Gower and Spalding and Anor

FEDERAL CIRCUIT COURT OF AUSTRALIA

GOWER & SPALDING & ANOR

[2018] FCCA 919

Catchwords:
FAMILY LAW – Parenting – best interests of children – orders made.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65D

Applicant:

MS GOWER

First Respondent:

MS SPALDING

Second Respondent:

MR GOWER

File Number:

PAC 5464 of 2014

Judgment of:

Judge Newbrun

Hearing dates:

9, 10 April 2018

Date of Last Submission:

10 April 2018

Delivered at:

Parramatta

Delivered on:

27 April 2018

REPRESENTATION

Counsel for the Applicant:

Mr Schroder

Solicitors for the Applicant:

Legal Aid NSW Parramatta Family Law

The First Respondent appeared in person

No appearance by the Second Respondent

ORDERS

THAT UNTIL FURTHER ORDER each party, Ms SPALDING, Mr GOWER and Ms GOWER, their servants and/or agents be and are HEREBY restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said child [X] born 2005 from the Commonwealth of Australia;
AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist for the said period, or until the Court orders its removal.
That Ms Gower has sole parental responsibility for the child [X], born 2005.
That [X] live with Ms Gower.
That [X] spend time with Ms Spalding and Mr Spalding by agreement between the parties.

IT IS NOTED that publication of this judgment under the pseudonym Gower & Spalding & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5464 of 2014

MS GOWER

Applicant

And

MS SPALDING

First Respondent

And

MR GOWER

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

These proceedings between Ms Gower (“the Applicant”), Ms Spalding (“the mother”) and Mr Spalding (“the father”) relate to the child [X] born 2005 (“the child”).
The Applicant is a sister of the child. The Applicant was born 1992 and she was born in (country omitted).
The mother was born 1967.
The father was born 1966. The father did not participate in these proceedings.
The family came to Australia in 1996.
Besides the child, there were three other children in this family, being Mr M born 1993, Mr N born 1996, and Ms Z born 1999.
The mother and father have been separated for many years. The father remarried Ms I, who is aged about 50 years (“the stepmother”).
When the family came to Australia in 1996, the Applicant initially lived with her parents, and following their separation, she lived with the mother until she was sixteen years of age. She then went and lived with the father and the stepmother in 2009. By the end of 2009 or early 2010, Mr M, Mr N and Ms Z had joined the Applicant.
In about 2013, the Applicant, Mr M, Mr N and Ms Z moved out together to rent an apartment in (suburb omitted).
On 3 December 2014, this Court made interim parenting Orders, inter alia, that the Applicant collect the child from the mother on 4 December 2014 at her residence at (suburb omitted); that a Recovery Order issue in relation to the child; that the Applicant have sole parental responsibility for the child as well as Ms Z; that the child and Ms Z live with the Applicant; and that the child and Ms Z spend time with the mother and the father by agreement between the parties.
Following the making of the above Recovery Order, the child was placed in the Applicant’s care.
On 10 July 2015, the Court granted leave to proceed in the absence of the father.
On 14 October 2016, the Court directed that the mother should attend the next mention of the proceedings on 16 December 2016, having carefully read and understood (with the assistance of an interpreter) the contents of the Family Report dated 6 October 2016. The Court directed that an (language omitted) interpreter be appointed to assist the mother at Court on 16 December 2016.
On 16 December 2016, the mother attended Court in person.
On 27 July 2017, the case was listed for a final hearing commencing on 9 April 2018 and trial directions were made.

The parties’ proposals

The Applicant’s final proposed parenting Orders are set out in her Amended Initiating Application filed 13 March 2018. Inter alia, the Applicant seeks Orders that she have sole parental responsibility for the child, that the child live with her, and that the child spend time with the mother and father by agreement between the parties.
The mother sought final parenting Orders, inter alia, that she have sole parental responsibility for the child, that the child live with the mother, and that the child spend time with the Applicant for two hours each Saturday.

Material relied upon

The Applicant relied upon her Case Outline prepared by her Counsel, her Amended Initiating Application filed 13 March 2018, and her Affidavit filed on the same date.
The mother relied upon her Affidavit filed 7 January 2016.
The following exhibits were relied upon:
a)Exhibit A: Family Report dated 6 October 2016;
b)Exhibit B: tendered documents from (omitted) Hospital (Sleeve 8).

