GOSLING & SHARP
[2020] FamCA 1108
FAMILY COURT OF AUSTRALIA
| GOSLING & SHARP | [2020] FamCA 1108 |
| FAMILY LAW – PARENTING – dispute between the parents where both parents initially sought primary residence of the child who has special needs and limited time with the other parent –where the child had previously been living in a shared care arrangement – the mother initially predicated her case on the basis that she was in a better position to ensure the child’s immersion in the cultural heritage of both parents – father sought residency of the child on the basis of the risk the mother posed as a result of her mental health issues and past transient lifestyle – during the trial it became apparent that the mother had a fervent belief that the child had been sexually abused despite no objective evidence to substantiate her belief – mutual allegations of past family violence – assessment of risk of both parents – findings that the father does not pose any risk to the child – findings that the mother’s mental health poses a risk to the child to warrant a reduction of her time with the child so that he lives primarily with the father and spends four nights a fortnight with the mother together with holidays and special occasions |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA Evidence Act 1995 (Cth) ss 140 |
| Bell & Nahos [2016] FamCAFC 244 McCall & Clark [2009] FamCAFC 92 Mazorski & Albright [2007] FamCA 520 M v M (1988) 166 CLR 69 Stott & Holgar and Anor [2017] FamCAFC 152 |
| APPLICANT: | Mr Gosling |
| RESPONDENT: | Ms Sharp |
| INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
| FILE NUMBER: | MLC | 7302 | of | 2017 |
| DATE DELIVERED: | 22 December 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Williams J |
| HEARING DATE: | 7-10, 25, 28 September 2020 |
| WRITTEN SUBMISSIONS: | Independent Children’s Lawyer – 12 October 2020 Respondent – 16 October 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms B. Lane |
| SOLICITOR FOR THE APPLICANT: | Lander & Rogers |
| COUNSEL FOR THE RESPONDENT: | Mr G. Thistleton |
| SOLICITOR FOR THE RESPONDENT: | Marcou And Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr G. Ambrose |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
Orders
All previous orders be discharged.
The parties have equal shared parental responsibility for the child, X, born … 2013 (the child), save that the Father have sole parental responsibility in relation to all matters concerning the child's health and education.
The Father provide to the Mother details and information in relation to decisions concerning the child's health and education within 7 days of such decision being made, save that in the event of emergency, the Father provide to the Mother details and information forthwith after the making of such decision.
The child live with the Father.
The child spend time with the Mother as follows:
(a) during school terms in a fortnightly cycle:
(i)in week one, from after school on Friday (or 4.00pm if a non-school day) until the commencement of school on Monday (or 4.00pm if a non-school day);
(ii)in week two, from the conclusion of school on Thursday (or 4.00pm if a non-school day) until the commencement of school Friday (or 4.00pm if a non-school day);
(b) during school holidays:
(i)for one half of the school term holidays and failing agreement the first half;
(ii)unless otherwise agreed between the parents, each alternate week during the long summer vacation;
(c) on the child's and Mother's birthday:
(i)on school days for a minimum period of 2 hours by agreement and in default of agreement from 3.30pm until 5.30pm;
(ii)on non-school days for a minimum period of 4 hours by agreement and in default of agreement, 3.00pm until 7.00pm;
(d) during the Christmas celebratory period as follows:
(i)in 2020, from 4.00pm Christmas Day until 4.00pm Boxing Day and in each even numbered year thereafter (with the child to be in the care of the Father form 4.00pm Christmas Eve until 4.00pm Christmas Day in 2020 and each even numbered year);
(ii)in 2021, from 4.00pm Christmas Eve until 4.00pm Christmas Day in each odd numbered year thereafter (with the child to be in the care of the Father from 4.00pm Christmas Day until 4.00pm Boxing Day in 2021 and each odd numbered year);
(e)at such further or other times as may be agreed between the parents in writing.
(f) on Mother's Day from 9.00am until 5.00pm.
The child spend time with the Father on Father's Day from 9.00am until 5.00pm.
The child spend time with the Mother during NAIDOC week, for five consecutive nights commencing 4:00pm on the Saturday prior to NAIDOC week commencing in 2021 and each alternate year thereafter, unless otherwise agreed in writing between the parents.
Subject to paragraph 7 hereof, any religious or cultural events/occasions for the child to attend be organised by agreement between the parties in writing, with such communications to be either by email, mobile text message or other similar communication.
The parents be permitted to:
(a)attend all extracurricular and school activities for any school the child is enrolled in, including school concerts, school plays, excursions, unless the event is specifically directed at mothers or fathers only; and
(b)be at liberty to schedule separate parent teacher interviews.
Each parent give all necessary consents and authorities to enable the other parent to obtain information (at their own expense) concerning the child's education, healthcare and extracurricular activities.
The parents, their servants and agents be restrained from:
(a)denigrating the other parent or member of that parent’s family in the presence or hearing of the child;
(b)allowing the child to remain in the presence or the hearing of any person so doing;
(c)passing messages through the child; and
(d)discussing these proceedings or issues raised in these proceedings with the child.
The Mother and the Father immediately provide to the other details of any change of any residential address, telephone and email address and each parent keep the other updated of any change to such details including details of any other person/people that are living in the property of either party within 48 hours of such change.
In the event that there be any further notification or allegations made in respect of the child or the Father or members of their families, the Father be at liberty to provide to, Department of Health and Human Services, SOCIT, Victoria Police, the B Hospital or any other such similar agency/authority the following:
(a)a copy of these Orders;
(b)the report of Dr C dated 3 October 2018;
(c)a copy of the Dr D's report dated 15 September 2019; and
(d)a copy of the transcript of the Dr D's evidence given at the Final Hearing on 28 September 2020.
In the event that there be any further notification in respect of the maternal grandfather Mr TT, the Father be at liberty to provide copies of the documents referred to in paragraph 13 of these orders to Mr TT who in turn be at liberty to provide a copies of the said documents or any parts of the judgement that may contain findings in relation to Mr TT to any investigating agency.
A copy of the transcript of Dr D's evidence given on 28 September 2020 be provided to the parties and
(a)the Independent Children's Lawyer provide a copy of the transcript to the Mother's treating psychologist Dr E and to Dr F; and
(b)the Mother be at liberty to provide the transcript of Dr D's evidence to any other treating mental health professional she may elect to consult.
The Mother be restrained from consuming any illicit substances, including but not limited to cannabis prior to time with or in the presence of the child.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gosling & Sharp has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 7302 of 2017
| Mr Gosling |
Applicant
And
| Ms Sharp |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
The applicant is the father and the respondent is the mother of the child X born in 2013. X is now 7 years old.
Issues in Dispute
The following issues were in dispute in the proceedings:
i)does either the mother or the father pose a risk to X;
ii)should the existing equal time arrangement continue;
iii)if the existing equal time arrangement does not continue and X lives primarily with his father, what time should X spend with his mother;
iv)should there be an order for equal shared parental responsibility, or should such an order be subject to the father having sole parental responsibility for X’s health and education.
Synopsis
I have determined that it is in X’s best interests that:
i)X should live primarily with his father;
ii)X should spend time with his mother as follows:
(a)during school terms for four nights a fortnight;
(b)for one week in the school term holidays;
(c)week about in the long summer holidays;
(d)for 5 consecutive nights in NAIDOC week in alternating years;
(e)special occasions;
iii)there should be an order for equal shared parental responsibility, subject to the father having sole parental responsibility for X’s health and education.
The reasons for my determination follow.
Background and relevant procedural history
The summary of the parties background is as follows:
a)in October 2012, the parties met and commenced their relationship;
b)in May/June 2013, the parties commenced living together;
c)on … 2013, X was born;
d)in September 2015, the parties separated but remained living under the same roof;
e)in June 2016, the father moved in with the maternal grandfather and maternal step grandmother. The mother commenced a relationship with Ms CC;
f)on 16 August 2016, the mother and X were involved in a motor vehicle accident, which resulted in the mother being hospitalised in South Australia and undergoing spinal surgery;
g)on 2 September 2016, an incident occurred at the mother’s home during changeover;
h)on 10 July 2017, the mother filed an application at the Magistrates Court for an intervention order against the father;
i)on 21 July 2017, the father filed an initiating application for parenting orders in the Federal Circuit Court of Australia;
j)on 16 August 2017, the parties entered into consent orders providing for the child to live with each of them on a week about arrangement;
k)on 31 January 2019, the mother raised allegations of inappropriate behaviour and sexual allegations against the father towards X after the father attended X’s first day at school. The mother suspended time between the father and X for a period of four months;
l)on 12 February 2019, the mother filed an application for an intervention order against the father;
m)on 14 February 2019, the mother moved into refuge accommodation;
n)on 9 March 2019, the mother moved from refuge accommodation to secure accommodation;
o)on 30 May 2019, orders were made for resumption of shared care arrangements;
p)in September 2019, the father moved into rental accommodation with his partner, Ms G.
The proposals of the parties
The applicant’s proposal
The orders which the applicant seeks from the Court are set annexed to the Father’s Closing submissions. The orders differ from those sought at the commencement of the trial. They are as follows:
1.That all previous orders be discharged.
2.That the parties have equal shared parental responsibility for the child, X, born … 2013 (the child), save that the Father have sole parental responsibility in relation to all matters concerning the child's health and education.
3.That the Father provide to the Mother details and information in relation to decisions concerning the child's health and education within 7 days of such decision being made, save that in the event of emergency, the Father provide to the Mother details and information forthwith after the making of such decision.
4.That the child live with the Father.
