuingly clear that he saw it as something he did not wish to happen.
The mother deposes as to the financial basis for such a decision. She says that it was a move which offered the opportunity of support from the father’s brother N Galloway and his wife with whom she had developed a close relationship.
She refers to the emotional support provided by the father’s sister-in-law following the birth of the child. The father sought to prevent the move which had been partly proposed for economic reasons by offering limited additional child support.
The father commenced proceedings in the Federal Magistrates Court but the mother was given the opportunity to move to Town 1 by Orders made in October 2007. The proceedings were settled in July 2008 and Orders were made largely by consent.
The July 2008 orders were given effect to by the father and the mother according to the mother without difficulty for the next 18 months or thereabouts:
1.That the parties have equal shared parental responsibility for the child, [J] born […] February 2007 (hereinafter “the child”).
2.That the child shall live with the Mother.
3.That each party shall be and is hereby restrained from altering the child’s residence to any location greater than sixty (60) kilometres by road from the Sydney Central Business District without the written consent of the other party or otherwise by Court Order.
4.That the child shall be known as “[J Steele-Galloway]” and each party shall be and is hereby restrained from registering and or referring to the child’s family name as any name other than “[Steele-Galloway]”.
5.Unless the parties otherwise agree, the child shall spend time with his Father as follows:
Until 1/3/2009
5.1.Each Wednesday from 4pm to 7pm, the Mother to deliver the child to [Location 5, Sydney Suburb 5] at the commencement of such occasions and the Father to return the child to such venue at the conclusion of such occasions; and
5.2.Each Saturday from 9am to 5pm, the Father to collect the child from [Location 6] or another agreed neutral venue at [Town 1] at the commencement of such occasions and the Mother to collect the child from the Father’s home at the conclusion of such occasions; and
5.3.From 9am to 5pm on 24 December 2008.
From 1/3/2009 until 1/9/2009
5.4.Each Wednesday from 4pm to 7pm with the Mother to deliver the child to [Location 5, Sydney Suburb 5] at the commencement of such occasions and the Father to return the child to such venue at the conclusion of such occasions; and
5.5.For 3 hours on any other weekday nominated by the Father and agreed to by the Mother but failing agreement on Thursdays from 1.30pm to 4.30pm with the Mother to deliver the child to the Father’s residence at commencement and collect from the Father’s residence at conclusion.
5.6.Each alternate weekend from 9am Saturday to 5pm Sunday with the Father to collect the child from [Location 6] or another agreed neutral venue at [Town 1] at the commencement of such occasions and the Mother to collect the child from the Father’s home at the conclusion of such occasions;
From 1/9/2009 until 1/3/2011
5.7.Each Wednesday from 4pm to 7pm with the Mother to deliver the child to [Location 5, Sydney Suburb 5] at the commencement of such occasions and the Father to return the child to such venue at the conclusion of such occasions; and
5.8.Each alternate weekend from 4pm Friday to 5pm Sunday with the Mother to deliver the child to [Location 5, Sydney Suburb 5] at the commencement of such occasions and the Father to return the child from such venue at the conclusion; and
5.9.For 3 hours on any other Week day nominated by the father and agreed by the mother but failing agreement on Thursdays from 1.30pm to 4.30pm with the mother to deliver the child to the father’s residence at commencement and collect from the father’s residence at conclusion.
5.10.From 2pm 25 December 2009 (and 2010) to 5pm
26 December 2009 (and 2010) and from 4pm New Years Eve (31 December 2009 and 2010) until 4pm on
New Years Day (1 January 2010 and 2011)
From 1/3/2011 until the child commences school
5.11.Each Wednesday from 4pm to 7pm, the Mother to deliver the child to [Location 5, Sydney Suburb 5] at the commencement of such occasions and the Father to return the child to such venue; and
5.12.Each alternate weekend from 4pm Friday to 5pm Sunday with the Mother to deliver the child to [Location 5, Sydney Suburb 5] at the commencement of such occasions and the Father to return the child from such venue at the conclusion; and
5.13.For any four (4) additional periods of three (3) days and nights, on 14 days notice to the Mother, in addition to and if the Father so desires, added on to, the child’s existing time with him under these orders.
From the time that the child commences school
5.14.During school term each Wednesday from 4pm to 7pm with the Father to collect the child from school at the commencement of such occasions and the Father to return the child to [Location 5, Sydney Suburb 5] at 7pm; and
5.15.During school term each alternate weekend from after school on Friday to before school on Monday with the Father to collect and return the child from his school; and
5.16.For half of all school holiday periods, including mid term and Christmas holidays, such periods to be defined by the school that he attends, and failing agreement as to which half then the first half in even numbered years and the second half in odd numbered years.
5.17.That for the purpose of all NSW gazetted school mid-term school holiday periods, the first half of such periods shall commence at 9am on the first Saturday following the last day of school term and conclude at 5pm the following Saturday and the second half of such periods shall commence at 5pm on such Saturday and conclude at 5pm the following Sunday.
In any period
5.18.Such other and/or further times as the parties may mutually agree in writing.
5.19.On the child’s birthday by agreement for a period of not less than three (3) hours and failing agreement between 4pm and 7pm with the father to collect and return the child from the mother’s residence.
5.20.That notwithstanding any other order hereof:
5.20.1.The child shall live with the mother between 9am and 5pm on Mother’s Day; and
5.20.2.The child shall spend time with the father between 9am and 5pm on Father’s Day; and
5.20.3.Unless otherwise specified, but otherwise notwithstanding any provision to the contrary, when the child is spending time with his Father during the first half of Christmas holidays, the child to live with the Mother from 12 noon on Christmas Eve to 12 noon on Christmas Day, and when the child is living with his mother during the first half of Christmas holidays, the child to spend time with his Father from 12 noon on Christmas Eve to 12 noon on Christmas Day.
6.That unless otherwise specified for the purposes of all handover occasions pursuant to the Orders herein, the Mother shall deliver the child at the commencement of all such occasions to [Location 5, Sydney Suburb 5] and the Father shall return the child to [Location 5, Sydney Suburb 5] at the conclusion of all such occasions or such other venue as mutually agreed in writing as between the parties.