Evidence

The cross-examination of the mother by Counsel for the Applicant was an effective cross-examination. Inter alia, it demonstrated that the mother was prepared to give inconsistent oral evidence by comparison to the statements she made to the Family Report writer. For example, in the Family Report, paragraph 18, the mother had told the Family Report writer that she believed the child was in danger and that she was being abused by teachers at her school. In cross-examination the mother denied having made such statements to the Family Report writer, yet the mother did not cross examine the Family Report writer in this context.
The mother’s cross-examination of the Applicant was very limited and it was ineffective; the Applicant’s affidavit evidence was not disturbed, and further, her statements to the Family Report writer as set out in the Family Report were not disturbed. Where there is any conflict between the Applicant’s evidence and the mother’s evidence, the Court prefers the evidence of the Applicant unless otherwise stated.
Further, the mother’s cross-examination of the Family Report writer was very limited and it was also ineffective. The evidence of the Family Report writer, as discussed below, was not disturbed, and, subject to one matter discussed below relating to time to be spent by the child with the mother, the Court accepts the evidence of the Family Report writer.
Where there is any conflict between the mother’s evidence and the child’s statements to the Family Report writer, the Court prefers the latter. Further, where there is any conflict between the mother’s evidence and the child Ms Z’s statements to the Family Report writer, the Court prefers the latter.
When the Applicant was sixteen years of age, the mother asked her to leave the family home to begin living with the father. This occurred in the context of rising concern from the mother that the Applicant was spying on her. For the previous twelve months, the mother would say to the Applicant, “you’re spying for your dad aren’t you?” When the Applicant replied, “why would I do something like that?”, the mother would say, “because she [the stepmother] has used black magic on you.”
In 2018, the Applicant, Mr M, Ms Z, and the child moved into a two bedroom rental apartment in (suburb omitted).
The Applicant is currently in her final year of studying a (course omitted) full-time at the University of (omitted).
The Applicant originally commenced these proceedings in circumstances where she was concerned about the child and sister Ms Z continuing to live with the mother. The mother had concerns relating to the child’s schooling, the mother’s mental health, the child’s overall progress, and the involvement of the Department of Family and Community Services (“FACS”).
The Applicant became aware that the child had not been attending school regularly for months, and had missed all of Term 4 in 2014.
In about September 2014, the Applicant spoke to the mother about why the child was not going to school. The mother told the Applicant that she was frightened that the child would be kidnapped from school, that she was worried that a teacher had been sexually harassing the child, and that she was concerned about the outbreak of a world war.
When questioned by the Applicant in relation to the mother’s alleged sexual harassment concerns, the mother stated that a teacher had been touching the child. The Applicant spoke to the school at the time and they said, “we have investigated the matter and the allegation was not substantiated.” The Applicant told the mother the outcome of the investigation, and the mother said, “I don’t believe them, I just know.”
Relating to the Applicant’s concerns about the mother’s mental health, the mother believed that smoke detectors were spying devices. She also believed that there was black magic in the Applicant and each of her siblings. The mother regularly took them overseas to investigate cures for the alleged black magic. As a result of this, the Applicant and her siblings would often be asked to wear talismans.
The mother was admitted to (omitted) Hospital on (omitted) 2011. The mother had been brought to the hospital by refuge workers. A mental health assessment was carried out on the mother. The mother reported, inter alia, being suspicious of the father’s “ex-wife” teaching her children black magic; the existence of verses from the (omitted) written backwards on her daughter’s iPod confirming this black magic; and her belief that the fathers “ex-wife” might show up at her house during the night. The “triage presenting information” stated, inter alia, that certain toothache medication kept in her fridge had been used by her seven-year-old son and that she believed it to be fat from human beings after they had passed away.
In about 2014, the Applicant saw the mother and the child at the (church omitted). The child appeared sad and depressed, she was not smiling and did not appear happy to see the Applicant. The Applicant tried to engage the child in conversation, but the child did not look at or interact with the Applicant.
In 2014, the Applicant received a telephone call from a case worker from FACS. The case worker told the Applicant that she was aware that the mother was not taking the child to school and she needed to find out the reason. The FACS case worker advised the Applicant to get some legal advice from Legal Aid.
On 4 December 2014, the Applicant attended the mother’s premises and knocked on the door, but there was no answer. She tried to look through the windows, but they were covered in newspapers from the inside.
Ultimately the police informed the Applicant that FACS had located the mother and child in Melbourne. The Applicant drove to Melbourne and collected the child on Christmas Eve 2014, and the child has remained in her care since that time.
In January 2015, the Applicant received a letter from FACS advising that they were closing their file in respect of the child.
In about March 2015, the mother came to the child’s school and had the child show her where the child and the Applicant lived. About two weeks later the mother attended the Applicant’s residence and eventually entered the premises, refusing to leave without the child. The mother told the child’s brother, Mr M, that the child should be given to her and then she would leave. The child was scared during this incident. The Applicant and her brother took the mother to the police station. The report was made to the police, who took out an Apprehended Violence Order (“AVO”) on the Applicant and child’s behalf. It was in place for twelve months and dated 21 April 2015.
The child commenced Year 7 at (omitted) High School in January 2018. The child has told the Applicant that she is happy and is enjoying the school. The Applicant receives a Centrelink payment for the child, which helps to cover the household expenses.
The child has progressed well at school in the care of the Applicant.
The child had gained a lot of weight when living with the mother. She is now a healthy weight. This has been achieved through diet and exercise.
The child told the Applicant about an incident when she was living with the mother in (city omitted). The child stated that the mother prepared a tub of water, took her clothes off, and then poured hot water over her. The mother started scrubbing the child very hard and the child had marks all over her body afterwards.
