Grainger & Grainger
[2015] FamCA 276
•20 April 2015
FAMILY COURT OF AUSTRALIA
| GRAINGER & GRAINGER | [2015] FamCA 276 |
| FAMILY LAW – CHILDREN – Parental Responsibility – Where a complex and lengthy history involving a high conflict separation between the parties – Where inconceivable that the parties could negotiate as required by section 65DAC(3) of the Family Law Act (Cth) in the event that equal shared parental responsibility was ordered – Where Court satisfied parental responsibility must follow the primary residence of the child – Where Court noted any other arrangement would be unworkable and not in the best interests of the child. FAMILY LAW – CHILDREN – With whom a child lives – Where competing proposals – Where mother alleges the father poses an unacceptable risk of harm to the child – Where child displays sexualised behaviours – Where child has experienced great distress at the prospect of spending time with or communicating with the father – Where father alleged the child’s sexualised behaviour pre-dated separation – Where Court satisfied the father was truthful in this regard – Where Court considered whether the father is an unacceptable risk of harm – Where Court unable to exclude the possibility that the child has been abused – Where child has on occasion identified the father in the course of making what might be disclosures of sexual abuse or mentioned his name in the context of sexualised behaviours – Where Court satisfied there is some risk attaching to the father in relation to sexual abuse – Where DoCS has not substantiated any of the notifications of risk – Where Court not persuaded that the father presents an unacceptable risk of sexual harm to the child – Where father alleges such distress is influenced and caused by the mother and maternal grandmother – Where both the Contact Centre and Family Report writer have at times been highly concerned about the child’s level of distress – Where Court noted considerable weight be given to the Family Report writer’s evidence that she was unable to determine whether or not the cause of the distress was sexual abuse or exposure to conflict –Where Court accepted the Family Report writer’s opinion that some of the child’s behaviours are typical of children who are sexually abused but that some of the behaviours overlap with symptoms of other traumatic incidences and are also typical of a child exposed to high conflict – Where Court unable to conclude on the balance of probabilities that the child’s distress and behaviours were the product of having been subject to sexual abuse or exposed to sexual activity or from being exposed to the mother and maternal grandmother – Where child has only ever lived with the mother - Where father has not spent time with the child since April 2014 –Where Court satisfied it is in the best interests of the child that the child should remain living primarily with the mother. FAMILY LAW – CHILDREN – With whom a child spends time – Where Court satisfied that the father is not an unacceptable risk of harm to the child – Where mother alternatively alleges that if the child was to spend time with the father, her parenting capacity would be adversely diminished – Where mother’s highly absorptive personality traits not in dispute and are plainly significant – Where Court satisfied the mother’s belief that the father abused the child is a genuine one but not reasonable – Where Court satisfied that the belief does not so affect the mother’s parenting capacity so as to require no contact orders – Where Court noted the mother likely to oppose the development of any relationship between the father and the child and is likely to attempt to sabotage the development or rehabilitation of such – Where it is unknown how the child will respond to the prospect and reality of spending time with the father – Where Court satisfied it is in the best interests of the child that there be orders that the father spend time with the child – Where Court ordered that the father spend supervised time with the child at a contact centre – Where Court ordered the father have liberty to apply to vary the order after six sessions of supervised time have occurred and a written report being obtained from a psychologist and certificates of completion of parenting courses as ordered. FAMILY LAW – EVIDENCE – Family Report – Where author of the first Family Report and Updated Family Report does presently remain alive – Where previously cross examination by counsel for the father commenced but had not concluded – Where at the time the parties agreed the matter should be adjourned and as such cross-examination by counsel for the father did not proceed further – Where not in contention that there is no prospect of the cross examination ever now resuming – Where question as to what, if any, weight can be given to the evidence insofar as it is not supportive of the father’s case – Where Court noted the fact that it is unfair prejudice which needs to be weighed against the probative value of the evidence – Where Court satisfied the father would suffer unfair prejudice if weight were to be placed on the opinions and recommendations in the Family Report – Where Court satisfied weight to be given in respect of the Family Report writer’s evidence should be limited insofar as it comprises opinions and recommendations adverse to the father’s interests or case but that weight can be given in relation to matters of direct observation. |
| Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAC Evidence Act 1999 (Cth) ss 63, 135, 136, 140 |
| Bayer & Imhoff [2010] FamCA 532 Beckett v State of New South Wales [2014] NSWSC 1600 Harridge & Harridge [2010] FamCA 445 M v M (1988) 166 CLR 69 Mauldera v Orbel (2014) FLC 93-602 N & S & The Separate Representative (1996) FLC 92-655 Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 Ordukaya v Hicks [2000] NSWCA 180 Re Andrew (1996) FLC 92-692 Russell v Close (Unreported, Family Court of Australia, 25 June 1993) Wacando v The Commonwealth (1981) 148 CLR 1 |
| APPLICANT: | Mr Grainger |
| RESPONDENT: | Ms Grainger |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Dooley |
| FILE NUMBER: | LEC | 612 | of | 2010 |
| DATE DELIVERED: | 20 April 2015 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Brisbane and Townsville |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 19 & 20 August 2013, 16, 17, 18, 19 & 20 February 2015; 6 March 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Mason |
| SOLICITORS FOR THE APPLICANT: | David Hunter Solicitors |
| COUNSEL FOR THE RESPONDENT: | Ms Bain (19 & 20 August 2013) Mr Priestly (16, 17, 18, 19 & 20 February 2015; 6 March 2015) |
| SOLICITORS FOR THE RESPONDENT: | Susan Green Legal Practice |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Mr Andrew |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | Dooley Solicitors |
Orders
That all previous parenting Orders be forthwith discharged.