7.That until the child commences school, on two occasions in each calendar year the mother may suspend the time that the child spends with the father provided that:
7.1.She gives the father not less than seven days notice; and
7.2.The period of suspension shall not be longer than 14 days; and
7.3.The Mother shall compensate the Father for lost time at the earliest possible time, and in any event before she next exercises her rights under this order.
8.That in the event the Father is unable for whatever reason to spend time with the child during the New South Wales gazetted school holiday periods that he notify the Mother in writing as soon as practicably possible.
9.That the parties keep each other informed as to their respective current residential addresses and contact details from time to time, including a landline telephone number and contact numbers in the event of an emergency.
10.Each party shall notify the other party in writing no less than four (4) weeks in advance of any proposed relocation of the child’s residence within sixty (60) kilometres of the Sydney metropolitan area, including provision in writing of the precise address to which the party proposes to move with the child no less than four (4) weeks in advance of the proposed change of residence.
11.That the Father have telephone communications with the child during periods when the child is in his Mother’s care and that such telephone communications occur each week on Monday and Thursday, the Father to initiate such calls at in or around 5:30pm on those evenings each week and that the Mother shall make the child available to the Father on such occasions for the purposes of such telephone communications.
12.That during holiday periods, the party on holiday with the child shall facilitate telephone communications between the child and the other party no less than twice per week at times as agreed and failing agreement, each Wednesday and Sunday evenings, at in or around 5:30pm on those evenings.
13.That in the event either party wishes to travel overseas with the child, that the party wishing to travel with the child do as follows:
13.1.Notify the other party in writing no less than four (4) weeks in advance of the proposed departure date; and
13.2.Forward to the other party:
13.3.The proposed itinerary and return date; and
13.4.Contact phone numbers and addresses at which the child may be contacted for the duration of the proposed holiday;
13.5.all such information to be provided to the other party no less than four (4) weeks in advance of the proposed departure date;
13.6.In the event that either party wishing to travel overseas with the child requires photograph identification, or the child’s passport for that purpose, the other party shall deliver the child’s passport to the party wishing to travel no less than twenty one (21) days prior to the proposed departure date, and any such passport shall be held by the mother during any intervening periods.
14.That any overseas travel pursuant to the preceding Order herein shall occur on the following terms and conditions:
14.1.That the child shall not miss any schooling by virtue of the proposed travel unless otherwise agreed in writing between the parties;
14.2.That the Father or Mother or such third party as the parties may mutually agree in writing, shall accompany the child on airline flights until the child obtains the age of sixteen (16).
15.That within seven (7) days of the child commencing day care and/or primary school education, the Mother shall provide a written authority to the principal of the child’s school, authorising the school to send to the Father at such address as he may nominate, copies of all documents concerning the child’s progress at school, including but not limited to school reports, reports on school progress and behavioural issues, circulars, notices and sporting or cultural notices in relation to the child, and details of all functions, parent teacher nights and all other activities to which the parents are invited and/or which the child may be involved.
16.That in the event that the child is significantly ill and/or injured and requiring medical treatment, the party who has the child’s care at that time:
16.1.Notify the other party as soon as reasonably practicable; and
16.2.Provide the other party with notice as to the contact details as to where the child is being treated, including an address, contact telephone number and name of the treating hospital, medical centre and/or treating practitioner.
17.In relation to the child’s medical practitioners and other healthcare professionals (“the practitioners”):
17.1.The Mother shall notify, and keep notified, the Father of the names, addresses and telephone numbers of each of the child’s practitioners;
17.2.The Mother shall provide to the Father a written authority authorising the Father to obtain from such practitioners particulars relating to the child’s health, treatment or appointments; and
18.The Father be at liberty to attend at all or any appointments made for the child with such practitioners.
19.That the parties shall maintain a communication book which shall travel with the child.
20.That there be no order as to costs.
21.The Mother is to provide the Father with the child’s dietary recommendations as provided by the child’s allergist, and the Father is to abide by those recommendations.
22.That in the event the parents cannot reach a joint decision about:-
22.1.a major long-term issue involving the Child; or
22.2.the interpretation of these Orders; or
22.3.the implementation of these Orders; or
22.4.the enforcement of these Orders; which involve the child,
each of the parents will do all things necessary to participate in Family Dispute Resolution at an Organisation recognised under the Family Law Act.
23.That before an Application is made to a Court for a variation of these Orders to take account of the changing needs or circumstances of the Children or of the parties, each of the parents is to take the following steps:-
23.1.The Father and the Mother shall each do all things necessary to attend Counselling or Mediation with an Organisation recognised under the Family Law Act; and
23.2.The Father and the Mother shall each participate in Family Dispute Resolution with an Organisation recognised under the Family Law Act.
The Paternal Uncle’s Affidavit Evidence
The affidavit of the father’s brother, N Galloway, was filed on 31 January 2011.
He deposed that he is the child’s uncle and lived about 100 metres away from the child’s present home with the mother.
Of the relationship between his father and mother, he asserts that each was unfaithful to the other and that his father had abused his mother when she was 12 or 13 years of age.
He had been attending in therapy and in his affidavit describes having at the time of that therapy a recalled memory of being in a garage whilst an older boy appeared to sexually assault Mr Galloway when he was present.
This recall came after his wife disclosed that she had a recollection of being sexually abused.
The father’s brother in his oral evidence said that he was in a small cramped space and had the sense that he was going to be next. He says the abusing boy’s father came down and intervened and stopped it and that his father who was upstairs at the time took them home. He says that the house was at Sydney Suburb 4.
Cross-examined on this incident his recollection was vague. He did not know whether he had been in a closet or cupboard or under a work bench. He said that the recollection had come back during a counselling session unexpectedly at the age of 35 years. He described the recollection as very patchy. He said that he found it emotionally charged and upsetting. He said that he felt fear.
He said that he could not say whether it was sodomy or anything like that. He conceded that he could not be sure that an older boy sexually assaulted his brother but it appeared he said to be the case. He could not say what the faces looked like. He said the boys involved were teenage boys.
He was he said 6 or 7 at the time. He said that he did not recall it until he was 35 years of age.