5.The child spend time with the Mother in a fortnightly cycle during school terms as follows:
5.1In week one, from after school on Friday (or 4.00pm if a non-school day) until the commencement of school on Monday (or 4.00pm if a non-school day);
5.2in week two, from the conclusion of school on Thursday (or 4.00pm if a non-school day) until the commencement of school Friday (or 4.00pm if a non-school day);
5.3during the Victorian Gazetted School holidays for terms 1 and 3, for 5 consecutive nights during school term holidays commencing at the conclusion of school on the last day of the school term and concluding at 4:00pm on the 6th day of the said holiday period, unless otherwise agreed in writing between the parents;
5.4during the Victorian Gazetted School holidays for term 2:
5.4.1for NAIDOC week, for 5 consecutive nights commencing 4:00pm on the Saturday prior to NAIDOC week commencing in 2021 and each alternate year thereafter, unless otherwise agreed in writing between the parents;
5.4.2for 5 consecutive nights commencing at the conclusion of school on the last day of term 2 in 2022 and concluding at 4:00pm on the 6th day of the term 2 holiday period in each alternate year, unless otherwise agreed in writing between the parents;
5.5during the long summer holidays as follows:
5.5.1from the conclusion of school on the last day of school term until 4.00pm on 24 December, the fortnightly rotation in subparagraph 5.1 and 5.2 herein continue;
5.5.2for 5 consecutive nights in each 14-day cycle for the purpose of this Order to commence:
(a)at 4.00pm on 28 December 2020 and alternate years thereafter; and
(b)at 4.00 pm on 4 January 2022 and alternate years thereafter;
5.5.3the Mother return to the Father's care 48 hours prior to the commencement of the school year;
5.6on the child's and Mother's birthday:
5.6.1on school days for a minimum period of 2 hours by agreement and in default of agreement from 3.30pm until 5.30pm;
5.6.2on non-school days for a minimum period of 4 hours by agreement and in default of agreement, 3.00pm until 7.00pm;
5.7during the Christmas celebratory period as follows:
5.7.1in 2020, from 4.00pm Christmas Day until 4.00pm Boxing Day and in each even numbered year thereafter (with the child to be in the care of the Father form 4.00pm Christmas Eve until 4.00pm Christmas Day in 2020 and each even numbered year);
5.7.2in 2021, from 4.00pm Christmas Eve until 4.00pm Christmas Day in each odd numbered year thereafter (with the child to be in the care of the Father from 4.00pm Christmas Day until 4.00pm Boxing Day in 2021 and each odd numbered year);
5.8at such further or other times as may be agreed between the parents in writing.
6.That the child spend time with the Mother on Mother's Day from 9.00am until 5.00pm.
7.That the child spend time with the Father on Father's Day from 9.00am until 5.00pm.
8.That any religious or cultural events/occasions for the child to attend be organised by agreement between the parties in writing, with such communications to be either by email, mobile text message or other similar communication.
9.That the parents be permitted to:
9.1attend all extracurricular and school activities for any school the child is enrolled in, including school concerts, school plays, excursions, unless the event is specifically directed at mothers or fathers only; and
9.2be at liberty to schedule separate parent teacher interviews.
10.That each parent give all necessary consents and authorities to enable the other parent to obtain information (at their own expense) concerning the child's education, healthcare and extracurricular activities.
11.That the parents, their servants and agents be restrained from:
11.1denigrating the other parent or member of that parent’s family in the presence or hearing of the child;
11.2allowing the child to remain in the presence or the hearing of any person so doing;
11.3passing messages through the child; and
11.4discussing these proceedings or issues raised in these proceedings with the child.
12.That the Mother and the Father immediately provide to the other details of any change of any residential address, telephone and email address and each parent keep the other updated of any change to such details including details of any other person/people that are living in the property of either party within 48 hours of such change.
13.In the event that there be any further notification or allegations made in respect of the child or the Father or members of their families, the Father be at liberty to provide to, Department of Health and Human Services, SOCIT, Victoria Police, the B Hospital or any other such similar agency/authority the following:
13.1a copy of these Orders;
13.2the report of Dr C dated 3 October 2018;
13.3a copy of the Dr D's report dated 15 September 2019; and
13.4a copy of the transcript of the Dr D's evidence given at the Final Hearing on 28 September 2020.
14.In the event that there be any further notification in respect of the maternal grandfather Mr TT, the Father be at liberty to provide copies of the documents referred to in paragraph 13 of these orders to Mr TT who in turn be at liberty to provide a copies of the said documents or any parts of the judgement that may contain findings in relation to Mr TT to any investigating agency.
15.That a copy of the transcript of Dr D's evidence given on 28 September 2020 be provided to the parties and
15.1the Independent Children's Lawyer provide a copy of the transcript to the Mother's treating psychologist Dr E and to Dr F; and
15.2the Mother be at liberty to provide the transcript of Dr D's evidence to any other treating mental health professional she may elect to consult.
16.That the Mother be restrained from consuming any illicit substances, including but not limited to cannabis prior to time with or in the presence of the child.
17.That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
18.That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
Documents relied upon by the applicant
The applicant relied upon the following documents:
i)Amended Initiating Application filed 29 October 2020;
ii)Affidavits of the father filed 28 October 2019, 24 January 2020, 25 February 2020 and 28 August 2020;
iii)Affidavit of Ms G (partner) filed 28 October 2019;
iv)Affidavit of Ms H (maternal step grandmother) filed 28 October 2019;
v)Affidavit of Mr TT (maternal grandfather) filed 28 October 2019;
vi)Affidavit of Dr C filed 25 October 2018;
vii)Psychiatric assessment of Dr D filed 14 February 2020;
viii)Department of Health and Human Services Magellan Report dated 22 May 2019;
ix)report of Dr K (Paediatrician) dated 22 December 2019;
x)Family Report of Dr J dated 15 June 2018;
xi)the family report of Ms L dated 18 December 2019;
xii)Documents tendered by Counsel, including documents produced pursuant to subpoenae.
The applicant’s witnesses
The father gave evidence and was cross-examined by Counsel for the mother and the Independent Children’s Lawyer.
The father presented as a cooperative and truthful witness who gave direct responses to questions during cross-examination. He did not hesitate in his responses, did not prevaricate, was forthright and made appropriate concessions. He impressed me as being extremely attuned to his son, demonstrated considerable insight into the care and needs of X and was a protective and well intentioned parent. He was respectful of the mother’s role in X’s life and confidently articulated his genuine concerns about the mother’s conduct and mental health, and the consequential effect on X. He was also embracing of the cultural heritage of both parents. When it was put to him that he had been sexually inappropriate with his son, his vehement denial and abhorrence was genuine. I accept his evidence as truthful and where it conflicts with the mother’s evidence, I prefer the father’s evidence.
Mr TT, the maternal grandfather gave brief evidence in chief. He was not cross-examined by either Counsel for the mother or Counsel for the Independent Children’s Lawyer.
Neither Ms G, Ms H nor Dr C were required for cross examination. In her Closing Submissions, Counsel for the father submitted that as their evidence was not challenged, their evidence and that of Mr TT, should be accepted. I agree with that submission.
The respondent’s proposal
A summary of the orders which the respondent seeks from the Court are set out at pages 31- 34 of the Mother’s Final Submissions. The proposed orders differ substantially from the orders which the mother sought at the commencement of the trial. The mother initially sought that X live with her and spend alternate weekends with his father.
The orders sought in the closing submissions are as follows:
i)the parents have equal shared parental responsibility, save that the father have sole parental responsibility for health and education (except cultural education in the TT People and VV People traditions);
ii)in exercising decisions about health and education the father should be required to consult with the mother;
iii)the existing week about arrangement continue; or alternatively
iv)X live with his father and spend time with his mother from conclusion of school Thursday to commencement of school Monday each alternate week and an overnight mid-week stay in the other week;
v)X spend holiday time with his mother as follows:
(a) up to one week in the short school holidays;
(b) two weeks in January in the summer school holidays;
(c) during NAIDOC week each year.
vi)X spend special occasions with his mother including Christmas and Mother’s Day;
vii)non-school changeovers take place at McDonald’s Suburb M;
viii)any religious or cultural events/occasions for X to attend be organised by agreement between the parties in writing, with such communications to be either by email, mobile text message or other similar communication;
ix)each parent be permitted to attend all extracurricular and school activities for any school X is enrolled in, including school concerts, school plays, excursions, parent/teacher interviews (and be at liberty to schedule separate parent teacher interviews) unless the event is specifically directed at mothers or fathers only;
x)the parents ensure that X attends scheduled extracurricular activities in which he is enrolled whilst in their respective care;
xi)each parent give all necessary consents and authorities to enable the other parent to obtain information (at their own expense) concerning X’s education healthcare and extracurricular activities;
xii)both parents keep each other informed of their respective contact details, but the father be restrained from passing the mother’s details on to the maternal grandfather;
xiii)orders providing for non-denigration of the parties in the presence or hearing of the child.
Documents relied upon by the respondent
The respondent relied upon the following documents:
i)Amended Response filed 31 July 2020;
ii)Trial Affidavit filed 31 July 2020;
iii)affidavit of Ms N filed 28 May 2019;
iv)affidavit of Ms O filed 31 July 2020;
The respondent’s witnesses
The mother gave evidence and was cross-examined. Much of the affidavit of Ms N was successfully objected to. Neither Ms N nor Ms O were cross examined.
The mother presented as combative, almost scornful and appeared embittered and deeply aggrieved by the court process. She attempted to tell the truth, however she perceived events in terms of her own myopic view and was incapable of accepting alternative explanations for sinister conduct, which she attributed to the father. Examples of this are her unwavering and fervent belief that the father has either acted sexually inappropriately or sexually abused X and her description of the events surrounding Father’s Day 2016 which she consistently referred to as a “home invasion”. In both instances there were alternative objective explanations which she could not even consider. I have no doubt that her responses reflected the rigid nature of her views and that she perceives that she was telling the truth.
Her responses to questions were often evasive and contradictory. Indeed, her own Counsel, described her as at various times she was argumentative, non-responsive and not credible. Her creditworthiness was at times thin, e.g. when she gave evidence about her difficulties with the English language, answers inconsistent with her level of education and sophisticated use of language generally.