In relation to the mother’s mental health, the Applicant asserted, inter alia, that the mother believed that the father was able to control her and her siblings. The mother also believed that the stepmother was controlling her. Further, in the past, the mother was obsessed with the child. For example, the mother was worried about anyone influencing the child or stealing her, and she would worry about the things said to the child when she was not present. The mother was also obsessed about the food that the child ate; she would sit down and make the child eat large volumes of food.
Previously, the child spent time with the mother on a weekly basis, usually on a weekend for about one hour on each occasion. Mostly, only the Applicant, Mr N, Ms Z, and the child would attend this time. Mostly the Applicant, Mr N, and Ms Z would talk with the mother whilst the child played on the side. During their time together, the Applicant would try and update the mother on what was happening with the child. Inevitably, the conversation with the mother during these visits would return to her concerns about a world war, flood or natural disaster. At the end of this time together, the Applicant would have to say to the child, “go and hug mum goodbye”. If the Applicant didn’t say this to the child, then the neither the child nor the mother would hug or say goodbye to each other.
Since November 2017, the amount of time that the child spent with the mother has reduced to about once per month. This reduction in time occurred because of the intensity of the mother’s behaviour. The mother would often talk about black magic, spies, world wars and other catastrophic events.
The Applicant believes that all time between the child and the mother should be supervised, because the mother does not really interact with the child during this time and will only speak with the Applicant and her siblings, and she discusses inappropriate things about world wars, floods, fires, natural disasters and chaos, which continue to upset the child.
The Applicant was cross-examined by the mother.
It was put to the Applicant that if the mother was “crazy”, then why had she been accepted into English classes and why would she be accommodated by people for one or two years. The Applicant stated that it was what the mother said that made her crazy, not what she did.
It was put to the Applicant that the mother had proof against the father, “it was a harsh treatment, I was in a refuge.” The Applicant responded that the father “was not raising us”.
The Applicant stated that the reason that she had the child was the mother’s behaviour towards the child.
The Applicant was asked by the mother what proof she had. The Applicant replied that her proof was that she had lived with the mother and that “we can’t live with you.” The Applicant stated that her siblings all said the same thing. She stated that the child told her that she did not want to hear those things when she saw the mother, because it made her uncomfortable.
The mother was cross-examined. She gave evidence through an (language omitted) interpreter.
The mother confirmed that she had had read to her (prior to the cross-examination and on the first day of the trial), through an interpreter, the Family Report, the Affidavit of the Applicant affirmed 13 March 2018, and the Orders sought by the Applicant.
The mother confirmed that previously the child and Ms Z were living with her in (city omitted). She confirmed that she had sent the child Ms Z back to Sydney to live with the father, after which she had obtained an AVO against the father from the Dandenong Magistrates Court. In this context, the mother stated that the father used to treat her harshly, “like a slave”, and used to physically hit the mother. The mother stated that the father had hit her in front of the children. It was then put to the mother that the father was the person that she had sent the child Ms Z to from (city omitted), to which the mother replied, “What am I supposed to do? I was concerned he [the father] would take the little one [the child] from me.”
The mother was asked why she had gone to Victoria with the child after this Court had made Orders on 3 December 2014 (inter alia, that the child live with the Applicant). The mother frankly stated that she thought she would not go ahead with the Court Orders, that she would run away with the child, and that they would live together to get away from the Court Orders. The mother agreed that she did not tell the Applicant that she was proposing to go to Melbourne with the child. The mother stated that the child was aware of the Court Orders. However, the mother did not give the child any reason for taking her to Melbourne. She confirmed that she had not apologised later to the child for taking her to Melbourne. The mother conceded that it would have been a very scary experience for the child to be taken to Melbourne and for the police to come and get her (pursuant to the Recovery Order made on 3 December 2014).
The mother confirmed that the Applicant had before the trial tried to give the mother a copy of the Family Report so that she could have it read to her. She agreed that she did not have the Family Report read to her before the first day of the trial. She could give no adequate explanation as to why she did not arrange for an adult to read the Family Report to her.
The mother stated that she was a normal person and did not need to seek a referral to a suitably qualified psychiatrist or registered psychologist, and she would not do so in the future. In this context, she stated that the Family Report writer had assessed her as “crazy” without basis. She stated that there was nothing wrong with herself.
(The court interpolates here that the mother had asserted in her brief affidavit filed 7 January 2016, inter alia, that she had the full capacity to look after the child; she had had problems with the father when they were still married, but after their divorce she was afraid that the father might go to the child’s school and take the child from the mother, and that is when she stopped the child from going to school for some time; she assures the court that she will look after the child to the best she can and “let her back to school as normal”; she is 100% well and normal person and she annexes to her affidavit a report from her GP stating simply, “7 January 2016. This is to certify that by examination on (the mother) mental state, it was found that she is mentally normal and sound.”)
The mother ultimately conceded that the child would have been fearful of being kidnapped by the father, having been told by the mother that she was scared the father would kidnap her from her school. She conceded that the child’s fear arose out of her actions and words, and that it was a terrible thing to have told the child.
The mother conceded that she had told the truth in response to questions asked of her by staff at the (omitted) Hospital (see Exhibit B).
The mother stated that she had told hospital staff at the (omitted) Hospital that the father’s former wife had been teaching her children magic.