He could not say that he could put 100% accuracy on his statement but he felt that something sexual had occurred. He could not be specific on what it was. He acknowledged that his recounting of the event was vague. He could not name the boys involved. He had not made any inquiries to ascertain their names. He had no recollection of the name of the boy’s father.
He confirmed that he had another recalled memory of a sexual assault. He could not say when he recalled it. This was a recollection that his father put his finger in his bottom.
When asked if he had told his mother that his father had inserted his finger in his bottom he answered, “I told her that I had a memory of that, yes”.
He said that it was unlikely that he would be definite about it talking to his mother because it was a recalled memory from a counselling session.
He said that the memory did not have a lot of context around it. He said that he had no way of proving it or disproving it, it was “just a memory”. He said when asked if his father might have been applying cream he did not know. He then conceded that it might not have been sexual abuse.
He recalled saying that he was disquieted about his children visiting their grandmother (his mother). He said this was because of his mother’s early sexual history with his father.
In 2008 he had asked a counsellor whether she thought that his brother was “safe” with his son. He was he said concerned that the father might do his son some physical injury.
He confirmed he had been contacted by DOCS. It is noted that the records of that conversation described his comment on the family of his childhood to the effect that it was a blended dysfunctional family with blurred sexual boundaries whose father was a sexual predator and a child abuser. He denied that they were the words used but that it might be a paraphrase of what he had said.
He said that he did not know whether his brother had sexually abused his son.
He confirmed that he saw a lot of the mother in her home and that his wife had a close friendship with the mother. He was aware that she assisted the mother in preparation of material for the case.
He confirmed that his suspicion that his wife’s father had acted improperly with her was based on “just a gut feeling”. It was, he said, “just intuitive”. It was born he said of the recovered memory of his wife that she had been abused but she could not say who had done it.
It was later that she said it was her grandfather but he had an intuitive feeling that it might have been her father and notwithstanding his wife’s later recall continued to hold concerns about his wife’s father.
As a product of that concern he did not allow his children alone with his wife’s father. This is even though his wife has no recall of having been abused by her father.
He said that he also formed the view that his wife’s father may have abused other children. He had no basis for this belief other than it seems that a family friend was drug addicted and committed suicide and N Galloway determined that it was a possibility that that friend was sexually abused.
He said that he would not let his children spend time alone with his brother because of the allegations of sexual abuse. He confirmed that the mother was very concerned about J being in his father’s care because of the allegations of abuse. She was, his evidence was, also concerned about the fact that his mother was supervising contact between J and his father.
He confirmed that he informed his mother that he regarded himself as a product of child abuse.
He confirmed he informed his mother that he had dreams of giving oral sex to men. He asked his mother in relation to this, “does this mean that I have been abused”.
He confirmed that he had formed the view that his brother’s behaviour typified someone who had been sexually abused. Pushed on this matter he suggested that his brother “struggled to maintain relationships” and changes his relationships regularly, that he lives alone and works on his own. When it was put to him that those things might be due to other causes he agreed that that was so.
He confirmed that it was easy for an outsider to think that he was obsessed with sexual abuse.
He confirmed that his brother is not presently welcome in his home. He confirmed that he had discussed some of these matters with the mother and all of them with his wife.
The Paternal Aunt’s Affidavit Evidence
The affidavits of the father’s sister-in-law, N Galloway’s wife, Ms G set out in summary:
a.a history of her relationship with the father and the father’s brother
b.evidence of little weight of the nature of the end of a relationship between the father and one of his former girlfriends related to her by the said girlfriend
c.an account of her introduction to the mother
d.a history of her relationship with the mother
e.a history of conversations with the father and the mother at the time when the mother found herself to be pregnant with the child J, including consideration being given to a termination by the father and discussions later of the role he wanted to play in the child’s life
f.the use of terms by the father in addressing the mother later conceded by the mother to be terms of endearment
g.that the relationship between her and the father deteriorated over the term of the mother’s pregnancy.
h.that through the pregnancy and subsequently she has maintained a friendship with the mother and continued to support her.
i.that when the mother and J moved to Town 1 she became one of the mother’s support persons. The relationship is one of contact several times a week and once each week or fortnight for a family get-together. They see each other at Church on Sunday.
In other evidence it emerged that she and her husband had assisted the mother with funding her legal costs of this litigation.
She sets out a history of her acquaintance with her husband’s mother. She recounts statements made by the mother concerning her life. She recalls relevantly that the mother, Ms P, had said that she was concerned about J’s behaviour and said that J’s parents should seek an assessment of him. Ms P she says asked her to speak to the mother about it because of her then communication difficulties with the father. She recounts observations made by her mother-in-law at this time of the father’s childhood and his relationship with her.
She confirms that the father said that he had no recollection of the events recalled as memories by her husband but also says that Ms P said that her son might have been the subject of “something happening to him”.
She describes her observations of J and his behaviour. Those observations were of ill disciplined and violent behaviours amongst others.
She recalls statements made to her by J suggesting that his father had hit him on the head.
She says that following cessation of the time spent by J with the father that his behaviour improved and there was a reduction in his aggressiveness, violence and destructiveness. She says that when visitation resumed there was an increase in incidents of the bad behaviour observed by her.
She describes attempts by the mother to deal with the child’s behaviour.
She notes that the child’s behaviour included defecating and smearing faeces.
She speaks positively of the mother’s search for advice and management tools and her ability to put them into practice.
She notes that the mother has spoken to her in support of J’s contact with his father.
In her second affidavit she discloses some details of her recalled memories of sexual abuse, the problems it had for her and the effect on her marriage and her pursuit of counselling. She says she no longer needs assistance with it.
In cross examination Ms G:
a.confirmed she had a family member relationship with the mother and a friendship with her as well
b.gave evidence that she had acted to assist the mother in the case with documentation in relation to the case
c.gave an account of her “recovered memory” and its evolving over a period of time from recalling herself sitting on a bed alone in a room distressed as a child possibly aged 4 or 5.
She says that the “recovered memory” evolved over a period of time which appears to be from 1995 to 2000 into a recovered memory. She says she recalls a house which was her grandfather’s and her grandfather being there with a friend but gives no evidence of what precisely happened. She attended on Mr B, a counsellor or therapist, in relation to her recalled memory and it was on this counsellor that the father’s brother also attended when he had his recalled memory incident.