In his Final Written submissions, Counsel for the mother conceded that the evidence of the father, as corroborated by the maternal grandfather and his partner, permits a preference for the father’s affidavit evidence about the following:
i)the incident of 2 September 2016, which the mother described as a home invasion;
ii)the mother’s request for assistance in early 2017 when she was not coping with the care of X;
iii)the mother’s outburst after the trip to Town P in Easter 2017.
I agree with that submission.
Where the mother’s evidence differs from that of the father and his witnesses, I prefer the father’s evidence.
The proposal of the Independent Children’s Lawyer
The orders sought by the Independent Children’s Lawyer are annexed to the final submissions of the Independent Children’s Lawyer. The orders are as follows:
1.All previous parenting orders with respect to the child X born … 2013 (“X”) be discharged.
2.The mother and the father have equal shared parental responsibility for X, save that the father have sole parental responsibility in relation to X’s health and education.
3.X live with the father.
4.X spend time with the mother:
(a)During school terms:
(i)In each alternate week, from the conclusion of school or 3:00pm Thursday until 5:00pm Sunday; and
(ii)In every other week, from the conclusion of school Thursday until the commencement of school Friday.
(b)During school holidays:
(i)For one half of the school term holidays and failing agreement the first half;
(ii)Unless otherwise agreed between the parents, each alternate week during the long summer vacation.
5.Notwithstanding as otherwise provided in these orders, X spend time with his parents as follows:
(a)In 2020 and each alternate year thereafter, from 4:00pm Christmas Eve until 4:00pm Christmas Day with the father and from 4:00pm Christmas Day until 4:00pm Boxing Day with the mother.
(b)In 2021 and each alternate year thereafter, from 4:00pm Christmas Eve until 4:00pm Christmas Day with the mother and from 4:00pm Christmas Day until 4:00pm Boxing Day with the father.
(c)From 9:00am until 5:00pm on Mother’s Day with the mother.
(d)From 9:00am until 5:00pm on Father’s Day with the father.
(e)Cultural and/or religious events, celebrations or occasions as agreed between the parents in writing including text message, noting that agreement to attend such activities is not to be unreasonably withheld by either parent.
(f)As otherwise agreed between the parents in writing, including text message.
6.Changeovers not occurring at school take place as agreed between the parents in writing including text message and failing agreement at McDonald’s Restaurant (Q Street (corner R Street, Suburb M).
7.The parents each ensure that X attends scheduled extracurricular activities in which he is enrolled while in that parent’s care.
8.The mother and father be permitted to:
(a)Liaise directly with X’s school, after school care or organisation that provides extracurricular activity to obtain any necessary information.
(b)Attend any school, after school care or extra-curricular activity event to which a parent would normally be invited to attend, including but not limited to parent-teacher interviews, concerts and sporting events.
(c)Receive all school newsletters, notices and school photographs (at their own expense).
9.The mother and father each:
(a)Inform the other parent immediately of any serious illness or injury sustained by X, including but not limited to any hospitalisation of him.
(b)Keep each other informed of any medical practitioners (including dental) or other health professional treating X and authorise such practitioners to communicate with and provide information to the other parent.
(c)Be permitted to attend any medical appointment/s pertaining to X and, where possible, the father notify the mother within 24 hours of making such appointment.
(d)Be permitted to liaise directly with any medical practitioner or other health professional to obtain any necessary information about X’s health.
(e)Provide X with any prescribed medication as directed by his treating medical practitioners or other health professional and ensure such medication travels with X at changeover.
10.The parents forthwith provide to each other details of any change of any residential address, telephone and email address and keep each other updated of any change to such details within 48 hours of such change.
11.The father be at liberty to provide a copy of these orders to any school attended by X and any of X’s health and allied treaters.
Documents relied upon by the Independent Children’s Lawyer
The Independent Children’s Lawyer relied on the following documents:
i)Outline of Case dated 4 September 2020;
ii)Family Report of Ms L dated 18 December 2019 ;
iii)Psychiatric assessment of Dr D filed 14 February 2020;
iv)Family Report of Dr J dated 15 June 2018;
v)Department of Health & Human Services Magellan Report dated 22 May 2019;
vi)Report of Dr K paediatrician 22 December 2019;
vii)Department of Education & Training Report by Ms T dated 19 September 2019;
viii)Affidavit of Dr C filed 25 October 2018;
ix)Documents produced under subpoena.
The Independent Children’s Lawyer’s witnesses
Ms L and Dr D were cross-examined by Counsel for the father and the Independent Children’s Lawyer. Counsel for the mother cross examined Dr D. Their evidence is referred to in greater detail in these reasons.
Ms L is a family consultant employed by the court who prepared the second family report dated 18 December 2019. She presented as a thoughtful experienced and credible expert.
Dr D prepared a psychiatric assessment of both parents, dated 14 February 2020. Dr D is an experienced forensic psychiatrist who gave highly credible and insightful evidence about the mother’s mental health.
Dr J prepared the first family report which was relied upon by the parties, although she was not required for cross-examination.
Dr C conducted a risk assessment of the maternal grandfather. She was not required for cross-examination.
Dr K, Paediatrician conducted an assessment of X. He was not required for cross-examination.
The following documents were tendered by the parties and received into evidence:
| F-1 | Annexures of maternal grandfathers affidavit – 28 October 2019 |
| F-2 | Proof of Evidence of maternal grandfather – 8 September 2020 |
| F-3 | Message received by maternal grandfather 12 June 2020 |
| F-4 | Video taken of mother, maternal auntie, maternal grandmother taken by the maternal grandfather taken Christmas Lunch 2011 |
| F-5 | Bundle of photographs |
| F-6 | Extract of DHHS File Page 7 |
| F-7 | Affidavit of Ms U sworn 13 February 2019 |
| F-8 | Affidavit of mother sworn 12 February 2019 |
| F-9 | Affidavit of mother sworn 28 May 2019 paragraph 38b |
| F-10 | Letter from mother’s solicitors to father’s solicitors dated 2 May 2019 |
| F-11 | Summary of V Women’s Service - 29 January 2019 |
| F-12 | DHHS notes from the subpoena dated 21 July 2020 – pages 4-5 of 18 of the notes but pages 10 and 11 of the e-Brief |
| F-13 | DHHS Report of notification of 21 April 2020 – pages 13-15 of father’s tender document 7 |
| F-14 | Email dated 6 May 2020 to staff at W Primary School and S School including two videos |
| F-15 | Mother’s affidavit sworn 12 February 2019 at paragraph 18 |
| F-16 | Mother’s affidavit sworn 28 May 2019 (paragraph 38c-k) |
| F-17 | Mother’s affidavit sworn 3 April 2019 (paragraphs 13-18) |
| F-18 | Magellan Report – 22 May 2019 |
| F-19 | Report of Dr Z – dated 2 May 2005 - document 6 of Father’s Tender Bundle |
| F-20 | The diary note of Ms AA of BB Women’s Service dated 6 May 2015 referring to conversation with Ms O |
| F-21 | Letter from LL Legal Service to fathers solicitors dated 30 June 2017 |
| F-22 | Email to mother dated 30 October 2019 - Page 3 and 4 of Document 9 of the Tender Bundle |
| F-23 | Email from mother’s solicitors to mother dated 5 June 2020 – Document 36 of the Tender Bundle |
| F-24 | Application for Intervention Order of the Mother dated 10 July 2017 – Document 10 of the Tender Bundle |
| F-25 | Application for Intervention Order of Mother dated 20 February 2019 - Document 11 of the Tender Bundle |
| F-26 | Application for Family Violence Support Package of the mother dated 14 November 2018 – Document 22 of tender bundle |
| F-27 | Application for Family Violence Support Package dated 22 June 2020 – Document 25 of Tender Bundle |
| F-28 | Documents produced pursuant to a subpoena addressed to DD Lawyers |
| F-29 | Mother’s Instagram post on 19 February 2018 |
| F-30 | Letter from Lander and Rogers to mother’s former solicitors DD Lawyers dated 23 September 2019 enquiring about immunisation of X |
| F-31 | Notice of Ceasing to Act of Mother dated 28 October 2019 – Document 62 of Joint Ebook |
| F-32 | Letter from Lander and Rogers to UU Health Service dated 8 October 2019 enquiring about immunisation of X |
No documents were tendered by the mother or Independent Children’s Lawyer.
Preliminary matters
Electronic Trial
The matter was heard electronically during the COVID-19 Pandemic, with the consent of both parties.
On 15 June 2020, I conducted a mention to ascertain the views of the parties to conduct the proceedings electronically by Microsoft Teams. Both parties were agreeable to that course of action and did not seek an adjournment until the court resumed in-person trials.
Procedural orders for an electronic trial were made and undertakings sought and accepted from Counsel as to the practicalities and logistics of the witnesses giving evidence and being cross-examined.
I am confidently satisfied that the matter was appropriate for an electronic trial and that justice and equity, and procedural fairness were afforded to all parties. I wish to compliment all Counsel for the manner and spirit of cooperation in which the trial was conducted.
Mother’s claims that she did not have sufficient time to prepare for and read documents in anticipation of the trial and that she had difficulties with the English language
A common theme running through the mother’s evidence was that she perceived that she had been disadvantaged because she had been legally aided and at times self-represented during the proceedings. She perceived that the father had an advantage because he had been able to secure private legal representation which had been funded by her father. She also claimed that she had difficulty understanding documentation and preparing responses to the affidavits of the father.
Paragraphs 7 and 8 of her trial affidavit refer to her concerns, where she concludes that there has been a clear power imbalance between the father and herself.
At times whilst being cross-examined, the mother insinuated that she had some difficulty understanding English and assimilating lengthy affidavits. I clarified her educational background, which was that she had attended tertiary education and obtained tertiary qualifications. She had also been offered a scholarship to attend a prestigious girl’s church school for secondary education, but for various reasons was unable to avail herself of that opportunity.