That the mother have sole parental responsibility for the child L Grainger born … 2009 (“the child”) save for any decision to relocate the child to live in a place that makes it significantly more difficult for her to spend time with the father pursuant to this parenting order.
That when the exercise of her sole parental responsibility, as provided for in paragraph 2 hereof, requires the mother to make a decision about “major long-term issues”, as that term is defined in the Family Law Act 1975 (Cth), in relation to the child, save for the exclusion from that definition of decisions about the relocation of the child such that it makes it significantly more difficult for her to spend time with the father, the mother shall:
(a)inform the father in writing of the decision to be made;
(b)invite written input from the father;
(c)take the father’s input into account when making the decision that is to be made; and
(d)inform the father in writing of the decision she makes.
That the child shall live with the mother.
That the child shall spend time with the father as may be agreed in writing between the parties, or directed by the psychologist appointed under order 9 hereof, but failing such agreement or direction, on a supervised basis at the Interrelate Contact Centre at Town H (“the Contact Centre”) for not less than two hours per fortnight (or per week if the Centre can provide such time).
That the parties forthwith do all such things and sign all such documents necessary to enrol with the Contact Centre, to the extent that they have not already done so, and share equally in all of the costs of the supervision of the child’s time with the father conducted at that Centre.
That either or both of the paternal grandparents are at liberty to attend with the father when he spends time with the child.
That the mother is restrained from:
(a)attending at the venue where the child is to spend time with the father, with the maternal grandmother;
(b)prolonging her departure from the venue after delivering the child;
(c)remaining at the venue when the child is spending time there with her father.
That the parties shall engage with a psychologist (“the psychologist”) selected by the Independent Children’s Lawyer to meet with the child one hour prior to and immediately after the first six (or such other number as may be advised by the psychologist) occasions that she spends supervised time with the father at the venue and the Independent Children’s Lawyer shall provide such psychologist with copies of the Family Reports of Ms B (2), Ms M (1), the Report of Dr V and these Reasons for Judgment, but no other documents pertaining to the matter.
That the parties shall instruct the psychologist referred to in paragraph 9 that he/she is not to discuss the child with third parties or to receive information from third parties, other than the manager of the venue.
That the parties shall comply with the psychologist’s reasonable directions including, but not limited to:
(a)the preparation of the child for spending time with the father;
(b)the venue at which the child is made available to spend supervised time with the father (noting that the psychologist may wish to supervise such time themselves);
(c)activities which should be undertaken by the child when spending time with the father.
That either party is at liberty to obtain a written report from the psychologist after no less than six sessions of supervised time have occurred between the father and the child.
That the costs of the psychologist shall be shared equally by the parties.
That the father is at liberty to apply to vary this order as to his time with the child (including any requirements for supervision), after six sessions of supervised time have occurred between the father and the child and he has obtained a written report from the psychologist and Certificates of Completion of the parenting courses referred to in paragraph 19 of these orders.
That the mother shall authorise any school attended by the child to give the father information about the child’s educational and developmental progress and her involvement in school activities and to supply him, at his expense if necessary, with copies of school reports, photographs, certificates and awards obtained by the child.
The mother shall authorise any medical practitioner who treats the child to give the father information about the child’s medical treatment.
That the mother be restrained from:
(a)denigrating or criticising the father to the child or allowing any third party to denigrate or criticise the father within the presence or hearing of the child;
(b)discussing these proceedings with the child;
(c)other than as specifically provided in these orders, taking the child for counselling or psychological intervention or allowing others to do so unless recommended by the child’s school or general medical practitioner and after the mother has consulted with the father pursuant to paragraph 3 of these orders and has provided the father with the name, address and telephone number of the proposes counsellor or mental health professional.
That the father be restrained from:
(a)denigrating or criticising the mother to the child or allowing any third party to denigrate or criticise the mother within the presence or hearing of the child;
(b)discussing these proceedings with the child.
That the mother and father each complete a parenting course such as Triple P or 123 Magic and a Parenting Orders Course.
That the mother and father shall keep the other parent informed at all times of their residential address and mobile telephone contact numbers and shall advise the other parent of any change to any of those details within 48 hours of such change.
The Independent Children’s Lawyer shall:
(a)notify the parties of his selection of a psychologist pursuant to order 9 of these orders; and
(b)be discharged on 20 April 2016, or such other date as may be ordered.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Grainger & Grainger has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE & TOWNSVILLE |
FILE NUMBER: LEC612/2010
| Mr Grainger |
Applicant
And
| Ms Grainger |
Respondent
REASONS FOR JUDGMENT
INDEX
INTRODUCTION 4
THE ORDERS SOUGHT BY THE PARTIES 4
THE COURSE OF THE TRIAL 5
THE ISSUES 6
BACKGROUND FACTS 7
The father 7
The mother 7
The maternal grandmother 8
The relationship 8
Post-separation events 9
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime 12
The standard of satisfaction required 13
The notion of unacceptable risk 15
“No contact” orders 17
WHAT USE CAN BE MADE OF MS B’S FAMILY REPORTS
The problem 18
Relevant statutory provisions and principles 19
Evaluation 19
WHAT IS THE CAUSE OF THE CHILD’S BEHAVIOURS AND DISTRESS
The parties’ contentions 20
The behaviours, distress and associated events 20
Contact Centre events and the like 43
Ms M’s opinion 50
Can a cause be otherwise determined?