She reported that she had been informed by the mother that she believed something had happened to her mother and her sister but she was not sure that anything had happened.
She confirmed that she had had an hour and a half long conversation with DOCS and discussed the father with them.
The Affidavit Evidence of Mr C
Mr C, a friend of the mother, filed an affidavit on 31 January 2011.
He deposed he had developed a friendship with the mother.
In about October 2009 he spent time with the mother outside church and they had meals together, went to the movies and had picnics. J or his younger children by a prior marriage were present.
He describes J when he first met him as being “totally out of control”. He describes the child as grabbing objects and destroying them and running from one activity to the next. He was seen to hit, punch and kick the mother on her head, chest, breasts, face and legs. He saw him throw a knife at the mother and himself. When behaving badly he could not get the child to stop or settle him and noted that the child refused to apologise to his mother for hurting her.
He deposed that he has looked after J on two occasions. He describes that on one occasion in March 2010 he minded J and on that occasion removed his shirt as did the child. This was at a time when the weather was hot. The child, Mr C says, ground his backside in his groin area and removed his pants and asked him to take his pants off too. The child he said had an erection. In response to a statement that he did not take his pants off for anyone the child is reported to have said, “Daddy takes his pants off and I take my pants off for Daddy”. When the deponent repeated the comment to the child the child said nothing.
He says that he returned the child to his mother and told the mother about the incident. The mother replied, “I have got to tell [N Galloway] (the father’s brother)”. He reports that at about 11.30 pm she rang N Galloway and spoke to him.
He says that he observed on three occasions the child go to his mother and put his hand up her dress and grab at her private parts.
He says he again minded the child in April 2010 and the child put his hand up his shorts and touched his genitals. The response was, “they are private we do not touch them.” He also recounts an occasion when he saw the child trying to put his fingers in his bottom and when told that was not done said, “daddy does”.
He concedes that he has a conviction for fraud.
Other Affidavits
Affidavits were filed by a former girlfriend of the father saying that he had told her that his mother once put her finger in his bottom. In addition, an affidavit was filed by the mother’s attending doctor confirming that she did not suffer from depression at the time of J’s birth but that she was anxious and distressed in the doctor’s opinion about the “treatment she was receiving at the hands of the father”.
The Evidence of Ms Y
Ms Y, the Director and teacher of the pre-school attended by J, filed an affidavit at the request of the Independent Children’s Lawyer. She had been telephoned by the mother following doing so and had been told that she had, “made it one hundred times worse”.
In her oral evidence Ms Y:
a.
confirmed she knew a Ms Z who had been the child’s primary carer until March 2011. She read a proof of evidence prepared by
Ms Z and agreed that J was involved in regular, often daily, unprovoked acts of violence towards other children
b.said that the violence required constant supervision of the child
c.said that other children appeared to be fearful of him and that they would somewhat exclude him in their play
d.said that the child would consistently test limits with new teachers or casual teachers
e.noted that a number of strategies had been put in place to deal with the behaviour
f.noted Ms Z’s statement that there had been an improvement in late 2010 to 2011 in the child’s behaviour but said that the child was still violent and unpredictable. She said that she had not witnessed the child in positive interaction with those who had previously been fearful of him.
g.said that she was aware that the child was killing snails, he was also killing beetles and that he ripped the heads off silkworms and flushed them down the drain and that these matters caused her concern
h.said that the child was reported disruptive where a relief teacher was appointed
i.conceded that Ms Z would have first-hand knowledge of the whole day during the period she was J’s major carer.
The Evidence of Ms Z
Ms Z, referred to above, was called by the mother and gave evidence-in-chief that:
a.although as Ms Y had said the child showed a general lack of empathy and concern for others initially there had been a “bit of a shift” in the child “starting to empathise with the behaviours he is causing to others”
b.there are still days where he does not “recognise the rights of others and will disturb their workspaces” but she said that she thought that he was learning that there were consequences of him hitting or punching or kicking other children that he is going to be removed from that space
c.she did not agree that in all cases the child showed no remorse for his conduct and did not lower his eyes and that there was no emotional response. She said that it was necessary to have sometimes one-on-one support for J but that was not always possible and she added on some days when he was having a good day it was not necessary. She observed that the last time however that he needed one-on-one attention would have been during March 2011.
d.she had seen a shift in the child’s behaviour and she was unable to say what the cause of that was.
Under cross-examination she agreed that in September 2010 she had had a conversation with the father that the child was unpredictable and that she was really struggling managing him and finding out what triggers him.
She said that the child sometimes changed behaviour on a daily basis. She confirmed that the reports of Ms Y as to lack of remorse on the part of the child and the child’s lack of empathy were typical of him in September 2010. She confirmed that Fridays were a real struggle day with the child. She confirmed that the child was not at the pre-school on Thursdays.
She confirmed that some of the strategies suggested by the Occupational Therapist did not work at times on the child to redress his behavioural problems.
She said it was hard to put a figure on the improvement with the child’s behaviour but suggested that it was in the order of fifty percent better.
She agreed that it was necessary to discuss J’s behaviour on a daily basis and that it was significantly more frequent than any other child at the centre. She said that small improvements in the child’s behaviour were considered by her to be huge improvements for this child.
The Father’s Affidavit Evidence
The father’s affidavit sets out:
a.a short history of the relationship with the mother and notes that the child J has lived with the mother to date
b.recounts the making of final parenting orders by Federal Magistrate Altobelli in July 2008 following a contested hearing.
c.a history of the proceedings and in particular notes that the mother unilaterally caused his time spent with the child to cease from April 2010 to June 2010 and that he commenced these proceedings in May 2010.
The mother he says again unilaterally ceased the time spent by the child with him in August when making a complaint about the then supervisor of such time. In December the Court made orders varying the time during which and the conditions under which the time was to be spent with the child, but it was not until 22 January 2011 that the mother facilitated the time spent under those orders.
The father sets forth a description in positive terms of the interaction between himself and the child in the period between the July 2008 orders until March 2010 including periods of block contact of one week in September 2009 and in early 2010. He gives some detail of the child playing with children of a similar age who were children of friends of his. He describes other positive activities he arranged for the child.