The mother stated that she had understood the content of the Family Report after it was read to her by the interpreter (on the first day of the trial).
The mother confirmed her view that the child was lying in statements made to her by the child at the observation session during the Family Report interview (see paragraph 83 of the Family Report). In this context, the mother stated that the father had coached the child to make these statements to her.
The mother confirmed that she knew, since these proceedings were commenced, that her mental health was an issue in the proceedings.

The Family Report

The Family Report was prepared by family consultant, Ms K (“the Family Report writer”). Her Family Report, Exhibit A, is dated 6 October 2016. Interviews with the Applicant, the mother, Ms Z and the child were conducted on 20 September 2016.
The Family Report writer states that the mother and father were born in (country omitted) and met in 1991 in a (location omitted) in (country omitted), after each had fled separately from (country omitted) during the (omitted) War. The mother and father had formally divorced in April 1998.
The Family Report writer states that after the three older children had left her care, the mother moved to (city omitted) to live with the child and Ms Z. In 2010, whilst the mother was still living in (city omitted), the mother made a decision to send Ms Z away to Sydney to live with the father, where she was welcomed. At the time this occurred, this child was aged ten years and enrolled in Year 5 at school. The child remained living in (city omitted) with the mother.
In 2013, the mother moved back to Sydney from (city omitted) to live, accompanied by the child.
The Family Report writer referred to the mother strenuously denying that she had any mental health issues. She noted that the mother presented a medical certificate issued by Dr M dated 7 January 2016, stating, “This is to certify that by examination on [the mother’s] mental state, it was found that she is mentally normal and sound.”
During the interview assessment, the mother told the Family Report writer that she had taken the child to Victoria because she believed the child was in danger and that she was being abused by teachers at the school. She said she needed to keep the child safe, especially from the father and his first wife.
The mother told the Family Report writer that she was seeking sole parental responsibility for the child, and that she wanted the child to live primarily with her and visit her siblings as agreed between the parties.
The Family Report writer identified the issues in dispute as being, inter alia, whether or not the child should remain living with the Applicant, and whether or not, and in what circumstances, the child should spend time with the mother and the father.
The Applicant presented to the Family Report writer as a mature, resourceful, caring, intelligent and articulate young woman.
The Applicant reported to the Family Report writer that she does not have a close relationship with the mother. However, she described the mother as a resourceful person who was excellent with managing money, who had been able to find her way all over the world with low levels of literacy and very little English.
The mother presented to the Family Report writer as a mature, quietly spoken but emotionally intense woman. She identified as a traditional (nationality omitted) and appeared to practice strict adherence to her religious faith and tradition.
The mother was observed to have limited English skills. Her first language is (language omitted) and she communicates with her children in (language omitted) and a sprinkling of English words. (The Court observes that the mother gave her evidence through an (language omitted) interpreter during the trial).
The mother, inter alia, claimed to the Family Report writer that the father continued to exert control over herself and her children, and that it was he who was influencing the Applicant and trying to take the child away from her.
The Family Report writer observed the mother to be singly focused on the child, and that the mother did not refer to the child Ms Z.
The mother told the Family Report writer that the child wanted to live with her.
The mother told the Family Report writer that she had stopped sending the child to school because she was “afraid the father was going to take her away. They would not admit there was something wrong happening at school”. The Family Report writer asked the mother if there was a reason she was afraid the father would take the child away. The mother replied, “he is a violent person. I was never comfortable with him.”
The Family Report writer asked the mother to discuss the circumstances which led to the child Ms Z being sent back to Sydney to live with the father when she lived in (city omitted), and how she had allowed this to happen when she seemed to fear the father and thought he was a violent man. The mother told the Family Report writer that she was worried that the father would convince Ms Z and take the child away from her. Inter alia, she stated that she was scared that Ms Z was helping to plan for the father to take the child away.
The mother was asked by the Family Report writer to discuss what she normally talks about with the child. The mother denied that she would ask the child questions about whether the father was doing bad things to the child or sexually abusing her. Inter alia, the mother told the Family Report writer that the father was telling the child “to say this stuff to try to prove I’m crazy”. The mother stated that the child was saying everything was fine, but the mother did not believe her as the father was putting things in her head. The mother stated that she was 100 percent sure that the Applicant was scared of the father, that the father was behind this case, and she thought that he was using the Applicant.
The child Ms Z was interviewed by the Family Report writer. That child reported, inter alia, that the mother used to say mean things about herself, her sisters and her brother. She stated that the mother would talk about witchcraft and black magic, and believed “we were conspiring with my father to be against her.”
The Family Report writer interviewed the child, then aged eleven years and three months. She presented as a shy, self-conscious and slightly anxious girl, especially around new situations.