Role of the Court 51
The Mother’s argument
Overview 51
Child’s sexualised behaviour 52
Child has only ever identified father as perpetrator 52
Child’s distress around seeing father 52
Child’s lack of distress when away from father 53
Father’s sexual behaviour 53
Father’s personality factors 54
The Father’s argument
Overview 54
Mother’s personality factors 54
Mother’s own history of sexual assault 55
Mother’s enmeshed relationship with maternal grandmother 55
Child’s sexualised behaviour predates separation 56
Child’s statements commence at time of great anxiety 57
Too coincidental that statements commence at
time regular overnight time starts 58
Mother and grandmother motivated to sabotage relationship 58
Mother and grandmother spoke negatively of father 61
In any event, abuser not necessarily father 61
Child’s disclosures and behaviours are therefore explicable 62
Evaluation 62
IS THE FATHER AN UNACCEPTABLE RISK OF SEXUAL HARM?
Overview 64
Is there a risk at all? 64
What is the magnitude of the risk? 64
What harm might ensue if the risk eventuated? 65
Probability of harm if risk eventuates? 65
Evaluation 65
THE RUSSELL & CLOSE ARGUMENT
Overview 65
Is the Mother’s belief reasonable? 66
Is the Mother’s belief genuine? 66
Does the belief reduce her parenting capacity? 67
Evaluation 67
WHAT RISKS DO THE MOTHER’S ORDER POSE?
Overview 67
Nature of risk 67
Magnitude of risk 68
Harm if risk eventuates 68
Probability of harm if risk eventuates 68
Evaluation 68
LIKELY EFFECT ON CHILD OF CHANGE IN PRIMARY CARE 69
SECTION 60CC CONSIDERATIONS 70
PARENTAL RESPONSIBILITY 73
WITH WHOM SHOULD THE CHILD LIVE? 74
TIME WITH THE FATHER AND COMMUNICATION 76
OTHER ORDERS 79
CONCLUSION 80
INTRODUCTION
Village X is an alternative lifestyle community in Northern New South Wales. In addition to over a hundred individually titled lots, it has hundreds of hectares of common and conservation areas. Many residents grew their own food. There is a community centre, where people can socialise over coffee, and noticeboards to allow communication. Many of the dwellings are solar powered.
At the time of her birth, the parents of the child the subject of these proceedings, L (born in 2009 and therefore presently five years of age) (“the child”) lived in a house on two acres at Village X. In addition to her parents Mr Grainger (“the father”) and Ms Grainger (“the mother”) the child’s maternal grandmother, Ms S (“the maternal grandmother”) also lived there in a nearby home.
One might then have predicted that the child would enjoy an idyllic childhood, but sadly the five years of her life to date have been anything but. She has regularly demonstrated extreme distress and some self-harming conduct. She has also often exhibited a range of sexualised behaviours. The mother says they are all the product of the father’s sexual abuse of the child; the father says they are caused by the mother and maternal grandmother alienating the child from him. However although a part of the inquiry which this litigation causes the court to embark upon is to try to identify the cause of the child’s behaviours, primarily the role of the court is to determine the regime of orders which stand the greatest chance of ensuring that her life going forward is the best possible one, at least insofar as orders can achieve it.
THE ORDERS SOUGHT BY THE PARTIES
As finally articulated, the orders which the father seeks are, in broad terms, that the child should forthwith go into his sole care, and he should have sole parental responsibility for her. Then, after a relatively short lapse of time, the child would commence spending supervised time with the mother at a Contact Centre for something in the order of 15 alternate Saturdays and thereafter spend unsupervised time with her for three weekends in each school term, together with one half of school holidays. There would also be an opportunity for the mother and child to communicate, initially by post only, but from the commencement of unsupervised time, by email, Skype or telephone. In broad terms, he justified those orders on the basis that if the child were to remain living with her mother and maternal grandmother, in all probability she will not ever have a relationship with him.
On the other hand, the mother sought orders that the child live exclusively with her, and spend no time nor communicate with the father. She also sought an order for sole parental responsibility. She justified these orders primarily on the basis that the father presents an unacceptable risk of sexual harm to the child. In the alternative, there was a relatively faint attempt to also justify them on the basis of the mother’s conviction that the father presents an unacceptable risk of harm to the child. It was said that, were the child to spend time with the father, the mother’s own parenting capacity would be so adversely diminished as to justify the child never seeing or speaking with any of the paternal family again.
In the event that I was not persuaded of either of those matters, the mother proposed alternative orders. They were that she have sole parental responsibility for the child who would live with her. She then proposed six months of psychological counselling for the child, at the conclusion of which, providing that there was a “favourable report” the father would spend two hours for 12 alternate Saturdays with the child at a Contact Centre, thereafter progressing to two hours each alternate Saturday, with that time to be supervised by the paternal grandparents at the H Botanic Gardens. In the event that the “favourable report” does not occur, or the psychologist recommends that time be suspended, then she proposed that a further six months of counselling ensue, with “a final report” to be provided to the parties. If that report does not recommend time being recommenced between the child and the father, then it would not thereafter occur unless and until the child requested it. Those alternate orders would however permit the father to send the child mail, cards and gifts.
The Independent Children's Lawyer sought a regime of orders markedly different to that proposed by either party. He sought that the mother have sole parental responsibility for the child, save for any decision to relocate to an area that might make it more difficult for the child to spend time with father. He also proposed that although the child would live with the mother, she should immediately commence spending supervised time with the father, of at least two hours per fortnight, at the H Contact Centre. One or both of the paternal grandparents would be at liberty to attend the Contact Centre and also spend time with the child on those occasions. Further the Independent Children's Lawyer sought an order that the child meet with a psychologist selected by him one hour immediately prior to and after the first six such visits. Finally, the Independent Children’s Lawyer’s orders gave the father liberty to apply to vary that supervised time after those six sessions, once he has obtained a written report from the psychologist (and some certificates of completion of parenting courses). The Independent Children's Lawyer also proposed a regime of restraints on the mother and orders requiring each party to undertake parenting courses. He also proposed that he would be discharged after he had selected the psychologist for the child as outlined above.