The father notes that the mother informed him in January 2010 that she was taking the child to a person recommended by his day care because of his “acting out”. He deposes that although he saw some defiant behaviour and some aggression with other children the child did not, it appeared to him, in his care have problems which were extreme in nature.
In February 2010 the child was diagnosed with Sensory Integration Disorder by an Occupational Therapist and the father it seems was advised that the child needed structure and routine.
The father deposes that in the last ten months (prior to 28 January 2011 when the affidavit was sworn) he noticed the child to be more calm and able to interact with other children more appropriately than he had. In that time he had not noticed any signs of the reported behaviour.
In March 2010 the mother informed the father that she would take the child to her sister’s wedding but did not, despite request, provide make up time for the time which would have been otherwise spent with the father.
The father gives an account of an incident which took place on 25 March 2010 which suggests that the mother engineered a conversational exchange which led to her saying in front of the child to the father, “Why don’t you tell him the truth, why don’t you tell him that you don’t want him”. The exchange (which the Court accepts occurred) in the Court’s view reflects no credit on the mother.
The affidavit then recounts the events of Easter 2010 when the mother informs him that the child is unavailable due to ill health and she will not permit the father to see him nor will she permit that when the child is better. A request for make up time is ignored by the mother.
The father recounts being informed by a Senior Constable in April 2010 that his visits with the child have been suspended on the basis that the child has been displaying serious and concerning behaviour. He is informed that he will have to wait to see the child until either the constable or DOCS gets in touch with him. There is an account of the ensuing conversation. The father notes that the mother had not informed him of any of the behaviours complained of. He notes that he has not seen any sexualised behaviours in the child. He notes the report of Mr C to the mother is recounted to him. In due course he is told that the mother had given an undertaking not to leave the child alone with anyone else.
On 14 April 2010 the father was contacted by the Department who said to the effect:
We spent two hours interviewing [J] and [the mother] today and have found the determination to be inconclusive due to his age. We have suggested that [the mother] and [J] see a Clinical Psychologist for some behavioural intervention for them both. The investigation is now closed. You should resume your time with [J] as per the orders and I will be telling this to [the mother] today.
It is noted by the officer that during the course of their interview with the mother, the child was hitting her and pulling her top.
The father notes that the mother refused communication with him after this process.
The father denies that he has ever behaved in a sexual manner in J’s presence or towards him. The Court accepts this evidence.
The father lists the medical practitioners to which the mother has taken the child without informing him who they were and they include: Dr D for an operation for phimosis; Dr A a Child Psychiatrist; and Ms X, Psychologist. The father notes that although he agreed with DOCS that the child could go to a psychologist it was on the basis that he was also involved in the process. The child was taken to another Psychologist, one Ms R, of which he also knew nothing until affidavits were filed in the proceedings and a Ms T, an Occupational Therapist of whom he was not aware until an assessment was provided by her. The child was also taken to Ms V, a Naturopath of whom the father learnt about after the fact.
In all, including the above, the child has attended on 23 practitioners, either medical or otherwise, in the human sciences in his short life. The mother asserted that the child had allergies but none were shown it appears on test. It is noted by the father that his brother’s wife and his brother have placed their children on a restrictive diet for most of their lives.
The father describes his estranged relationship with his brother and the nature of the relationship between his brother and his brother’s wife and the mother in these proceedings. He spoke of his brother’s references to abuse suffered by his wife and his statement that:
the only way that I can protect my children and stop [Ms G] from leaving them unattended with her parents is to make a blanket rule about the children not being left with anyone alone
and:
I don’t believe [Ms G] or her Mother would be able to recognise any of the signs of a child abuser. [Ms G] was a victim of child sexual abuse and her mother did not recognise the signs to protect [Ms G]
He deposes that the relationship between the mother and his sister-in-law is close and refers to the evidence of the DOCS officer that the child when asked who he lived with replied “[Ms G]”.
The father reports a number of conversations with his mother which the mother verifies in her evidence and they include references by the father’s brother to him as being “Dark and Evil” and references to constant questioning as to whether his father was a paedophile and a serial abuser of women.
The father recounts the mother’s move to Town 1 and the fact that she was deceptive about it.
The father recounts events which suggest the mother is erratic in her behaviour including the following interchange:
The father:I have bought a new home so [J] can have his own room.
The mother: What else out of my dream are you going to steal? She then walked off.
The father gives evidence that he is advised by a paediatrician that the diet on which the mother had placed the child is unsuitable for him and does not give him the nutrients he needs.
The father gives evidence of the child’s behaviour with him and he says that with him the child is not a fussy eater, sleeps well and happily eats all food groups. The father acknowledges that the child had been a restless sleeper but improved after the removal of his tonsils. At his home the child has always slept in his own bed. The father asserts that he has never found J to be unusually difficult to manage and says in effect that his behaviour is age appropriate.
The affidavit goes on to deal with other matters and provides some answers to affidavit material previously filed by the mother or on her behalf and, inter alia, he details his financial support for the child and he estimates that he has provided a total of about $65,000 for the support of the child and other expenses for the child for medical expenses and swimming lessons. As indicated later where the father’s account differs from that of the mother, other than when otherwise stated, the evidence of the father is preferred.
The father sets out his proposal for housing and care for J in the event that the child lives with him. Those proposals involve him procuring some paid assistance but also involve him taking time off work to settle him in. He says that he would continue the child in day care and have the assistance of his mother when required. He notes that his hours are flexible since he runs his own business. He would however seek some help for those occasions when he was for example unable to pick the child up from child care.