Counsel for the father cross-examined the mother about the dates on which she had been served with trial documents filed on behalf of the father. Exhibit F-22 is a copy email from the father’s solicitors to the mother dated 30 October 2019 which evidences that the mother was forwarded the father’s trial material on that date. The mother agreed that she had received the document, which was addressed to her correct email address although she seemed to imply that she had chosen not to open the emails as she found communication from the father’s solicitors overwhelming and confronting.
The mother filed an extremely comprehensive and detailed trial affidavit which she affirmed on 31 July 2020. Her trial affidavit is sophisticated and complex and demonstrates incredibly detailed understanding of many affidavits and expert reports to which it responds. The affidavit is some 67 pages in length.
Counsel for the mother, in his final written submissions, noted at paragraph 57:
Her creditworthiness was at times thin, e.g. when she gave evidence about her difficulties with the English language, answers inconsistent with her level of education and sophisticated use of language generally.
Counsel for the father submitted that the mother attempted to avoid responsibility by placing the blame externally and attributing deficiencies in her evidence to problems with reading writing and English skills, lack of time to prepare her material and having trouble with reading and writing since her accident and that her “serious PTSD” was causing the issues.
Counsel for the father further submitted that the mother was unable to sustain that narrative in light of contradictory evidence put to her in cross-examination and was forced to admit that she had been offered a scholarship at QQ School in high school, had completed year 12 and various tertiary qualifications, had received the father’s trial material on 30 October 2019, had received a draft of her trial affidavit from her solicitors on 5 June 2020, together with a further copy of the father’s trial material and earlier affidavits, and that only she made a causal connection between her accident and her reading and writing skills.
Whilst I understand the mother may perceive the trial process as confronting and difficult, I am satisfied that the mother has been accorded procedural fairness in terms of having received the father’s material many months prior to trial and had adequate opportunity to respond to the father’s trial affidavit and in some instances his interim affidavits, which she has done in her trial material.
I am also satisfied that she does not suffer from any disability with regard to her reading and writing skills and comprehension of English. In reaching that conclusion, I also have regard to an email written by her on 6 May 2020, which is exhibit F-14 which demonstrates the sophisticated and highly competent level of English in her writing.
The Applicable Law
Evidence
The standard of proof in this case is the balance of probabilities (s.140 Evidence Act 1995 (Cth)).
Section 140 of the Evidence Act1995 (Cth) provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject- matter of the proceeding; and
(c) the gravity of the matters alleged.
The father and mother relied upon their respective affidavits. The affidavits exhaustively recounted the history of the parties’ allegations against the other and their entrenched dispute. I have examined that evidence and do not propose to repeat it in these reasons.
In Bell & Nahos [2016] FamCAFC 244, Strickland J addressed the obligations of a trial judge in that regard as follows at [28]-[29]:
[28] … [I]t is not necessary in reaching a decision for a trial judge to refer to every piece of evidence or argument that is presented during a trial. That principle is well established in a number of authorities; I will mention two:
a) In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
b) In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 – 386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
[29] I can see no error here in her Honour’s failure to refer to all of the evidence of the mother in relation to this issue. Her Honour plainly considered the evidence that she needed to in order to reach her decision.
Statutory Pathway
Part VII of the Family Law Act 1975 (Cth.) sets out the provisions relating to children. Section 60B sets out the objects of the Act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the Act sets out how court is to determine what is in a child’s best interests.
Section 60CC(1) of the Act provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.
Section 60 CC(2) of the Act provides that:
The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Subsection 60CC(2A) provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
In McCall & Clark [2009] FamCAFC 92 (“McCall & Clark”) at [109], the Full Court said:
The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life. It does not give guidance to the interpretation of the phrase “meaningful relationship”.
At [117] of McCall & Clark, the Full Court said:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child [sic].
The Full Court said there were differing possible approaches to s.60CC(2)(a) of the Act. The Court preferred the “prospective approach”, although the “present relationship approach” may also be relevant.
At [118] of McCall & Clark, the Full Court defined both the “present relationship approach” and “prospective approach” as follows:
…
(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
…
(c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”). In this dispute I prefer the prospective approach.
In Mazorski & Albright [2007] FamCA 520, Brown J at paragraph [26], described a meaningful relationship as one “which is important, significant and valuable to the child” and the word meaningful is “a qualitative adjective, not strictly a quantitative one”.
Both parents predicate their case on having an excellent relationship with X. The father acknowledges that X has an excellent relationship with his mother and it is in his best interests for a relationship between X and his mother to continue, subject to addressing his protective concerns. The mother considers herself X’s primary caregiver and primary attachment and repeated that assertion during the trial, despite the fact that X had effectively been living in a shared care arrangement since separation.
She initially sought orders which she asserts would enable X to maintain a relationship with both parents whilst living with his mother, which would provide him stability and routine and an opportunity to be properly immersed in his Aboriginal culture and heritage. At the conclusion of the trial, she changed her position, so that the orders she sought were either a continuation of week about time or if the court did not consider that appropriate, X live with his father and spend five nights a fortnight with his mother.
I am able to infer from the mother’s alternate proposal in her final written submissions, that she is of the view that X living with his father and spending five nights a fortnight with her, would result in X maintaining a meaningful relationship with her.
During cross-examination, each of the parents was asked about the attributes of the other as a parent. The father was positive about the mother and her relationship with X, however the mother was less so about X’s relationship with his father.
The family report of Ms L dated 16 December 2019 observes as follows:
X appears to (sic) well-loved by both his parents, with each providing him with nurturing and meeting of his basic needs. Although the writer was unable to gain much information from his individual interview, X was observed to interact well and comfortably with each of his parents in this setting.
X has since separation spent time with both parents and developed significant bonds to each of them. X showed no signs of fear or anxiety in his interactions with either of his parents.
Ms L was not cross-examined about her observations referred to in the preceding paragraph and I accept her evidence that X has a meaningful relationship with each of his parents. I also conclude that it is in X’s best interests, to continue a meaningful relationship with each of his parents, subject to addressing the protective concerns raised by the parents.
The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse
Both parties assert that the other parent poses a risk to X.
The mother’s risk allegations asserted against the father
Remarkably, at first blush, the mother seemed to abandon the historical allegations of the father’s sexually inappropriate conduct towards X. During the trial, the mother’s case was initially based on the fact that she was the parent best placed to ensure that X maintained his cultural connection to both his father’s Torres Strait Islander heritage and his mother’s Aboriginal heritage. This was the justification for reduction of X’s time with his father. During the trial it became apparent that she believes that X is still at risk of inappropriate sexual conduct while in his father’s care.
The mother even went as far as to state at paragraph 331 of her trial affidavit, that the father has been “cleared of allegations”. That statement was qualified in her evidence during cross-examination to mean that she accepted that the DHHS and SOCIT found no evidence to warrant further investigation, albeit she was not confident to “put in” her observations of X’s sexualised behaviour.
During cross-examination of the mother, it became abundantly clear that her real concerns are that the father, or some unknown person who has contact with X during periods of time he is in his father’s care, poses a risk to X.
Her evidence was that she was too fearful of raising her real concerns, as she had been advised that to do so would result in X being removed from her care and to raise such allegations in the proceeding would not be advantageous for her. That was particularly so after her attendance at court in February 2020 when the matter was listed for trial.
Despite the statements in her trial affidavit, the reality is that the mother alleges and believes that the father has:
i)behaved in a sexually inappropriate manner towards X which has resulted in him engaging in sexualised behaviour;
ii)exposed X to an unknown person, who the mother and her family are very wary of who may also have sexually abused X;
iii)perpetrated family violence against her; and/or
iv)exposed X to serious psychological harm due to manipulation by the maternal grandfather.
I will address the allegations of the mother.
Allegations of Sexual Abuse
At paragraph 39 of her affidavit sworn 28 May 2019, the mother refers to disclosures made by X on 18 January 2019, that the mother’s former partner, Ms CC had touched him where his penis is, and that occurred when the mother went to the bathroom.
The mother reported the allegations to SOCIT and DHHS. X was interviewed by a member of SOCIT on 30 January 2019 in relation to allegations against both Ms CC and the father. X did not make any further disclosures and the mother was advised that there would be no further action by SOCIT.
Despite these alleged disclosures of X, the mother did not advise the father of the alleged disclosures pertaining to Ms CC.
The mother’s assertions and belief that X has been sexually abused by his father or someone in his household, arises from:
i)“disclosures” made by X to the maternal grandmother in January 2019; and
ii)X’s sexualised behaviour observed by the mother.
The mother’s evidence of X’s alleged disclosures is the set out at paragraphs 4 to 23 of her affidavit filed 12 February 2019 and paragraphs 12 to 17 of her affidavit filed 3 April 2019. In her affidavit filed 28 May 2019, at paragraph 38 the mother deposes, I have attempted to extrapolate on some of the disclosures X has made that causes me concern where I am able which may be summarised as follows:
i)on 25 January 2019, she was informed by the maternal grandmother that X had mentioned something about “kissing his doodle”. However, the affidavit of the maternal grandmother filed 13 February 2019, at paragraph 5, refers to “old people had kissed him on the doodle”. On 29 January 2019, in response to questioning by the mother about “your dad plays games” X responded that his father plays private part games, and pointed to his penis;
ii)on 17 February 2019, in response to questioning as to whether it was safe to spend time with his father, X responded about playing games and attempted to assure his mother that he wouldn’t play those games and that they aren’t dangerous just silly and he is safe at his [grandfather’s] house because he won’t play those games any more.
The mother reported the allegations pertaining to both Ms CC and the father to SOCIT and DHHS. X was interviewed by a member of SOCIT on 30 January 2019 in relation to both allegations. X did not make any further disclosures and the mother was advised that there would be no further action by SOCIT. The mother’s belief, as disclosed to Dr D, was that X did not make any disclosures during police interviews because he was too scared to talk.