THE COURSE OF THE TRIAL
It will be appreciated that the divergence of the parties’ positions as expressed in the orders that they seek, underscores the complexity of the issues which the litigation gives rise to. Those issues became apparent at an early stage when the trial first commenced before me on 19 August 2013. On that occasion, the then Family Report writer, Ms B, commenced to give her evidence. During the course of that evidence, she identified that the child needed psychological assessment to determine the likely cause for her then concerning behaviours. In the light of that evidence, when the matter resumed before me the following day, all parties agreed that the trial should be adjourned, with the mother being given leave to relocate to Town H with the child, who would thereafter continue to spend supervised time with the father at the H Contact Centre.
It was then thought that the costs of the psychological assessment would be met by Legal Aid, however apparently that funding was not able to be procured. Unfortunately during the adjournment, Ms B became permanently indisposed and hence her cross-examination unable to conclude. Moreover, the events which had occurred during the course of the adjournment necessarily required further assessment, and accordingly a second Family Report writer, Ms M, a psychologist, was retained to provide an updated Family Report. In the course of that report she attempted to address the cause of the child’s behaviour and distress. Regrettably however, she was not able to reach any such opinion within the confines of her limited amount of time with, and exposure to, the family members. The most she could say was that some of the child’s behaviours are typical of children who have been sexually abused, however they are also typical of children exposed to high conflict. The trial then resumed before me with submissions concluding on 6 March 2015.
Finally I should explain that although the proceedings before me encompassed both children’s and property matters, during the course of the hearing the property matters settled in principle, in that it was agreed that the primary residence parent of the child should receive 70 per cent of the net pool of assets of the parties. Given that agreement, strictly speaking the property orders are not by consent because the parties were not agreed as to who should be the primary residence parent. However the parties were agreed that the property proceedings would, in that sense, be determined by the outcome of the children’s proceedings.
THE ISSUES
With the assistance of the parties, I identify that the issues in this case that are likely to substantially determine the outcome are as follows:
(a)What is the cause of the child’s relevant utterances, distress and behaviours;
(b)Is the father an unacceptable risk of sexual harm to the child;
(c)Does the mother genuinely believe the father is a risk of harm such as to impair her parenting capacity if there is contact;
(d)What risks to the child do the mother’s primary orders pose, and particularly, what would be the impact of the loss of her relationship with her father and paternal family;
(e)What is the likely effect on the child if she were to move from the mother’s care to the father’s care.
After a review of relevant background facts, I will consider those issues in advance of a traverse of the s 60CC considerations, before ultimately considering the combined impact of all of those matters in determining where the best interest of this child lie.
BACKGROUND FACTS
The father
The father was born in Victoria in 1971 and is therefore presently 43 years of age. He grew up in what has been described by him as “a conservative family”. He was an only child. He completed schooling to year twelve. He moved out of home at 17 years of age and got “into a lifestyle of sex, drugs and rock and roll.”
Thereafter he had a range of employment until leaving Victoria when aged 28, to live in Darwin where he stayed for three years. It appears as though he purchased property at Village X in 2003 and moved to live there. At about that time, his parents retired to Northern New South Wales. The father took up some form of employment in communications, and he was in that employment and living at Village X when he met the mother in 2005. He was then aged 34.
The mother
The mother was born in the United Kingdom in 1984, and is therefore presently 31 years of age. Her parents separated when she was 12 years old, but apparently remained good friends, even to the extent that the combined family still went on outings together. After her parents’ separation, initially the mother remained living with her father, although unusually her mother split her time between her new partner and the maternal grandfather’s household. Ultimately the mother and maternal grandmother moved to a different area where they lived until the mother was in her late teens. It appears as though the maternal grandfather also moved there and lived nearby.
The mother was sexually assaulted by another student from her high school when she was 14 years old. She apparently also had some issues with bullying at school, and in consequence for a time she was home-schooled. After leaving school at 16 years of age she studied alternative medical therapies. At some stage in her late teens she was sexually assaulted whilst on a date. At the conclusion of her studies she spent two years travelling internationally. Initially she then moved back to the United Kingdom, but ultimately moved to Australia in 2005, where she met the father at Village X and shortly afterwards commenced a relationship with him. She was then aged 21.
The maternal grandmother
On any view, the maternal grandmother is an important figure in this litigation. As at January 2015, she was 55 years of age. She was born in the United Kingdom. She is a qualified allied health professional. I have to an extent traversed some aspects of her life in discussing the mother’s background. However after separating from the maternal grandfather, the maternal grandmother stabbed a man with a chisel. The circumstances behind it are complex, but apparently the maternal grandmother’s then partner intervened in a stranger’s domestic violence incident and later the maternal grandfather became involved as well. The maternal grandmother believed that the maternal grandfather was going to be killed, so she stabbed the victim. She was charged with attempted murder, but ultimately pleaded guilty to unlawful wounding. She was not jailed.
The maternal grandmother permanently moved to Australia in June 2004, and purchased land at Village X in 2005. Shortly after she moved there she met the father and they became friends. According to the maternal grandmother, at about that time she also met the paternal grandmother and got on well with her.
The relationship
After her initial experience of Village X in 2005, the mother determined to permanently move to Australia and hence returned to the UK to pack up her belongings. She came back to Australia in early 2006. She shortly thereafter moved in to live with the father and the parties married later in 2006. Although the father and mother describe themselves as “persons who would not normally marry” at the time the mother was only on some species of bridging visa, and the fact of the marriage enabled her able to stay in Australia permanently.