The Paternal Grandmother’s Affidavit Evidence
The paternal grandmother, who filed an affidavit on behalf of the father, provides evidence that:
a.until these proceedings she had a good relationship with the mother
b.the mother stayed in her home and that they enjoyed time out together
c.she visited the mother at Town 1 on occasions that she travelled there to see her son N Galloway
d.sets out the history of her relationship with her husband and their marriage and divorce and records continuing contact with her husband post divorce
e. recalls a conversation with her son N Galloway to the effect:
After visiting India where we had done some spiritual and rebirthing work, [Ms G] started to recall some very distressing regressed memories from her childhood. She’s really struggling to cope.
f.recalls subsequent discussion where N Galloway agrees that the recall is of sexual abuse of his wife by his father-in-law
g.recalls asking N Galloway why he did all the work around the house and observed that, “it is almost like you enable [Ms G] to remain in this damaged state”.
h.offers the observation that N Galloway seems fixated on sexual abuse and the traumatic effect it can have on the survivor and those around them and has said, “I will do whatever it takes to protect my children and make sure this never happens to them”
i.recounts further conversations with N Galloway concerning his father and his suggestion that he was a result of child abuse and asks whether his father was a paedophile. She also recounts him as saying, “I have had dreams of giving oral sex to men. Does this mean that I’ve been abused?”
j.recalls that in many conversations with N Galloway he raised the issue of sexual abuse. It was she said as if he never stopped thinking about it.
k.recalls N Galloway informing her of his “flashback” of the father being abused and confirming his continued belief that it did happen notwithstanding that the father denied that it happened. She recalls him observing, “[The father] might be suffering repressed memory just like [Ms G]”
l.recalls a period during which she and N Galloway did not communicate much and later being informed by him that he had removed every photograph of his father from his home
m.describes the developing negative attitude of N Galloway to the father and his negative references to him in conversation until she told her son that she did not want to hear those references and she did not agree with them
n.observes that N Galloway and his wife Ms G spent so much time with the child that he referred to them on occasions as Mummy and Daddy
o.observes that N Galloway’s child, who said he did not attend scouts, had reported to her, “Daddy doesn’t like me to be alone with a lot of people that I do not know.”
p.recounts the father’s response to the sexual abuse allegations and N Galloway’s response to her concerns and his support of the mother
q.recounts a history of her involvement with the child whilst in the father’s care over a period of two years and gives a description in positive terms of the father’s handling of the child
r.describes, in particular, the father’s capacity to set boundaries for the child noting that the child does have some challenging behaviour but noting also the father’s capacity to contain that behaviour is exercised with ease and quickly
s.gives examples of his handling such behaviour. She offers the opinion that the child’s behaviour with the father never to her appears to be outside the range of normal behaviour for a child of this child’s age
t.recounts an event whilst the child was in the care of the mother and was described by her as “uncontrollable”
u.describes that the behaviour later became extreme and continued for about two hours
v.gives evidence of the mother’s failure to comply with orders of the Court on a number of occasions that the child spend time with his father under her supervision
w.offers her support for the father should he be the parent with whom the child lives.
There is little doubt on the evidence that the mother has a continuing and abiding suspicion of the father. This is apparent since 2008. She believes that he “grooms” J. She does not believe that he loves J; an assertion which is belied by the father’s conduct and the observation of the father and the child.
The mother has no doubt that the child’s misbehaving conduct is the product of abuse by the father yet she refers to such conduct arising at about the same time as a friend Mr C came into her life. Notwithstanding this, it is the father alone who is the target of her convinced view that something untoward has happened.
The child’s statement said by the mother to be made, “Mummy I do it I do it I do it I tickled him I tickled the man”, was made after the child had been in the presence of Mr C and had put his hand up a shorts leg and touched
Mr C’s genitals. Yet the mother refers to the child’s statement as evidence of sexual abuse by the father.
The findings of the Court in relation to the matters which she has bought to it may not assuage her suspicion. Dr W spoke of the likelihood of the mother simply saying that the Court got it wrong. She, it appears, lacks the ability to stand back from events and apply an objective mind to them.
In addition it is clear that the mother has a continuing lack of trust in the father because she regards him as not only a liar but a manipulative person with an obsession for control.
The mother’s diaries were produced and the material contained in them was to some extent inconsistent with that contained in her affidavit which put the father in a light worse than her diary notes would suggest was warranted.
This seems to indicate the extent to which the mother would go to denigrate the father. The Court notes that the affidavit evidence of the father’s sexual practices did not contain any suggestion that the practices were consensual which the oral evidence established they were. It seems more probable than not that their recounting was intended to be simply prejudicial to the father.
Importantly, Dr W notes the mother’s lack of ability to be consistent in relation to dealing with her child’s behaviour and to prevent a continuation of his disorder. This stands in stark contrast with the ability of the father to control the son’s behaviour.
The child seeks to manipulate the mother but not the father. He is constantly testing limits with the mother.
The mother cannot accept it seems that it is her parenting style which is inappropriate for this child and the cause of his behaviour. She seems to continue to adhere to the view that his behaviour is solely the result of abuse by the father.
The mother’s faith in her view, found by the Court to be unsustainable that the child was in any danger from the father, is supported in her by her continuing relationship with and encouragement from the father’s brother and his brother’s wife who seem to have an idée fix in relation to the issue of child abuse.
The mother can only bring herself to say that the child’s ordered behaviour in the father’s care is occasioned by fear of the father, a view which is neither shared nor demonstrated by the supervised contact observations nor the observations of Dr W whose description of the relationship betokens no such fear.
Dr W says of the child’s behaviour that if the behaviour was not contained for the majority of the time that would have major implications for J’s social relationships and capacity to benefit from the school environment as he grows up.
It could, he says, extend to other problems with learning because his bad behaviour will dominate and he could become disruptive in class, he might be isolated in those circumstances or placed in a special class and that would take him out of the mainstream. Looking further down the track he says there could be consequences with delinquency and relationships in teenage and adult life.
Dr W is not sanguine of the mother accepting that it is her parenting style which is causative of the problem. He also notes that “the mother remains living in the [Town 1] environment and that that environment has an unhealthy preoccupation and lack of discrimination about risk”. The mother, he says, has a lack of confidence in parenting, a lack which is not shared by the father who possesses it appropriately.
The household of N Galloway seems to be an environment of adult people with a common obsession in the adults in relation to child abuse. In that environment N Galloway’s children are excluded from a proper relationship with their grandparents on flimsy grounds.
The same man’s assumption that the father’s behaviour is that of someone who has been sexually abused because he lives alone, he works on his own, he works for himself and he has not had lasting intimate relationships is not demonstrated by evidence to be correct.
The climate of hyper-vigilance which infects that household has extended to the mother in this case who sees problems with a relationship between the paternal grandmother and the child.