Following the alleged disclosures, the mother unilaterally suspended X’s time with his father. On 7 March 2019, the mother filed a Notice of Risk alleging that X had suffered sexual abuse whilst in the care of his father. Subsequently, DHHS interviewed both parents and X and liaised with SOCIT, W Primary School, Ms OO from V Women’s Service and an Aboriginal women’s refuge. X did not make any reports regarding the alleged sexual abuse and no sexual abuse concerns were identified by the authorities. There were however recommendations in a report of the DHHS that X would benefit from therapeutic counselling and that each of the parents may also benefit from independent counselling.
It is quite clear from the mother’s comments to both Dr D and Ms L that, at the very least, at the time of the interviews, she believed that the father has sexually abused X.
During the interview with Dr D which took place on 4 September 2019 the mother stated:
I believe that Mr Gosling and Ms CC have violated X.
I’m worried sick. Every time he goes back there, he ends up in the arms of a perpetrator.
Dr D further reported that the mother considers that Mr Gosling had been overlooked, had not been properly investigated, and that she knows that he is a paedophile. She also stated:
That’s what my son told me, I have no doubt. My son is very articulate. There is no possibility that I can be wrong.
During the interview with Ms L which took place on 26 November 2019, Ms L recorded that the mother had said:
her worst fear “is that my son will be put in the care of the perpetrator, Mr Gosling”.
Ms L also recorded that Ms Sharp unequivocally said she believed X had been sexually abused by his father.
During cross-examination, the mother attempted to ameliorate her belief that the father had perpetrated sexual abuse against X and gave evidence that she was no longer certain that the perpetrator of X’s abuse was the father personally. She was vague about who she thought was responsible, and maintained that the abuse could not have occurred in her household in recent times as X had had no contact with any other adults without the mother being present. She therefore extrapolated that the abuse must have occurred in the father’s home.
It was abundantly clear from her demeanour and answers during cross-examination that the mother still fervently and unequivocally believes that Mr Gosling has sexually abused X. The attempt to distance herself from that belief, in my view is not genuine nor indicative of her true belief about the identity of the alleged perpetrator.
The mother’s evidence during cross-examination was that X’s ongoing sexualised behaviour was further proof that X had been sexually abused.
On 21 April 2020, a further notification was made to the DHHS alleging that the child had engaged in sexualised behaviour resulting from playing games with his father. The father was not contacted by the DHHS nor was he aware of the notification. During cross-examination, the mother denied making the notification and assumed that the notification had been made by his school.
In May 2020, the mother took two videos of X whilst watching television, which she said were indicative of his sexualised behaviour. Her evidence was that he had engaged in even more concerning behaviour but that was all she had managed to record. The mother did not present any evidence that any other person, other than herself, had observed the alleged sexualised behaviours.
On 6 May 2020, the mother forwarded an email to the Principal, Vice Principal and some teachers of W Primary School and to teachers at S School, and attached the two videos.
The email and videos are exhibit F-14 in the proceedings. The mother’s assertion that the school made the notification on 21 April 2020 could not possibly have happened, as the email attaching the videos was not forwarded to the schools until 6 May 2020, two weeks or so after the notification was made.
The videos were played by Counsel for the father prior to being tendered and again to both of Dr D and Ms L.
When asked by Counsel for the mother whether he saw any sexualised behaviours in the videos, Dr D commented that there was nothing in the second video other than a boy in pyjamas watching a video, and in relation to the first video, he appears to vibrate, but to suggest that as sexualised, would require more.
When the same question was put to Ms L, after viewing the videos, she accepted that there was no evidence of any untoward or sexualised behaviour in the videos. She was also concerned that the mother had taken the videos and forward them to the school, rather than adopting the most appropriate course of action which was to go to the DHHS and the police.
In her final submissions, Counsel for the father submitted that progressively over time and during the trial the mother’s story changed in a way that provided further evidence of abuse by the father.
The contradictory versions are deposed to in various affidavits filed on behalf of the mother. The affidavit of the maternal grandmother of 13 February 2019 at paragraph 5 states that X said to her “that old people kissed him on the doodle”. At paragraph 6 of the same affidavit, the maternal grandmother deposes that she suggested to X that he tell his parents and that X told her “his father always played games”, which was interpreted as referring to screen games.
At paragraph 4 of the mother’s affidavit filed 12 February 2019, she deposes, that upon returning home from his father’s, X then told Ms U that “old people kissed him on the doodle”. In her affidavit of 28 May 2019, the mother again referred to the allegation as someone “kissing his doodle”. The mother, during cross-examination acknowledged that her allegations moved from past to present tense, which she attributed to her ostensible lack of command of English.
Furthermore, during cross-examination, the mother suggested that the maternal grandmother had formed a connection between the child’s two statements, which was not reflected in her affidavit.
Counsel for the father submitted that the first time the mother alleges a connection between the father, the games and X’s penis, is in the mother’s affidavit of May 2019.
During cross-examination, the mother agreed that she could not deny the different versions of events but she blamed this on her ostensible difficulties with English and her lack of opportunity to review affidavits she had sworn at various stages of the proceedings. I do not accept that evidence of the mother.
Counsel for the father submitted that the mother’s allegations that the father had sexually abused the child grew over a period of weeks and months. Her language changed and the connection she made changed and acts which she had previously attributed to her partner Ms CC were subsequently attributed to the father.
Counsel for the mother put to the father that his alleged sexual abuse of X was a dead issue. The father agreed with that proposition. He was not pressed further about allegations of sexual abuse of X, which is not surprising given the manner in which the mother presented her case.
Counsel for the father, at paragraph 29 of her final submissions, submitted that the father is entitled to a positive finding that he does not constitute a risk of sexual or other assault against X.
Having considered the matters referred to in the previous paragraphs, I agree with the submission referred to in paragraphs 100 and 101 hereof and find that the father does not pose a sexual abuse risk to X.
Allegations of family violence
The mother alleges that the father perpetrated family violence towards her during the relationship and has continued to do so post separation.
Paragraph 15 of her trial affidavit refers to her allegations of domestic violence against the father during the relationship. She alleges:
i)when eight months pregnant, the father threw a soft drink in her face whilst on a train at EE Train Station;
ii)pretending to punch her in the stomach when they were at his share house in Suburb FF;
iii)on three occasions, pushing her to the ground or into furniture while screaming at her.
These allegations were not elaborated on during the trial, and nor was the father cross-examined about these allegations. The father denies the allegations and says it was the mother who was violent to him during the relationship and on an occasion post separation, on 2 September 2016, when the mother hit him with an umbrella. I refer to that incident and my findings in subsequent paragraphs.
During cross-examination, the mother conceded that during the relationship she:
i)had thrown items at the father;
ii)could have called him “dumb dumb”;
iii)had locked the father out of the house;
iv)had posted false allegations on Facebook about the father assaulting the mother.
I prefer the evidence of the father to that of the mother about the conduct of both parties during the relationship, and I accept the father’s evidence about the mother’s dysregulated behaviour during the relationship.
The mother refers to various allegations of alleged family violence perpetrated by the father post separation. I do not propose to address each and every incident an allegation raised by the mother, however will deal with the most substantial allegations. These are as follows:
i)the incident on 2 September 2016 which the mother refers to as a home invasion;
ii)the father’s attendance as X’s first day of school in January 2019;
iii)the father smacking X.
Firstly, I will address the incident on 2 September 2016. Paragraph 27 of the mother’s trial affidavit provides her version of events which may be summarised as follows:
i)X was due to return to his father’s care on Friday, 2 September 2016, as Father’s Day was on Sunday, 4 September 2016, however when she was packing his bag the child was very clingy and would not leave her side;
ii)she then asked the father for X to remain with her to settle him until the following morning, Saturday, 3 September 2016;
iii)the father refused the mother’s request and he and the maternal grandfather attended at the mother’s home on Friday, 2 September 2016;
iv)both the father and the maternal grandfather entered her home by force, and pushed past the maternal grandmother;
v)the father entered into the mother’s bedroom, as she was in bed at the time recovering from the injury sustained in a car accident, when the father screamed at her words to the effect “you should be dead. Ms JJ nearly killed our son”;
vi)the mother was fearful and got out of bed, pushed the father towards the front door and told him to “get out of my house”;
vii)because the father and maternal grandfather refused to leave the house she did pick up an umbrella but did not hit anybody with it, prior to the maternal grandmother taking the umbrella off her.
The father’s evidence about the incident may be summarised as follows:
i)X had been in his care since shortly after 16 August 2016 to enable the mother to recover from her injuries sustained in a car accident in South Australia;
ii)subsequent to the accident the mother’s behaviour changed and became more erratic including changing the child’s care arrangements without consulting him;
iii)on 2 September 2016, two days before father’s day, the mother and the father agreed that the father could collect X from the mother’s house that afternoon;
iv)on that morning the mother telephoned the father and told him that she was going to sell his personal possessions which were still in her house unless he gave her money and that he would not be able to collect X until he had given her the money;
v)as a result of that conversation the father did not want to attend the mother’s home alone so he asked the maternal grandfather to attend with him, which he did;
vi)the maternal grandmother answered the door and invited the father and the maternal grandfather into the house;
vii)the maternal grandfather told the father that the maternal grandmother had told him that she had concerns about the mother’s capacity to care for X and suggested that the father assume primary care of him;
viii)the father went into the house to try and collect his belongings when the mother came out of her room with an umbrella and started hitting him forcefully with it, in the presence of X and the maternal grandparents;
ix)X was frightened so the father pretended that he and the mother were playing a game to stop X’s distress;
x)the mother went towards him again and is positioned herself so that it appeared she was going to stab him with an umbrella, at which point the maternal grandfather went over and grabbed the umbrella from her.
The evidence of the maternal grandfather about the incident is generally in accord with the evidence of the father. He corroborates the evidence of the father.
The maternal grandfather was not cross-examined by Counsel for the mother and his evidence is unchallenged.
During cross-examination, the mother conceded that her mother had stepped aside to let the father and maternal grandfather into the house but had stepped out of the way because she was frightened.
The mother denied the suggestion that she had the strength to use an umbrella to stab the father due to the severity of the injury she had sustained although since the accident she did not have great the greatest recollection.