At about this time the maternal grandmother left Village X, but remained the owner of two properties there. She returned to visit the mother and father at Village X on occasion. Otherwise the lives of the parties appear to have been unremarkable, with the next major event being when the mother became pregnant in 2008 with the child.
That is not to say that the parties’ lives were conventional. It appears as though both were heavy users of marijuana. The father was a fairly heavy drinker as well. He also extensively and regularly accessed pornographic material. The mother would apparently engage in public nudity within the Village X community.
Also it appears as though money was tight, and that led the mother to undertake some nude photography and videography, which was posted on the internet and available for viewing by members of the public for a fee. The father was agreeable to this. During that time the father sought appointment as a public official.
The labour which led to the birth of the child was long and painful. During the course of the labour, the father went out and had a haircut. This was a topic of some questioning in cross-examination and was said to display a lack of support of the mother by the father. The father explained it on the basis that a friend had offered to cut his hair – which apparently needed to be cut – and he accepted. The maternal grandmother stayed with the parties from about a week prior to the birth. She then continued to stay after the birth for some period of time. The paternal grandparents also attended at the parties’ home to assist in early stages of the parents dealing with the newborn child.
In about March 2010 the maternal grandmother returned to live at Village X. Then in June 2010 she, the mother, father and the child, all left to travel to Europe. The plan was that the mother, child and maternal grandmother would stay in the United Kingdom, whereas the father would spend some time there, but spend three weeks in mainland Europe.
The maternal grandmother recalls that the father was hostile towards her during their flight to the UK. Particularly he refused to assist her during some anxiety and then “threw quite a tantrum” when they landed in the UK. Things did not thereafter improve, however the next day the father travelled to Europe for three weeks. Upon his return the maternal grandmother recalls him as being “rude and grumpy” most of the time. It culminated in an argument between the maternal grandmother and father (albeit apparently also involving the mother) at the conclusion of which the father “stormed out” and thereafter did not travel on with the mother and maternal grandmother. Shortly after he announced his intention to return to Australia, and did so, with the mother and maternal grandmother and the child all remaining in the UK.
The parties have not cohabited since. Both appear to accept that when the father returned to Australia from the UK, the parties had by then separated, and it proved to be permanent.
Post-separation events
The child celebrated her first birthday in the UK, whilst the father was in Australia. The father began to be concerned that the mother would not return. Communication between them at the time was poor. The father consulted solicitors. They corresponded with the mother. Ultimately the mother, child and maternal grandmother returned to Australia in October 2010, at which time the mother told the father that the marriage was over. Communication between the parties did not improve. Worse, the father had been sharing his concerns about the mother and maternal grandmother to other Village X residents. Some had harsh words to say to the mother, even when she was in the UK. Once such person, Ms K, was a witness in this proceeding and her email exchanges with the mother were in evidence. Then the mother and maternal grandmother travelled with the child to Sydney without the father’s agreement. He began to be concerned that they would take the child out of the country. On 14 December 2010 he commenced these proceedings. In them he sought interim orders for “joint custody of the child” and an order restraining the child from leaving Australia without his consent first obtained.
At around that time, the maternal grandfather also travelled to Australia. Together with the mother and maternal grandmother, on 29 December 2010, he accessed the father’s home and removed all of the mother’s, and most of the child’s, belongings. They also took some items which the father asserted were his. The father was absent at the time. The maternal grandfather left two letters addressed to the father on the kitchen table. One of them expressed concern that the father’s “washing dirty linen in public was very damaging” and said “we are at a difficult position now and at the moment I can see no way out” and that “we are now unfortunately in the hands of solicitors.”
Further unpleasantness ensued when the maternal grandmother demanded that the father give up the mattress he was sleeping on. The father refused, but the mother, maternal grandmother and maternal grandfather (together with the child) then again attended his house and sought to obtain entry. However since 29 December, the father had changed the locks, and they could not get in. In the course of their visit, the maternal grandmother called out to the father that “I think we need to talk about this before it goes too far.”
It is unnecessary to traverse the subsequent history of this litigation. However it will be important to carefully recite and consider the various behaviours and alleged disclosures of the child thereafter, and particularly her very worrying behaviour when faced with the prospect of, from time to time, spending time with the father.
Between the return of the mother and child to Australia in October 2010 until July 2011, there was a degree of co-operative parenting of the child. However the mother began to become concerned with the quality of care which the father afforded the child when she spent time with him, and was particularly concerned in relation to nappy rash and red genitalia which she observed the child to have when she came home from spending time with the father. From about July 2011 she also began to become concerned about the child engaging in “humping” behaviour with her stuffed toys. Then in January 2012, the mother sought medical assistance about the child, and the doctor she then consulted, made a notification to the Department of Family and Community Services (“DoCS”). She did that because she believed that the child had made disclosures that she was being sexually abused by the father. I will discuss the detail of that in due course, however it is pertinent to note that ultimately all notifications to the DoCS or New South Wales Police, no matter by whom they have been made, have been found to be unsubstantiated.
At about the same time, and perhaps not unrelated to the mother’s allegations, the father made some public comments, both on a community notice board at Village X and on the internet, which the mother and maternal grandmother found offensive and confronting. There were also one or more occasions when the mother and maternal grandmother thought that the father, when he was driving by or stopped outside of the home, was stalking them. That led the mother and maternal grandmother to seek assistance and they left Village X and were placed at a women’s refuge in Town E, and later in Town Y. They obtained domestic violence orders against the father, albeit they were ultimately overturned on appeal. Shortly after arriving in Town Y the mother moved into self-contained accommodation, but the maternal grandmother moved to Town H.
Orders were made on 24 April 2012 that the father commence spending supervised time with the child at the E Contact Centre. I will detail that history of that contact later.