Even when the contact between the father and the child was under supervision the mother still had concerns as to what damage might be inflicted by the father on the child and says in her diary notes in relation to her complaints about supervision:
I am concerned that unless [the father] is put in a room with [J], not allowed to bring anything in, not allowed to talk about other people to [J] and not allowed to talk to the supervisor and forced to actually play with [J] only then. I don’t believe that this is possible.
It seems probable that if the child is permitted to continue to live with the mother and spend most of his time with her, given her unyielding attitude to the father, that the child will continue to be barraged perhaps non-verbally with an attitude of fear emanating from the mother of the care of the father for him. Such an indoctrination of fear, perhaps unknowingly provided, has the propensity to destroy the child’s relationship with his father.
The Court concludes on the evidence that it is more probable than not that the mother cannot shift her attitude to the father.
In the circumstances referred to above the Court finds that there is a significant risk of harm to this child (increased by reason of him suffering from Oppositional Defiant Disorder) in the continuing care of the mother.
If there could be a change in the mother’s insight and ability to parent and ability to promote on a normal basis a relationship between the child and the father things might be different but the Court is left with concern that at least for the time being that is not possible.
The likelihood of long-term damage to this child in a continuation of the current arrangements for his care is such that a change in those arrangements is clearly required to serve his best interests and those benefits override the perceived short-term problems associated with such a change.
Additional Considerations
(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
This child is of an age where his views would carry but small weight. To the extent that they are known it is known that he has an affectionate relationship with his father and mother and seeks in particular the company of his father.
(b) The nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
It is clear on the evidence of Dr W that this child’s primary attachment is to his mother. He however says:
Overall it appeared to me that [J] had a rather anxious insecure attachment to his mother whereas his attachment to his father had the features of a secure attachment, the type of anxious attachment he seemed to show with his mother is typical of the type one sees with Oppositional Defiant Disorder.
The evidence of Ms Y however, as to the child’s ability currently to detach from the mother at pre-school and his happiness in return to her, suggests a warm relationship with the mother.
The evidence of the contact supervisors indicates a clearly warm and loving relationship with the father as does the observations of Dr W.
The Court agrees with the submission of the Independent Children’s Lawyer that the child would have the benefit of a loving relationship with each of his parents, but that he is more likely to be better off considering all matters in his father’s care because of his superior ability to deal with the child’s problems.
(c) The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
Each parent does not have a high opinion of the other parent.
There appears little evidence that the mother is anxious to facilitate a close relationship between the child and the father and, notwithstanding her protestations that subject to the child being safe she would, she has, it seems likely, little chance of accepting that the father is not a threat to the child.
Her attitude is unyielding and she firmly clings to the view that the child’s behaviour is a product of the father’s abuse and nothing to do with her parenting style.
In some of her beliefs she clung to visions of bad behaviour by the father in circumstances where he only saw the child under supervision. She sees herself, in the words of Dr W, the single arbiter of her son’s welfare.
The determination of the mother to restrict the relationship between the father and child has been evidenced in a number of ways including her disobedience of Orders. Although on one occasion the mother sought to say that the Department of Community Services (as it then was) advised her to breach the Orders she in cross-examination admitted that this was not so and that it was her own response.
Other reference is made above to some of the matters the Court has taken into account in coming to the finding that her willingness and ability to encourage such a relationship as is referred to is impaired and include her unyielding distrust of the father and her belief that he has “special powers” and that, for example, his taking of the child to his house during a supervised visit was “for [J] to get triggered and to send me the message that he is the God of Control”.
Dr W notes, “Her distrust of him is evident and if the range of her concerns is an indication, the matters of which she makes an issue may be rather indiscriminate”. This is a reference to the mother’s complaints about the child’s diet and the attendance of the father’s mother at the longer of the supervised visits.
Dr W said that the mother’s view of the father, which appeared to be supported by people who surrounded her, were views which would be difficult to shift.
There is no evidence that suggests that the father would not provide encouragement to the child to maintain a relationship with the mother and orders sought clearly indicate such an intention.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
It seems clear from the evidence of Dr W that there will, other than beneficial effects for the child, be also an adverse effect of a change in the child’s place of living from his mother to his father.
Such a change is described by him as one of pining and sadness which will require support, understanding and insight from the father which Dr W believes and the Court accepts the father is able to provide.
He also says that it will be of relatively short term duration. It also seems more probable than not that the child will benefit in relation to his disorder in the care of the father who has it seems the parenting skills needed to cope with the child’s disorder effectively. This it is likely will provide the child with long term benefits and prevent long term damage that might be caused with less effective control of that disorder.
(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The father and the mother in this matter do not have attendant upon the child spending time with them any significant expense or practical difficulty which will affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
(f) The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
It seems from the evidence that each of the parents can provide for J’s physical, material and intellectual needs. The mother is presently having some difficulty in dealing with the moderation of the child’s behavioural disorder. That may be because she cannot recognise that it is her style of parenting lacking as it does the appropriate maintenance of boundaries and consistency in dealing with behavioural infringements and the child’s emotive responses.
Indeed in her diaries the mother describes behaviour between her son and a girl in a bath which was inappropriate but not stopped by her at an early stage. Her inaction was hard to understand however Dr W noted the information which was amassed by the mother. He said that in some cases this can lead to effective parenting but in others the person is overwhelmed by the amount of information available to them and this can lead to relative parenting paralysis and lead to indecisiveness as to when to act.
The behaviour of the child as described by her evidence is alarming. The mother’s inability to contain it is sadly deficient. It is noted that some improvement is seen in the mother’s capacity and that is encouraging but
Dr W still identifies the problem as existing. He still sees the child as capable of manipulating his mother and to be in charge of their interaction.
As an example of one of the problems which arose is that during supervised time with the father the child expressed a wish to go to the father’s home. The father gave a non committal answer. The child reported to the mother that the father had said that he would come to his place soon. There was a similar incident in the assessment where what the child reported to the mother was different from the fact. Dr W said that these events demonstrated the mother’s tendency to take what the child said at face value and accept it uncritically. The Court finds that the mother exhibits this tendency.