Inter alia, the child told the Family Report writer that the mother had stopped sending her to school because she thought the father might come to school and kidnap her.
The child told the Family Report writer that the mother, prior to the child being placed in the primary care of the Applicant, never said anything good about her siblings, the father or the stepmother.
The child stated that when she lived with the mother, if she said to the mother that she didn’t want to eat so much food, the mother would just ignore her and tell her, “I want you to get tall and be big.”
The child stated that she does miss the mother, but that when she lived with the mother she remembered sometimes feeling lonely and bored. The child stated that the mother would always talk negatively about her family and plans to run away. The child recounted that she remembers telling the mother when she was younger that she didn’t have to talk about her family so negatively. The mother then just hit her giving her a slap.
The child stated that the mother would talk about World War III coming soon, and about how the world was in chaos and God was going to come.
The child stated that she now really likes school, she has friends, she is doing well, and she feels comfortable about herself. She stated that if she lives with the mother she might be absent or unable to go to her school, and she was worried about this occurring.
The child stated that if she goes back to see her mother, the mother would ask her uncomfortable questions like, “are they teaching you bad things? what are you eating? Is your father doing bad things to you?”.
The child stated that she misses her mother a bit, but she thinks that seeing the mother one to two hours each week is enough. She thinks that the Applicant needs to come with her, because otherwise the mother will not stop asking her questions and ranting negatively about the father.
The child stated that she can talk to her sisters, including the Applicant, if she is worried or sad.
The child was asked by the Family Report writer whether or not she would be comfortable about participating in an observation with just herself and the mother. The child immediately looked uncomfortable and stressed and stated, “I am not comfortable about being alone with my mother. She will ask me questions.”
In the observation session between the child and the mother, they both appeared uncomfortable and awkward in one another’s company in the play setting. The interpreter confirmed that the mother was questioning the child about what was happening in the father’s house. The child attempted to reassure the mother that she was fine at the house with her sisters and that everything was all right. After the child spoke up, the mother suddenly stood up and came over to address the Family Report writer, saying in an intensely agitated manner and pointing over to the child, “she is lying, she is scared to tell the truth. She is frightened by her father. She doesn’t know what she is saying.”
The Family Report writer asked the mother to resume her conversation with the child but not to discuss the case or ask questions about the father. The mother immediately recommenced a discussion with the child about whether the father was doing bad things to her. After a short time the child became increasingly uncomfortable and distressed, and started to back herself away from the mother. The child gave the signal that she needed to stop.
After the mother left the room, the child was asked to clarify what her mother had been talking to her about. The child reported that the mother was still trying to ask her about what was going on in the father’s house, and whether the father had been doing bad things to her, “you know dirty things.” The Family Report writer asked the child whether or not she meant that the mother was trying to say that the father may have sexually abused her. The child confirmed this was the case, saying:
my mother also thinks that the teachers at school are doing bad things to me, but they are not… None of the things she said are true, when she said I was too scared of my father to say the truth, that is not right. I try to tell her I am fine with my sisters but she just won’t believe me and she won’t stop trying to ask me questions.
The Applicant, the child and Ms Z were observed with the mother. Then the child and Ms Z were observed with the Applicant. The Applicant became fully present and engaged in interacting with her sisters, including the child, once the mother had left the room. All three sisters appeared to have a close, positive and warm rapport. They clearly enjoyed one another’s company. Without the mother present, the child also relaxed and started to smile.
Under the heading “Evaluation”, the Family Report writer stated that it was assessed that the child held her primary attachment to the mother, but this appeared to be an ambivalent attachment which had also suffered a significant rupture after the child was suddenly taken away from the mother.
The Family Report writer stated that the child’s feelings concerning the mother were made more complex as a result of the emotional and psychologically isolating and damaging experience of being subject to many years of feeling marginalised from her peers and bullied at school for being overweight and dressing differently. The mother’s conduct appeared to have contributed to the child’s feelings of loneliness and marginalisation. The mother appeared to have actively attempted to alienate the child from being able to develop a close and trusting relationship with the father or her older siblings through negative denigration.
The Family Report writer stated that the mother appeared to have an unusually obsessive focus on the child and keeping her youngest child safe from all manner of external threats and harm, to the degree that she was prepared to keep the child out of school for six months.
The Family Report writer stated that the mother appeared to hold a genuine belief that the father and his wife were a maleficent force and represented a serious threat to the child and all the children.
The Family Report writer stated that the mother’s conduct and explanation as to why she needed to send the child Ms Z away to the father when she was ten years old did not stand up to external scrutiny and objective reasoning. It was unclear why, if the mother believed that the father was such a violent and frightening man, she would sacrifice her daughter Ms Z. The mother’s self-report of her conduct in respect of Ms Z during this time leaves her capacity for effective parental judgement and protective capacity open to serious question.