Ultimately the father consented, during the first stage of the trial before me, for the mother to relocate to Town H as well, with contact to thereafter move to the H Contact Centre.
For reasons which I will later explore, the child began to display increasing stress at the prospect of spending supervised time with her father, or even communicating with him by telephone. As I shall soon detail, although some Contact Centre visits commenced with the child distressed, but proceeded eventually after she calmed down, some had to be wholly abandoned. The most recent attempt at the father spending any time with the child – in the course of the preparation of Ms M’s Family Report – had to be abandoned owning to the level of distress and concerning behaviours of the child. The father has now not successfully spent time with the child since April 2014. Attempts at telephone communication ceased in September 2014. It appears as though the child has had nothing to do with her paternal grandparents for a much longer period.
As at the date of the trial before me in 2015, the mother, maternal grandmother and child lived in Town H, and the father lived in accommodation in Town E itself. Neither party are in employment, nor are either party presently in a relationship. The father is not paying any child support in respect of the child, and has not done so for some years.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA(1) of the Family Law Act provides that 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. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to section 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However, s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
The standard of satisfaction required
Section 140 of the Evidence Act 1999 (Cth) provides as follows:
140(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;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.
In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
Plainly child sexual assault is a grave crime. On the other hand conduct intended to, or with a risk of, either emotionally or psychologically harming a child, or destroying or impairing a relationship between a child and a parent, is not, of itself and without more, necessarily criminal. Nonetheless an allegation of that kind is also potentially a grave one, although whether it is so or not will depend upon the facts of individual cases. It is probably idle to seek to arrange conduct in some hierarchy of gravity; rather what s 140(2)(c) requires is that appropriate consideration is given to the gravity of the matter in question in determining whether or not the Court is satisfied of its existence on the balance of probabilities. In my view, the allegations made by the father that the mother presents a risk of emotional harm to the child are of real gravity.
Further, the consequences attaching to a finding of the kind sought by the father could potentially be grave. As is demonstrated by this case itself, based upon such a fact being established, a parent could seek to use it to found an argument that the other parent’s time with the child should either be supervised for some period of time, or even permanently. Whilst on one view such a consequence may not be as grave as the consequences that flow from the proof of, for instance, sexual abuse, it is nonetheless clear that the consequence of a finding that the mother presents as an unacceptable risk could be significant and have a grave aspect to it.
Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[1]
[1] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].
The notion of unacceptable risk
It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings where there are allegations of sexual abuse of a child. At [20]-[25] the Court said as follows:
20. But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter parties in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee (1951) AC 352, at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v Lieschke [1987] HCA 4; (1987) 162 CLR 447, at pp 450, 458, 462, 463-464.
21. Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
22. In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at p 362. There Dixon J. said:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony,
or indirect inferences."His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
23. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
24. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[2]
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
[2] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.
“No contact” orders
Plainly it is a serious matter to order that a child neither spend time with nor communicate with a parent. Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable. Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child. The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.
Re Andrew also discussed a further line of authorities, which upheld “no contact” orders being grounded, not upon a proved unacceptable risk of harm posed to the child by the parent, but rather where the other parent entertained a genuine, but not necessarily reasonable, belief that such a risk of harm existed. The basis for such orders was not to protect the parent from the consequences of their belief, but rather to protect the child from those consequences, where doing so was in the child’s bests interests. Thus in Russell v Close (Unreported, Family Court of Australia, 25 June 1993) the Full Court held that where such parental anxiety was likely to impact adversely on that parent’s care-giving ability, the Court needed to take that into account. A re-statement of that principle is in Bayer & Imhoff [2010] FamCA 532 at [177].
WHAT USE CAN BE MADE OF MS B’S FAMILY REPORTS
The problem
Ms B was the author of the first Family Report of 29 October 2012 and an updated Family Report of 1 July 2013. For reasons explained in the most recent of those two reports, she recommended that the child live with her mother and spend supervised time with the father at the H Contact Centre once a fortnight for a period of two hours, as well as supervised time between the child and the paternal grandparents once a month at that Contact Centre. She also recommended that the mother undertake psychological counselling to try and help her develop more independence and to develop better communication strategies with the father. She made those recommendations because “it is more likely than not that [the child] has been sexually abused” and because the child was not “psychologically ready to spend unsupervised time with her father.” Although Ms B did not appear to specifically identify the father as likely having been the abuser, she did at paragraph 102 of the Family Report filed 1 July 2013 specifically say “it cannot be conclusively ruled out that [the child] may have been a victim of sexual abuse by [the father].”
The report was not supportive of the father’s position either as then articulated or as ultimately formulated before me.
On 19 August 2013 Ms B gave some short evidence-in-chief led by Mr Andrew, counsel for the Independent Children's Lawyer, and was then cross-examination by Ms Bain, who at that point appeared as counsel for the mother. That cross-examination concluded and at 3:11pm Mr Mason, counsel for the father, commenced his cross-examination but had not concluded when the court adjourned. It was then intended that he would resume that cross-examination the following day. However at the commencement of the hearing on the following day all parties agreed that the matter should be adjourned and hence Ms B’s cross-examination did not proceed further.
It is not in contention that there is no prospect of the cross-examination of Ms B ever now resuming, much less concluding; Ms B does however presently remain alive.
The question is in these circumstances what, if any, weight I can give to the evidence of Ms B, particularly insofar as it is not supportive of the father’s case.
Relevant statutory provisions and principles
The issue is not about the admissibility of Ms B’s two Family Reports: they have already been admitted. Moreover neither the Independent Children's Lawyer nor the mother could be heard to complain that they have not had an opportunity to test the opinions contained therein, as both have completed their questioning of her, save that the Independent Children's Lawyer may have had some re-examination. Really the question is confined to what, if any, use can be made of the documents insofar as they are adverse to the father. Hence neither s 63 nor s 135 of the Commonwealth Evidence Act are engaged. However s 136 of that Act provides:
The Court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:
(a)be unfairly prejudicial to a party; or
(b)be misleading or confusing.