When it was put to her that the evidence of two witnesses who remembered the incident, namely the father and maternal grandfather, should be preferred to her evidence when she was unable to recall, she did not agree with that proposition.
Having regard to my comments about the father and mother as witnesses, and in particular my observations that the mother is myopic in her view of events and was simply not prepared to consider any alternative explanation to her fixed and rigid views, I prefer the evidence of the father to the evidence of the mother. Additionally, I have had regard to the submissions of the mother’s own counsel in his final written submissions that the evidence of the father in relation to the incident of 2 September 2016 should be preferred to the evidence of the mother.
I also accept the unchallenged evidence of the maternal grandfather about the events on 2 September 2016. I find that the father and maternal grandfather had legitimately gone to the mother’s home to take X into the father’s care, as had been agreed. I do not accept the characterisation of the incident as a home invasion, nor do I accept that it is demonstrative of family violence perpetrated by the father.
Secondly, I will address the mother’s allegations that the father’s attendance at X’s first day of school was family violence. This incident was referred to as the circumstances justifying an intervention order, in the mother’s application for an intervention order made in April 2019, despite the allegations being linked with the mother’s allegations of sexual abuse.
The father deposes to the events surrounding X’s first day of school at paragraphs 85 to 91 of his affidavit of 28 October 2019, in the context of the sexual abuse allegations.
His evidence may be summarised as follows:
i)X was due to commence his prep year at W Primary School on 31 January 2019, when he was in his mother’s care;
ii)he collected X from the mother on 18 January 2019;
iii)he was not informed that 25 minutes prior to collection by his father, X had made “disclosures” that the mother’s then partner, Ms CC had touched him in the genital region;
iv)he returned X to his mother on 25 January 2019;
v)on 30 January 2019, he received a series of text messages from the mother, insisting that he not attend X’s first day of school as she did not want to have contact with the father;
vi)he was surprised at the messages as he had assumed that both parents would attend X’s first day of school, particularly as both parents had attended orientation days irrespective of who had X in the care at the time;
vii)on 31 January 2019, the father attended school on the morning to show support for X;
viii)he kissed and hugged X and left the school grounds without speaking to the mother and making sure there was distance between them.
The mother deposes to the events surrounding X’s first day of school at paragraphs 287 to 288 of her trial affidavit, which may be summarised as follows:
i)on 25 January 2019, X made disclosures to the maternal grandmother;
ii)on 26 January 2019, the mother’s sisters attended her house for a family discussion about what action to take subsequent to the disclosures;
iii)she believes that she acted protectively and in X’s best interests;
iv)X was fearful when he saw his father in the school foyer and after his first day at school, he said he never wanted to see his dad ever again.
During cross-examination, photographs of X and the father taken on the first day of school were put to the mother. Those photographs are annexure A-7 to the father’s affidavit of 28 August 2020.
The mother agreed that the photographs did not show that X was fearful of his father at all, rather the contrary.
Where the evidence of the father and the mother differs in this regard, I prefer the evidence of the father, which is corroborated by the contemporaneous photographs evidencing X’s apparent delight with his father’s presence at his first day of school. I do not find that the father’s attendance at school on X’s first day is family violence.
The mother’s evidence during cross-examination was that she was so fearful of the father that she sought to enter a secure refuge in 2018. She was cross-examined by Counsel for the father about the circumstances of her entering a refuge. It was submitted by Counsel for the father that the mother’s evidence was simply not true and that she had elaborated and sought to rely on the allegations of violence, which were historical to obtain financial assistance via victims family violence support packages.
Exhibits F-26 and F-27 are the mother’s applications for financial support packages.
I do not accept that there is any evidence which would justify a finding that the father perpetrated family violence on the mother which would require her to enter a refuge.
The father smacking X on the leg
The father was also cross-examined about comments X had made to the first family report writer, Dr J. At paragraph 31 of Dr J’s report X reported that his father had smacked him.
The father’s evidence was that he did not parent with anger and aggression. He conceded that on one occasion when he was in City GG with his mother, and whilst walking past an ice cream shop with X on his hip, X wanted an ice cream but the one he wanted was not available. He was told that his choice would have to be bought elsewhere and he smacked the father on the side of his face. The father then pulled him off him, smacked him on the leg and took him home. X was very shocked and the father immediately felt embarrassed and remorseful and apologised. The father also stated that it was not a practice he used and that nobody should do that to a child.
I accept the father’s evidence about smacking his son on the leg in the circumstances described by him. I am not persuaded that the father has subjected X to any family violence, save for this incident and I find that he does not pose a future risk of family violence to X.
The mother’s conduct during the proceedings is indicative of her view that X is safe in his father’s care and is not at risk. The matters supportive of that proposition are referred to at paragraph 195 of the closing submissions of the father and are as follows:
i)subsequent to the car accident on 16 August 2016, when X was three years old, he remained in his father’s care for approximately two weeks;
ii)on 13 January 2017 when the mother felt suicidal, she called the father to care for X;
iii)the orders sought by the mother in her response to an Initiating Application on 15 August 2017, where she sought interim orders for X to live with his father three nights per week;
iv)in May 2018, during the course of the family report interview with Dr J, Dr J reports that the mother was seeking a roughly 50-50 care arrangement, and adamant such an arrangement would continue, provided the father was not living with the maternal grandfather;
v)on 30 May 2019, she consented to X living in a week about arrangement;
vi)she agreed to X living with the father for a 13 night block by way of make up time to enable her to take X to Town RR.
In conclusion, I do not accept that the father poses a risk to X as a result of alleged family violence. To find otherwise is completely contradictory to the final orders sought by the mother, whereby the existing week about arrangement continues, or alternatively X live with his father and spend substantial and significant time with her.
Furthermore, Counsel for the mother, at paragraph 29 of his final written submissions submitted that the father is entitled to a positive finding that he does not constitute a risk of sexual or other assault against X.
X at risk with the maternal grandfather
In her trial affidavit, the mother makes allegations against the maternal grandfather about his abusive conduct and drug use during the mother’s childhood. At paragraphs 158 to 175, she responds to affidavits of the maternal grandfather filed 25 May 2018 and 13 September 2018. At paragraphs 332 to 339 she responds to the affidavit of the maternal grandfather filed 28 October 2019.
During the trial, the maternal grandfather gave brief evidence in chief and was available for cross-examination. Neither Counsel for the mother nor the Independent Children’s Lawyer sought to cross-examine the maternal grandfather. His evidence about a formally warm and supportive relationship between himself and the mother was not challenged. Unfortunately the relationship at present is one of disappointment and acrimony on the part of the mother.
Dr C conducted a risk assessment of the maternal grandfather which is annexed to her affidavit sworn 28 October 2018. She concluded at paragraph 124 of her report as follows:
… There is no basis on which to suggest that Mr TT represents a risk of violence generally or a risk of violence towards X.
Dr C was not required for cross-examination and I accept her conclusion and find accordingly.
Counsel for the mother invited findings that the mother’s contribution to the breakdown of the relationship with her father was to do with the deep seated psychological difficulties that afflict the mother. I agree with that submission and find accordingly.
Despite the allegations levelled at the maternal grandfather, the orders sought by the mother do not seek a restraint on the father bringing X into contact with the maternal grandfather in any manner at all. The order which the mother seeks pertaining to the maternal grandfather is to prevent the father disclosing the mother’s address to either the maternal grandfather or his partner, Ms H.
The mother’s preparedness to abandon an order seeking to restrain X from spending unsupervised time with the maternal grandfather is contradictory to any allegation that he presents a risk to X.
In his final submissions, Counsel for the mother, in relation to the maternal grandfather submitted:
i)in arriving at appropriate orders for X it is only necessary to conclude (as a Senior Registrar already has) that Mr TT does not pose any unacceptable risk to X;
ii)it is appropriate for X to have a “traditional” grandfatherly place in his life as a proposed by the father;
iii)it is only necessary to find that the mother’s contribution to the breakdown of that relationship is to do with deep-seated psychological difficulties that afflict the mother.
Counsel for the Independent Children’s Lawyer in his final written submissions, submitted that the permanent injunction sought by the mother regarding disclosure of her address to the maternal grandfather was unnecessary and not supported by the evidence.
I agree with that submission and do not intend to make an order restraining the father from disclosing the mother’s address to the maternal grandfather.
The father’s risk allegations asserted against the mother
The mother’s mental health is central to her alleged risk to X.
The father submits that exposure to the mother’s mental health, including her fervent and unwavering belief that:
i)the father has sexually abused X; and
ii)the father has persistently engaged in domestic violence towards the mother
amounts to a risk of harm to X. However, that is not an unacceptable risk so as to require X’s time with his mother to be supervised or severely limited. Rather, to ameliorate any risk from her mental health the father’s proposal is that X remain primarily in his care and spend time with his mother four nights a fortnight.
Dr D is a forensic psychiatrist jointly appointed to carry out psychiatric assessments of both the mother and the father. His report dated 15 September 2019 is annexed to his affidavit filed 14 February 2020. His report addressed, in terms of their respective psychiatric functioning, whether either parent posed a risk to their son.
Dr D interviewed the father on 3 September 2019. In relation to the father, Dr D concluded:
Mr Gosling described symptoms consistent with an Adjustment Disorder with Anxious Mood which has since resolved with treatment. There are no indications of personality dysfunction, and from a psychiatric perspective, he does not present as a risk to X.
Diagnosis
Mr Gosling has an Adjustment Disorder with Anxious Mood in remission.
In matters of risk, Mr Gosling impresses as a protective and well intentioned parent. He does not describe symptoms of a psychiatric condition. There is no evidence of a Personality Disorder in his case. He is not a risk to X in my view.
Neither Counsel for the Independent Children’s Lawyer nor the mother cross-examined Dr D about his report of the father. I accept Dr D’s report and conclusions about the father’s psychiatric well-being.