The Family Report writer stated that the current evidence of three of the children (the Applicant, Ms Z and the child) is that they have not been ill-treated or abused by the father.
The Family Report writer stated that on the mother’s part, there is a serious level of entrenched and enduring post-separation conflict which characterises her relationship with the children’s father.
The Family Report writer stated that the question as to whether or not the mother was suffering from an underlying undiagnosed mental illness was beyond the brief of the Family Report. The mother might benefit from seeking a referral to a suitably qualified psychiatrist or registered psychologist who might be able to assist her to address some of her unresolved grief and post-separation adjustment issues which to date appeared to be having an adverse impact on her ability to maintain close, trusting and positive relationships with her children.
The Family Report writer stated that if the mother was of sound mind and her conduct during the observation with the child was wilful, it would be all the more concerning. The mother demonstrated during the observation that she had extremely poor emotional regulation. The mother also displayed extremely poor parental reflective functioning and poor attunement and sensitivity to the child. The mother showed that she was unable to stop herself from haranguing the child by enacting her excessive ritual of questioning. Even though she loved the mother, the child was clearly distressed by the mother’s behaviour. The child needed support to be protected from having to endure abusive interaction on a daily basis.
The Family Report writer stated that it was assessed that the mother lacks an adequate level of parental capacity to be considered a suitable adult to provide day-to-day care and supervision to the child (as well as Ms Z).
The Family Report writer stated that it was assessed that the child would be placed in circumstances of seriously unacceptable risk in respect of long term physical and psychological health and well-being if she were to be returned to live with the mother.
The Family Report writer stated that the child reported that she misses the mother, but feels healthier and happier living with the Applicant and Ms Z and spending short periods of time on a weekly basis with the mother, accompanied and supervised by her sisters in a family group.
The Family Report writer stated that the child expressed a clear and unequivocal wish to remain living with the Applicant. Given the child’s age, personal maturity and the particular circumstances of this case, it was assessed that the child’s wish should be respected and given appropriate weight in the Court’s final decision.
The Family Report writer’s final “Recommendation”, based on her Family Report assessment, was that the child should remain living with the Applicant; that the Applicant should continue to exercise sole parental responsibility in relation to the child; and that the child should be permitted to spend time with the mother for short periods of time of one to two hours, on at least a fortnightly basis, on Sundays (or more often) as agreed between the parties, supervised and accompanied by the Applicant. She recommended that the child should not be left unsupervised in the company of the mother until she is at least fifteen years old.
The Family Report writer gave oral evidence.
The Family Report writer stated that the statements made to her by the child Ms Z and the child were, in her view, genuine and accurate accounts of their own experiences. In her view, they had not been coached.
The Family Report writer stated that the child had heard the mother state to the Family Report writer that the child was lying (paragraph 83 of the Family Report). The Family Report writer elaborated on the negative effects on the child of hearing the mother state that she was lying, including the mother’s lack of insight in this context. The Family Report writer confirmed that it did cause her concern that the mother’s cross-examination evidence was that she still believed the child was coached to say these things and was telling lies.
The Family Report writer stated that, in her view, in the future, it was likely that the mother would question the child as to what the mother believed had happened to the child in the past. In this context, the Family Report writer referred to the mother’s questioning of the child after the Family Report writer had warned her not to discuss certain matters with the child.
The Family Report writer stated that if the child, who had spent a significant period of her life living with the mother, were to presently spend time with the mother, she would not be able to be assertive enough to tell the mother she was uncomfortable, if for example, the child was to say something which the mother disagreed with, and the mother told her she was lying; with this child’s tendency to be compliant, the child’s reaction ultimately would be to refuse to see the mother.
The Family Report writer stated that there came a time, when the mother was caring for the child, when the mother’s beliefs and ideas began to overshadow the needs of the child. She stated that she had observed the mother’s particular focus on the child, with the mother seeming to be stuck on thinking of the child as a much younger child that she now is.
The Court accepts the evidence of the Family Report writer, however the Court places no weight on her opinions as to the mother’s possible adverse mental health.
Further, whilst the Court notes the Family Report writer’s evidence that the child should have, at a minimum, contact with the mother at least once every six weeks during the daytime, the Court is of the view, as discussed below, that it will be in the best interests of the child to make a final parenting Order, as sought by the Applicant, that the child spend time with the mother (and the father) by agreement between the parties, the Court being comfortably satisfied on the evidence that the Applicant will continue to promote the child’s positive relationship with the mother and ensure that the child spends regular time with her (currently approximately monthly, and supervised).