This could well pose a problem for the future for this child having regard to the way in which what the child has said in the past has been uncritically accepted and, with the encouragement of the father’s brother and his wife, has led to the lines of inquiry about the father’s behaviour toward the child.
The father does not it seems experience the same problems with the child as does the mother and is successful in meeting the particular needs of the child for appropriate boundaries to be set and consistently and persistently enforced by discussion and praise and rewards for the postponement of gratification as persuasion. The child appears it is said to be very responsive to this approach. In this way the father is better able to meet the needs of this child for consistency and the development of boundaries which are understood and adhered to.
Upon a consideration of the whole of the evidence and in particular these matters the Court finds that the father is better able to provide for this child’s emotional and behavioural needs. The importance of this for the future of the child and the danger to the child for the future in the event that these needs are not met indicate that the interests of this child in the long term are better served by the father’s superior ability in this regard.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The child is young. He needs support having regard to his disorder now to avoid the possibility of long term harm to him.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
There is no evidence that this child is an Aboriginal or a Torres Strait Islander child.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The father has met all the financial obligations of maintaining the child to an extent above what has been assessed. The father has not missed the opportunity to spend time with J and has pursued those opportunities in a reliable and committed way.
(j) Any family violence involving the child or a member of the child’s family
There is no evidence accepted by the Court of any such violence.
(k) Any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
There is no evidence of any such order.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It is always undesirable for children to be the subject of litigation between parents they love. However in this case one cannot escape the view that with the child in the mother’s care there would be a strong likelihood of litigation continuing. Her distrust of the father and her non-compliance with Orders suggest that this is a reasonable assumption at least on past history. She has pursued this litigation with a conviction as to the rightness of her cause and in following that path has resorted to disobedience of Orders, giving less than a frank account of events and placed at all times the pursuit of her view and its presentation above her obligations to make proper disclosure and give all relevant evidence it seems. Her views of the father are it seems entrenched. One could be reasonably assured that an Order directing that this child live with her given her views would indeed be likely to lead to further litigation. The Court therefore finds that the Orders that it proposes to make are less likely to lead to the institution of further proceedings in relation to the child.
(m) Any other fact or circumstance that the Court thinks is relevant
This case is one where the Court is obliged to make orders which protect this child from a danger far more real than that imagined by the mother. That danger lies in ineffective parenting of a child with his Oppositional Defiant Disorder. A failure to provide effectiveness in that parenting could lead to the significant deficits for this child in his life adumbrated by Dr W in his commentary.
The relationship between the parents is poor. The inability of the mother to see much of significant good in the father is an ongoing concern. True it is that the mother has taken time to be persuaded to her current view of the father and not all of her actions could be seen as peremptory or unthinking, but nevertheless in this case it is the destination of the process rather than the process itself which is important and in this case that destination is one of profound mistrust of the father.
The child loves his mother and his father but his interests are served by being primarily in the care of his father notwithstanding the short-term problems that will bring about.
It seems the mother needs to gain greater insight into herself and her need for change and the development of different parenting practices. She also needs to come to a realisation that J needs the freedom to love each of his parents and that her conduct and attitude to the father must not be inimical to that freedom.
Section 60CC(4) & (4A)
I have already touched on a number of matters which fall for consideration under this heading, including that the father has taken the opportunity to participate in making decisions about the major long-term issues in relation to the child and the opportunity to spend time and communicate with the child. He has also fulfilled his obligations to support the child. The mother has failed to facilitate the time to be spent by the child with the father and the communication between the child and the father even in the face of Court Orders.
Balancing the s 60CC Considerations
Balancing the matters set out in s 60CC and the evidence recited in these reasons, I find that the Orders I propose are practicable and will operate to foster the best interests of the child for the reasons specified above.
Section 61DA
This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. It requires the Court to presume that it is in the child’s best interests for his parents to have equal shared parental responsibility for him.
The presumption does not apply where there has been family violence. In this case, there has not been family violence as has been set out earlier.
Notwithstanding that there may have been family violence it would still be open to the Court to make an Order for equal shared parental responsibility if it was determined to be in the best interests of the child.
The section further provides in subsection (4) that the presumption may be rebutted if it is determined to not be in the child’s best interests.
In this case, there is reason for the presumption to apply and neither parent seeks otherwise. The father, in his minute of order, seeks that the parents have equal shared parental responsibility for the child; and the mother appears to seek a like order in the event that the Court finds that there is no unacceptable risk of harm to the child in the father’s care.
The parents having equal shared parental responsibility for the child would be a return to the situation which existed prior to the requirement for supervision being imposed on the time spent by the child with the father.
The Independent Children’s Lawyer has sought an order for sole parental responsibility to reside with the father.
The Court has given serious consideration to the history of this matter and the conflict between the parents, and understands the reasons for the Independent Children’s Lawyer’s submission. There will be issues in relation to the child’s enrolment in school and other matters which will require joint decision.
The Court believes that the parents’ history should not necessarily be regarded as their destiny and that the requirement imposed upon them to consult may well improve their ability to do so.
The Court is, however, mindful of the need to reduce tension. It will provide for an ongoing supervision of the operation of the Order for equal shared parental responsibility and for a process in the event of disagreement by which the father and the mother will in the first instance be required to submit such disagreement to mediation.
Section 65DAA
This section requires me to consider making an order for equal shared time for the child with each parent where it is proposed to make an order for equal shared parental responsibility.
The Order I propose to make will not afford the father and the mother equal shared time with the child and I find that to be in the child’s best interests for the reasons set forth in this judgment.
The Orders to be Made
The Orders to be made will represent a significant change for the child. The father and the mother will also need to adjust to such change.
It seems to me that, for a period at least, in order to allow the child to settle, he should live with the father and not spend time with the mother.
Thereafter, there should be a period during which the time spent by the child with the mother increases on a gradual gradient consistent with an improving situation for the child.
It is hoped that, with the passage of time and the overcoming of the child’s disorder and the continuation of the help for the mother to improve her parenting skills and to gain some insight into the child’s needs, things might be restored to a situation where the child can happily spend more time with the mother.
Until then, however, the Court proposes to make the orders in relation to parenting as set forth above.
I certify that the preceding four-hundred and six (406) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on
8 July 2011.
Associate:
Date: 8 July 2011
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