Dr D interviewed the mother on 4 September 2019 for a period of three hours. In relation to the mother, Dr D concluded:
Diagnosis
·Complex Post-traumatic Stress Disorder (Childhood Abuse)
·Borderline Personality Traits
·Somatic Symptom Disorder
·Persistent Depressive Disorder (Dysthymia) – Untreated
Ms Sharp by any measure impressed as unwell. She began her account with a strident critique of the court system which she described as “a massive failure”, depicting her role as X’s protector and herself as the victim of racial prejudice. Over the course of the assessment her demeanour changed, appearing at times listless, and struggled to maintain her narrative account, declining into a state of resignation on the basis of what appeared to be her recognition that her account was not sustainable and as a consequence was facing the likelihood of losing residence of X.
In contrast, Ms Sharp’s presentation raises significant concerns in regard to her mental health and her ability to separate her own needs from those of X. There are suggestions of an over-dependent relationship upon him serving as the one source of gratification in her otherwise somewhat empty and stressed existence. Throughout the interview she demonstrated little insight as to her contribution to her current demise, much of her energy being spent in her attempt to destabilise the relationship between X and his father with little in the way of a mature capacity to parent. Given those of various considerations, I consider Ms Sharp to be a risk to X’s wellbeing.
At the conclusion of the trial, the mother proposed that the existing week about arrangement continue, however, in the event she was unsuccessful with that proposal, then X live with his father and spend time with his mother in accordance with the proposals of the Independent Children’s Lawyer, except that X’s alternate weekend time with his mother should extend from Thursday to Monday morning, rather than conclude on Sunday evening.
The father submits:
i)although the mother poses a risk to X because of her mental health and entrenched and intractable views, that risk is not unacceptable so as to require the child’s time with her to be supervised;
ii)the extent of the risk is sufficient so that the court should regulate the live with arrangements for X to reduce the time he is currently spending with his mother, so as to minimise the risk her mental health difficulties pose to X.
The mother’s formal position prior to and during the trial was that X’s time with her should be increased, and the father’s time should be reduced, as she is the parent best placed to meet X’s cultural needs arising from the cultural heritage of both parents.
It is difficult to reconcile her formal position prior to and during the trial, with her entrenched views, which became abundantly clear during cross-examination, that the father poses an unacceptable risk to the child because he has sexually abused the child and perpetrated family violence against her and X. During cross-examination, she admitted that she had modified her real view, as she was concerned it would adversely impact her prospects in the litigation.
Having regard to my findings that the mother’s mental health poses a risk to X, it is my task to balance the risk to X with the child’s right to maintain a meaningful relationship with his mother, in the ultimate context of his best interests. That is so particularly because of X’s unequivocal desire to spend time with his mother.
There have been two family reports in the lengthy saga of this proceeding. The first family report was prepared by Dr J on 15 June 2018 which was prior to X’s alleged disclosures of his father’s sexual abuse.
Dr J concludes that X’s best interests would be served by continuing to live in a week about arrangement with both parents, which has been the case since orders were made in 16 August 2017, subject to a disruption of time surrounding the alleged sexual abuse disclosures.
At that time, both parents were also of the view that X’s best interests would be served by him continuing to live in a week about arrangement. The father was cross-examined by his comments during the family report whereby he stated to Dr J that X would be devastated if time with his mother were reduced. The mother demonstrated insight by her comments that X would be better off living in a shared care arrangement, despite her personal desire to have X primarily in her care. There could be no doubt that at that time both parents considered that X had an excellent relationship and attachment to each of them and that he was doing well in a shared care arrangement.
The second family report was prepared by Ms L, a family consultant employed by the court, in December 2019. That report was clearly after the alleged sexual abuse disclosures in January 2019. Ms L also had the assistance of Dr D’s psychiatric evaluation of both parents.
Ms L’s primary recommendations in the report were that the parents should share equal parental responsibility for X and that he should continue to live in a week about arrangement with each of his parents.
Ms L was cross-examined by both Counsel for the father and the Independent Children’s Lawyer. She was not cross-examined by Counsel for the mother.
Ms L’s evidence was:
i)she could not support a reduction of time between X and his mother to two nights a fortnight with his mother;
ii)X was a special needs child who has ADHD;
iii)she was not sure where he was up to with his education but there had been significant difficulties with his behaviour, separation anxiety and his learning was not where it should be;
iv)combined with his Indigenous culture, separating him from one parent in favour of the other parent would not be helpful for him;
v)despite his mother’s mental health he has a very attuned relationship with her and it would be detrimental to him if that time were reduced to the extent proposed initially by the father;
vi)an arrangement where X spent four or five nights a fortnight would be very different to a reduction to two nights a fortnight and would enable both parents to be involved in X’s education;
vii)the following were matters of concern:
(a)the mother’s failure to advise the father of her allegations of sexual abuse and a DHHS investigation into his conduct;
(b)the mother’s failure to disclose that she was living in a hotel in Suburb FF and at times had no food in the fridge;
(c)the mother living in temporary accommodation prior to moving to transitional accommodation;
(d)the mother’s lack of instability and housing insecurity;
(e)the fact that the mother was not forthcoming in reaching out for assistance;
(f)the videos of X which the mother considered sexualised behaviour and which she forwarded to the school rather than to the DHHS;
(g)the lack of capacity to co parent, cooperate and communicate;
(h)X’s guarded behaviour with his father;
viii)the mother’s persistent belief that the father had sexually abused X would be detrimental to him as he would leave his mother’s home with the perception that he would be unsafe in his father’s care;
ix)the fact that she was watching her child hump a pillow was an indicator that she would almost certainly question the child about what had happened in his father’s care and would be overly worried about anything she considered to be sexualised behaviour;
x)it was highly likely that the mother would keep looking for behaviours and indications in her mind that the child’s behaviour was indicative of sexual abuse;
xi)agreed the mother had very little insight into the current situation which would impact on X although she was not sure how;
xii)the incidents on 2 September 2016 and 2017 (Town P incident) show a level of emotional dysregulation in which the mother’s history must have played a role;
xiii)the mother’s failure to engage with the father about the child’s immunisation and enrolment in S School was a concern;
xiv)the fact that the mother had cut off her relationship with the maternal grandmother in December 2019 and had only recently reconnected on zoom and had also severed her contact with her sisters was concerning behaviour and in particular did not enable extra “eyes” on the child;
xv)if the mother were to obtain proper treatment it would benefit her relationship with her son, although it was unlikely that she would engage with treatment options given the proposed management does not reflect mother’s cultural opinions;
xvi)she was not sure the mother would follow through with treatment even if it meant losing time with her son.
At the conclusion of cross examination, Ms L agreed that it would be almost impossible for the parents to have equal shared parental responsibility and make shared decisions for health and education, in the context of the mother’s fervent belief that the father had sexually abused X and had failed to cooperate and communicate with the father.
Despite vigorous cross-examination by both Counsel, Ms L could not and would not support a reduction of X’s time with his mother to the extent initially proposed by the father. She could not come to terms with how X, who had a close and loving relationship with his mother, would cope if his mother’s time were minimised to such an extent that she had very little involvement in his day-to-day life including no provision for her to take X to school and consequently not be involved in his school life, nor have any holiday time with his mother. She struggled with the concept that X’s time with his mother should be so drastically reduced, although it might be justified because of the current health concerns.
When asked by me what, in her view would be appropriate time with his mother, if I determined that X should live primarily with his father, she responded by proposing that alternate weekend time should be extended to overnight Sunday so that the mother could return X to his school on Monday morning and involve herself in his school life. She also considered that Wednesday time could be more limited initially to enable the mother to address her mental health issues, and progress to overnight Wednesday until Thursday morning at the commencement of the 2021 school year. She was also supportive of week about time continuing during the holidays as holiday time was intrinsically different and involved less routine than term time.
I consider that it is in X’s best interests that his mother be involved in his every day and school routine rather than making orders which would provide for limited engagement by the mother in X’s school routine.
I agree with Ms L that such a drastic reduction in X’s time with his mother, as initially proposed by the father would not strike the requisite balance between minimisation of risk which the mother’s mental health poses to X and the child’s obvious need for his mother both emotionally and culturally.
In my view, the appropriate balance between the detrimental effects to X of his mother’s entrenched adverse mental health and his obvious need to maintain a relationship with his mother, and which would be in his best interests would be achieved by X living with his father and spending time with his mother each alternate weekend from Friday until the commencement of school Monday morning, together with overnight time on alternate Thursdays, school holidays and special occasions.
The evidence as to the practicalities of the father’s circumstances give me confidence that he will diligently and lovingly parent X. He is in secure and stable accommodation and employment and has the benefit of a loving partner, Ms G, who is supportive of caring for X. He has demonstrated a commitment to ensuring X attends appropriate schooling and attends to health issues such as immunisation. I am also confident that he will encourage and facilitate X’s cultural heritage, both Torres Strait Islander and Aboriginal and that he will encourage X to participate in his mother’s cultural life, both Indigenous and artistic.
I have no doubt the father is a committed and caring parent who will ensure X meets all of his educational requirements and opportunities and will seriously consider his responsibilities towards his son to ensure that X has every opportunity to receive the benefits of his mother’s love and cultural background whilst addressing the protective concerns.
Counsel for the mother submitted that the time proposed by the initial proposal of the father fell short of substantial and significant time, as mandated by the provisions of s65DAA(3). At the time of those submissions, the father’s amended proposal had not been made. The amended proposal includes additional overnight time in a 14 day period, sharing of NAIDOC week, special occasions and holiday time.
I am satisfied that the amended proposal of the father is for substantial and significant time with his mother.
The reasons for the mother’s proposal that X’s time with her be extended to a four night block each alternate weekend, together with a Wednesday overnight in the other week are as follows:
i)the mother cannot have a meaningful relationship with X if she is not familiar with his school life;
ii)the father’s initial proposal gives her but a passing acquaintance with the end of the school week ;
iii)the father’s initial proposal for afternoon time only on a Wednesday does not allow the mother to have significant interaction with the school community;
iv)X and the mother should have the experience of her taking him to school and being involved in the day-to-day issues of his school life.