Relevant legal principles

Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
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 for the child: section 61DA of the Act.

If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an Order that the child spends substantial and significant time (as defined in section 65 DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such Orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

The Best Interests of the Children

Section 60CC Considerations

Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration

As discussed by the Family Report writer, the child’s primary attachment is to the mother, however this attachment is an ambivalent attachment which has also suffered a significant rupture after the child was suddenly taken away from the mother in December 2014.
The Court refers below, under the need to protect primary consideration, to the significant risk of psychological harm to the child if she was to live with the mother or spend unsupervised time with her.
Should the child spend time with the mother (and the father) by agreement between the parties, again, the Court is comfortably satisfied on the evidence that the Applicant will continue to promote the child’s positive relationship with the mother and ensure that the child spend regular time with her (currently approximately monthly, and supervised). In these circumstances, the Court is satisfied that there is a significant prospect that the child will at least maintain her present relationship with the mother, and subject to the mother, inter alia, ceasing her behaviour in asking the child inappropriate questions regarding the father, and making inappropriate comments to her, (such inappropriate statements of the mother having previously been discussed), there is a significant prospect of the child’s former meaningful relationship with the mother being re-established.

Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

In the view of the Court, there is a need to protect the child from the significant risk of being exposed to abuse (in the form of psychological harm) and neglect if either living with the mother or spending unsupervised time with her. There is an unacceptable risk that the child would be exposed to family violence (the significant risk of the child becoming fearful through psychological harm being perpetrated by the mother against her) in this context.
The child has suffered psychological harm and neglect through the mother’s past unreasonable behaviour towards her. Inter alia, in this context the Court refers to the mother’s past conduct in removing the child from school for six months (by reason of the mother’s unreasonable fear that the child would be kidnapped by the father); the mother’s statements to the child in relation to “black magic” having been practised upon her; the mother taking the child to Victoria despite Court Orders that the child live with the Applicant; the mother’s denigration of the father and other family members to the child; and the mother’s statements to the Family Report writer in the presence of the child that the child was lying, the child being in effect controlled by the father.
Again, the Court accepts the evidence of the Family Report writer (subject to the qualifications previously discussed in this context). The mother continues to maintain a firm belief that the child needs to be protected from the father. This belief is unreasonable and not objectively based. There is a significant risk that the child, if either living with the mother or spending unsupervised time with her, will be exposed again to the mother’s unreasonable attitudes and behaviours, with resultant psychological harm. The mother continues to demonstrate no insight into these past unreasonable attitudes and behaviours.
The Court gives significant weight to this need protect primary consideration.