The situation here is somewhat analogous to that which confronted Harrison J in Beckett v State of New South Wales [2014] NSWSC 1600. That involved a case of malicious prosecution. The deceased proposed witness was one of the prosecutors (albeit that the defendant was the State of New South Wales). The deceased prosecutor died during the course of the hearing of the malicious prosecution trial. Notwithstanding that, the State gave notice that it intended to adduce hearsay evidence of the deceased prosecutor. In the course of considering whether or not to admit that evidence under one of the exceptions to the hearsay rule contained in the New South Wales Evidence Act, his Honour had regard to the earlier New South Wales Court of Appeal decision of Ordukaya v Hicks [2000] NSWCA 180, which dealt with s 135(a) of the New South Wales Evidence Act. That case dealt with the notion of “unfair prejudice” which is, of course, the same term as used in s 136. Both decisions focussed upon the fact that it is unfair prejudice which needs to be weighed against the probative value of the evidence. I accept that the statements of principle in those cases logically apply to s 136 of the Commonwealth Evidence Act, and respectfully adopt them.
Evaluation
The unfair prejudice which the father would suffer if I were to place weight upon the opinions and recommendations of Ms B is in two respects. The first is that he would not have had the opportunity to cross-examine her by reference to either the validity of the process by which she arrived at those opinions and recommendations, or indeed challenge her by reference to facts, evidence or issues which may have arisen during the course of the trial. The second is that the recommendations of Ms M are far more favourable to the father, as are indeed the opinions upon which her recommendations are based. The father necessarily does not have the opportunity to challenge Ms B using those opinions as the basis for cross-examination, although they form part of the material before me. Therefore in a sense I am left with the difficulty of trying to resolve two sets of opinions and recommendations of the two Family Report writers, without the opportunity for one of those Report writers to be challenged by reference to the other’s Report.
On the other hand I cannot identify any unfair prejudice which the father suffers if the primary factual material recited in Ms B’s Reports – derived from her interviews with the father and others and her observations of interactions between the child and others – are given weight.
I am satisfied that pursuant to s 136(a) I should limit the use which is made to Ms B’s evidence by not giving it any weight insofar as it comprises opinions and recommendations adverse to the father’s interests or case, but to give ordinary weight in relation to matters of direct observation, for instance, matters reported to her during her interviews with the parties.
WHAT IS THE CAUSE OF THE CHILD’S BEHAVIOURS AND DISTRESS
The parties’ contentions
As I shall shortly explain in greater detail, the mother and maternal grandmother have a deep conviction that the father has sexually assaulted the child. For his part, the father believes that the mother and maternal grandmother are determined to alienate the child from him. Somewhat begrudgingly, through his counsel he appeared to concede that this was not an advertent strategy on the part of the mother and maternal grandmother, but it was nonetheless begrudging.
Each party says that the child’s distress, behaviours and alleged disclosures are caused by the other. I have already observed that the second Family Report writer was unable to determine, as between sexual abuse and exposure to conflict, what was the cause of the child’s behaviours. Nonetheless each party pressed their respective case, and hence contended cause. Vast swathes of evidence were devoted to this issue. It is necessary to consider the full background of how this situation developed.
The behaviours, distress and associated events
These proceedings commenced on 14 December 2010. Initially the father was primarily concerned to restrain the mother from leaving Australia with the child. However from the outset, the mother’s material was replete with allegations which, in substance, asserted that the father could not properly care for the child, and had never really been interested in her.
On 11 April 2011 consent orders were made by then Federal Magistrate Demack under which the parties had equal shared parental responsibility for the child. Those orders also provided that the child would live with the mother, but spend time with the father during the day on Mondays, Thursdays and Saturdays.
The first mention in court documents of sexualised behaviour by the child was made in the mother’s affidavit of 16 April 2012, albeit relating back to July 2011. At paragraphs 10 and 11 of that affidavit the mother said as follows:
10. In or about July 2011 I first noticed the child exhibiting sexualised behaviour. She came over to me when I was sitting down and started grinding herself on my leg. She was rubbing her vaginal areas on my leg. I said to her, “…, what are you doing?” and she replied, “Humping you.” Humping is not a word I use nor have I introduced this word to [the father]. I explained to her that little people like her did not do that sort of thing to other people. She left me and straight away went over to my mother and started to try and do the same thing to her. My mother repeated similarly that this was not something little people did. [The child] then got a teddy bear and placed it between her legs, holding her hands underneath it and rocking backwards and forwards whilst pushing the teddy bear into her groin area.
11. The next occasion I was collecting [the child] from [the father’s] place, [the child] started doing this whilst I was there to a soft toy at [the father’s] house. I said to [the father], “I am really worried about that behaviour. Do you have any idea where had come from? Is she doing this to adults too?” [The father] said ‘No”. At this point [the child] came out and was playing around us and started grinding herself on his leg. I waited for him to tell her not to do this. He did not. I started then to explain to her, “Big people and little people don’t do that together”. [The child] hopped off [the father]. I then said to him we would need to discourage her from doing this and [the father] agreed he would do likewise.
Seemingly in response to this aspect of the mother’s affidavit, in the father’s affidavit filed 26 April 2013 at paragraphs 73 to 75 he said as follows:
73. I have been aware of the ‘humping’ behaviour for some time and have discussed it openly with the mother, in fact she first raised it with me, and it was she who named it ‘humping’. I cannot recall or put a date on when this behaviour began.