During cross-examination, the father remarked that a significant concern was the mother’s historical lack of engagement with X’s school and her inability to get him to school regularly and on time, irrespective of whether she was experiencing personal difficulty in her life.
The father’s amended proposal enables the mother to have meaningful involvement with the school during school terms. It enables the mother to be involved in X’s school time by collecting him from school in week one of a fortnightly cycle, each alternate Friday and delivering him to school the following Monday morning. In week two, the mother will collect X from school each alternate Thursday and deliver him to school each alternate Friday morning.
Counsel for the father submitted that X will benefit from living primarily in his father’s care and that he should be permitted to enjoy sufficient un-interrupted care to settle into the routine of his father’s house hold, and as described by Dr D to experience that soothing time.
I intend to make orders for X to spend time with his mother during the school terms in accordance with the father’s proposal and to make orders that X spend holiday time with his mother for one week of all school term holidays and during the long summer holidays on a week about basis. I will also order that NAIDOC week be spent with the parents on an annually rotating basis, with the mother to have five consecutive nights in her year, and that X spend special occasions with each parent.
The Independent Children’s Lawyer’s proposed configuration of time between X and his mother is sensible, as it provides consistency and routine, so that X would understand that each Thursday night he would be collected from school by his mother and remain in her care on Thursday nights. However, as X will with live with his father, I consider that the configuration of time with the mother as proposed by the father should be incorporated into the orders, as he is best placed to appreciate and balance his commitments with the care of X.
The orders which I intend to make will strike an appropriate balance between the need to protect X from the effects of his mother’s mental illness whilst ensuring regular and frequent time with his mother. I am also satisfied that the proposal is within the statutory definition of substantial and significant time.
Parental Responsibility
Section 61DA provides, when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child, or it is otherwise not in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The father seeks an order for equal shared parental responsibility, subject to him having sole parental responsibility for issues of education and health. Although the mother initially sought an order for equal shared parental responsibility she has conceded in her final written submissions that the father should have sole parental responsibility for X’s education and health needs. The Independent Children’s Lawyer, in his final written submissions, seeks an order for equal shared parental responsibility, save that the father have sole parental responsibility in relation to X’s health and education.
The father seeks an order for sole parental responsibility for education and health for the following reasons:
i)he seeks an order that X primarily live with him and spend time with his mother;
ii)the mother has not engaged in a meaningful way in decision-making for X’s health and educational needs;
iii)X has had a disjointed and disrupted start to school specifically in prep when the mother unilaterally removed him from his school;
iv)in late 2019, the mother has failed to attend appointments with W Primary School to plan support for X’s education;
v)the mother failed to engage with the father or sign documents to enable X’s attendance at S School until a day or so prior to his commencement, and needed to issue an application in the court to compel her to do same;
vi)in December 2019, Dr K, Paediatrician diagnosed X with ADHD and is of the opinion that X will require supports in the future and the father should be able to obtain those supports in a timely manner without the mother refusing to engage and provide her consent to any proposed treatment;
vii)the parties have no demonstrable ability to cooperate in decision-making for X. Examples of same are the difficulties and lack of communication regarding X’s immunisation, speech pathology and paediatric assessment by Dr K;
viii)in the context of the mother’s belief that the father has sexually abused X, it would be almost impossible to expect future cooperation between the parents.
The mother initially sought an order that the parties retain equal shared parental responsibility for X. She did not specifically address the reasons why other than a statement in her Case Outline that the presumption of equal shared parental responsibility has not been rebutted. She conceded at the conclusion of the trial that the father should have sole risk parental responsibility for health and education except cultural education in the TT People and VV People traditions.
Whilst I understand it is a significant step to deprive a parent of parental responsibility, I can only reach the conclusion that it is appropriate for the parent with whom X will primarily be living, the father, to exercise sole parental responsibility for him in matters pertaining to health and education. I agree with the submissions of the father as to the necessity for an order for sole parental responsibility for education and health to be vested in him, and I am comfortably satisfied that the presumption of equal shared parental responsibility has been rebutted. X is a child with special needs in both education and health, who has been diagnosed by a paediatrician as having ADHD.
It would be almost impossible for the parents to cooperatively reach decisions in relation to such important matters, based on the historical lack of communication and the mother’s responses during cross-examination, why she had not responded to text messages from the father. She thought many of the father’s messages to her had not actually been composed by the father and she had chosen to ignore them. It would also be highly unlikely that the parents would be able to work cooperatively to make decisions given the mother’s belief that the father has sexually abused X. In the context of X’s health and educational needs, his interests are best served by a parent being able to make decisive and timely decisions to advance his interests.
I am satisfied that the mother will attend to X’s cultural education in her heritage and that the father will be amenable to that. There is no necessity for an order in those terms.
I am particularly concerned by three past disputes between the parents. Firstly, the mother’s lack of engagement to agree to X attending S School, when it was clearly in his best interests to do so. The father was forced to go to the expense and trouble of filing an Application in a Case on 24 January 2020 seeking the mother’s cooperation to sign documents to enrol X at S School. It was only in the face of the application to the court and at the last minute that the mother agreed to sign enrolment documentation. It is simply not tenable for the father to be placed in a position that he will need to apply to a court to make timely and decisive decisions about X’s education in the future. The mother’s evidence during cross-examination did little to provide me with any sense that she would be inclined to cooperate in such decision-making in the future. A further dispute between the parents and delay in X accessing appropriate educational services is clearly contrary to his best interests.
Secondly, the circumstances surrounding X’s immunisation. On 8 November 2018, orders were made for X to be immunised. Counsel for the father submitted that the father ascertained that X had been immunised upon inspecting records which had been subpoenaed from the B Hospital. In an attempt to ascertain information about X’s immunisation, his solicitors forwarded an email to the mother’s former solicitors on 23 September 2019 (exhibit F-30) and an email to Victorian Aboriginal Health Service on 8 October 2019 (exhibit F-32). The mother’s evidence was that she did not know about the letter and had not responded. The mother attended the hospital with X in December 2019, and had him immunised, although she omitted to inform the father. Her evidence during cross-examination was that she had thought the parents had previously entered into an immunisation plan and that she was simply seeing that through. There was no explanation given as to why she did not bother, at the very least, to advise the father of the immunisation. Had the father taken X to be immunised, being unaware of his prior immunisation at the B Hospital, the outcome for X could have been extremely adverse. Furthermore, there was discord and disagreement about the second round of immunisations which the father had organised at the local council immunisation centre.
Thirdly, the conflictual circumstances surrounding X attending Dr K, Paediatrician, when the appointment had been made during school time on a week when X was in his mother’s care.
I intend to make an order for the father to have sole parental responsibility for education and health, and otherwise for the parents to have equal shared parental responsibility. The father will be required to notify the mother of decisions he has made pertaining to X’s education and health.
Statutory Pathway
Having determined that it is in the best interests of the child that there be an order for equal shared parental responsibility in matters other than education and health, I shall now address the statutory pathway set out in s.65DAA(1)-(5).
Neither parent initially sought orders that X live equal time with both parents, despite X living in a week about arrangement at the time of the trial. Both the father and the mother sought orders that X live primarily with him/her and spend time with the other parent. The father’s initial proposal was justified on the basis of the risk which the mother’s mental health posed to X’s well-being.
The final proposal of the mother was substantially different from her initial proposal. The mother’s primary position in her final submissions is that the existing week about arrangement should continue. She submitted that the father qualifies for at least equal time and that the burden of the mother’s mental illness and her resultant behaviour, is unlikely to create an ongoing risk. Therefore, the existing shared care should continue.
I do not accept the proposition that the mother’s ongoing mental health does not present an ongoing risk to X and refer to the discussion in these reasons and in particular the evidence of Dr D as to the mother’s significant mental health difficulties.
In the context of the mother’s real attitude towards the father that he is the perpetrator of sexual abuse of X, it is difficult to contemplate how it would be in the child’s best interests for him to continue to live in a week about arrangement.
There was little evidence about whether it would be reasonably practical for X to live equal time with each of his parents, other than he did so between August 2017 and January 2019 and thereafter from 30 May 2019 to date.
A significant practical difficulty is where the mother will reside in the future. Her evidence was that she is currently in transitional housing in Suburb SS. Although she is uncertain as to how long that will continue, she was reasonably confident it may be for the foreseeable future. I accept the mother’s evidence that she has now secured transitional housing and that she is hopeful of remaining in that accommodation for the future. However, unfortunately the mother’s accommodation situation for the past few years has been less than optimal, including times in a refuge and motel accommodation. She has also been reliant on significant assistance from welfare agencies.
X attends W Primary School and as far as I’m able to ascertain it is the father’s intention that he will continue to attend W Primary and S School. There was little evidence about the practicalities of transporting X between the mother’s residence and W Primary, although presumably this had occurred in the past.
The evidence does not lead me to unequivocally find that it is not reasonably practical for X to live equal time with each of his parents, however it is obvious there may well be significant practical difficulties.
For the reasons referred to in these reasons, it is in X’s best interest to live with his father and spend substantial and significant time with his mother.
I intend to make orders as sought by the father, enabling him to provide a copy of these orders and expert evidence in the proceedings, in the event of further notification or allegations against the father or the maternal grandfather. In the context of the mother’s entrenched belief about the father’s sexual abuse of the child, I am of the view that any such documents would be of considerable assistance to any investigation of any subsequent allegations.
I also intend to make orders for a transcript of Dr D’s evidence to be provided to the mother’s treating psychologist and psychiatrist, in the hope that this may well assist her treatment in the future.
In their respective final submissions, both parents sought general orders pertaining to their involvement in the child’s schools, exchange of addresses and mutual non-denigration. I agree such orders are warranted and will make the relevant orders.
I certify that the preceding three-hundred (300) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Williams delivered on 22 December 2020.
Associate:
Date: 22 December 2020
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Natural Justice
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Procedural Fairness
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Remedies
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