Section 60CC(3) - Additional Considerations

(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

The Court gives significant weight to the views of the child as expressed to the Family Report writer, including her views as to wishing to remain living with the Applicant and spend daytime time with the mother, supervised by the Applicant. The Court refers to the Family Report writer’s assessment of the child, including her personal maturity and the particular circumstances of the case.

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

The Court refers to its discussion above under the meaningful relationship primary consideration, and its discussion, below, in relation to the child’s meaningful relationship with the Applicant and her other siblings.
The child has a positive relationship with the father.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

The Court refers to the evidence, and its discussion above under the need to protect primary consideration, in relation to the mother’s past unreasonable behaviour in relation to seeking to both live with the child and to spend time with the child. For example, the Court refers to the mother taking the child to Victoria after the Court’s Orders of December 2014.
The Court refers to the evidence, and its discussion above under the need to protect primary consideration, in relation to the nature of the mother’s unreasonable communications with the child.

(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

The mother, it would appear, since the child has been in the Applicant’s primary care, has not been in a financial position to financially support the child.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

The Court refers to its discussion above under the need to protect primary consideration. Inter alia, the child would be placed at significant risk of abuse, neglect or psychological harm if either living with the mother or spending unsupervised time with her.

(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

Not applicable.

(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

The Applicant has such capacities.
The mother does not have the capacity to provide for the child’s emotional and intellectual needs. The Court also refers to the mother’s historical inappropriate overfeeding of the child, leading to weight gain in the child.

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

The Court refers to the assessment of the mother and child by the Family Report writer.

(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right

Not applicable.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

The Applicant has shown appropriate attitudes towards the child, and, as discussed below, has shown intuition and commitment in both seeking interim parenting Orders from the Court in December 2014 and caring for the child thereafter.
The mother has not shown appropriate attitudes towards the child, nor has she demonstrated appropriate behaviour towards the child. In this context, the Court refers to its discussion above under the need to protect primary consideration.

(j) Any family violence involving the child or a member of the child's family

The child has been subjected to abuse, neglect and family violence (the child has become fearful through the actions of the mother) at the instance of the mother. The Court refers to its discussion above under the need to protect primary consideration.

(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter

An AVO was made against the mother for the protection of the child and the Applicant in April 2015. Previously, in the late 1990s, an AVO was made for the protection of the mother against the father.

(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

The Court refers to its discussion above under the need to protect primary consideration. In the view of the Court, the Applicant’s proposed final parenting Orders would be least likely to lead to the institution of further proceedings in relation to the child.

m) Any other fact or circumstance that the Court thinks is relevant

The child enjoys a meaningful relationship with the Applicant and her other siblings. The child has developed very well in the care of the Applicant, and the Applicant has shown significant intuition and commitment towards the child’s welfare by seeking interim parenting Orders from the Court in the latter part of 2014 in relation to the child. The Applicant’s proposed final parenting Order that the child live with her will be in the child’s best interests; as discussed by the Family Report writer, since the child has lived with the Applicant, she has developed a sense of safety and security, and sees the Applicant and her sisters as significant role models and people she trusts in relation to her well-being, who will protect her and provide a place where she will flourish.
The parties agreed to an Order restraining the child from being removed from Australia and a Watch List Order.

Parental responsibility

The child has been primarily cared for by the Applicant since about December 2014. The child has progressed very well in the Applicant’s care in terms of her general happiness, well-being and positive progress at school. There is a lack of trust between the parties, and the Court is not satisfied that they will be able to sufficiently communicate in the future to be able to reach agreement on major decisions affecting the child in a timely fashion. The child is presently spending about one visit each month with the mother during the daytime, supervised by the Applicant and other family members. It will be in the best interests of the child that the Applicant have sole parental responsibility for the child.
By reference to the issues discussed above under the need to protect primary consideration, including the views of the child, also discussed above, it will not be in the best interests of the child to live in an equal time arrangement with the mother or spend substantial and significant time with her.

Summary

Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the child to make Orders in accordance with the final parenting Orders sought by the Applicant as set out in her Amended Initiating Application filed 13 March 2018.

I certify that the preceding one hundred and fifty-seven (157) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 16 April 2018

[2018] FCCA 919

27 April 2018

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Injunction

Jurisdiction

Remedies