74. [The mother] has told me she also does it to people, but I have only observed her doing it with the larger stuffed toys while at my house.
75. I have discussed it with my counsellor and he suggested to ignore it, and to distract her into doing something else, rather than to tell her it is naughty or to try and take the stuffed toy away, as this may trigger a neurosis. From some basic research on the internet, it appears that this type of behaviour in young girls is not unusual, and is not an indicator of abuse.
Although not raised in any affidavit material filed by the mother before April 2012, in fact on 20 August 2011, after the child had returned to the mother’s care from spending time with the father, the mother telephoned the father. In his affidavit filed 26 April 2013 the father records his recollection of the conversation as follows:
76. On Saturday 20 August 2011, [the mother] phoned me shortly after collecting [the child] and was very agitated. The battery on my mobile phone quickly died and I called her back immediately using Skype on my laptop. My parents had spent the day with [the child] and I and were still at my house. I asked my mother to listen in on the call. I asked [the mother] to repeat what she had said, and she said “What are you doing to her up there? Why has she come home with a red raw foofie ([the mother’s] word for vagina)? This has happened way too many times” or words to that effect, in an angry and accusatory tone. I said “I don’t know what you are talking about... We changed her nappy about an hour before you picked her up and didn’t notice anything.” My mother then said, “What do you mean by ‘it’s happened way too many times’... If this has happened before, why haven’t you said something to [the father] before now?”
77. [The mother] was not happy with my mother interrupting and said “[paternal grandmother] please put [the father] back on, this is between me and him,” or words to that effect, to which [the father] replied “We are on Skype, we can both hear and speak to you, and if I have to deal with your mother all the time then you can bloody well deal with mine,” or words to that effect.
78. My mother then explained to [the mother] that she and my father had been with [the child] and I all day and had not noticed anything, and that [the child] had not complained about having a sore vagina. My mother was very upset at [the mother’s] allegations that we were “doing something” to her.
79. Following the phone call my parents and I were baffled as to how [the child’s] genitals could have become ‘red raw’ between the time we changed her nappy and [the child] returning to [the mother’s] residence.
80. We did consider that it could possibly have been an attempt to establish an allegation of abuse against me.
From at least July 2011 the mother had been in the habit of writing down matters which she thought relevant to the litigation between the parties. Her evidence was that she would write things down on scraps of paper and sometime later enter them into her computer.
Her entry for Saturday 20 August 2011 is as follows:
I pick up [the child] at 5:30pm. She went to sleep at 5:10pm. I get home and give her a bath, finding 5 ticks on her. She also had really sore red-raw genitalia. I phone [the father] to talk to him about the rash and the ticks. I is the first time I mention to [the father] about the rash although she had come home with a rash several times. [The father] immediately goes into saying “it’s not my fault” “I’ve not done anything wrong” “What are you exactly accusing me of?” I was wondering why she was getting it there and not here and what we could do about it, so was surprised about [the father’s] reaction. I was cross with finding so many ticks as I had many conversations about protection from ticks, having to even supply [the father] with mosquito repellent.
On the following day the parties had an email exchange. The mother commenced that by saying that when she bathed the child on the night before, she had found five ticks on her body. In substance, she was either expressly or by necessary implication, alleging neglect of the child by the father in failing to detect the presence of the ticks. After a couple of communications, the father then referred to the “accusations” which the mother had “laid on me” yesterday and said that he found it extraordinary that the child could have five ticks on her. He went on to say “you are obviously trying to make me out to be abusive/neglectful towards [the child] and I DO NOT like it.”
To this the mother responded as follows:
… I am stating that she regularly comes home with a really red, sore, “fufee” and bum, which doesn’t occur here. I don’t have a problem with her getting sore here even though she has a nappy on all night. I don’t know why she is getting this whilst at your house and you can’t explain it either. I don’t know how in two hours it can become so bad.
The conversation extended to 22 August 2011, on which date with the mother said to the father:
As with the fufee, it happened a few times and I thought it was a bit weird but dismissed it. Then the other day it was really bad and I was meant to mention it, but there have been so many other things that have come up since then. So I thought if that happens again and I wasn’t expecting it to, then I will be mentioning it. It was so bad the other night, it made me really cross. The poor little girl was REALLY sore, the worst yet.
Also on 22 August 2011, the maternal grandmother sent a handwritten letter to the father in the following terms:
Dear …
I am utterly sickened by your attitude. [The child] came home with 5 ticks and red-raw genitals. All day yesterday she kept telling us she didn’t feel very well. And all you can do is accuse us of wanting to make out that you are a neglectful father. Well, for one thing, if the cap fits wear it. But much more importantly, where is your concern for [the child]? Have you even stopped to think “poor little girl, I am so sorry that happened, what can we do to make sure it doesn’t happen again?” No, as usual it’s all about you. If we hadn’t found those ticks I dread to think how sick she could have been. How many does it take to kill a child? I don’t know. But tick poison is cumulative. While it is tick season, you need to protect her and check her much more thoroughly. Please do not send her home with raw genitals again either. This has happened way too many times to be coincidence. I am scared to let her be in your “care”.
(original emphasis)
The maternal grandmother was cross-examined about the implicit assertion that it was she who could determine the father’s care of the child. She denied any such implication.
In the father’s affidavit of 26 April 2013 at paragraph 86, he says that at the next changeover the mother made a comment to him that perhaps the rash was related to the “humping” behaviour of the child that both parents had observed her to do. Then on 25 August he sent the mother a Facebook message saying:
I think you might be onto something with the observation that her rash might be due to her “humping” the stuffed toys, perhaps her nickers chaff her? Although she hadn’t been doing it the other night when you said it was really bad, do you think that might have actually been due to the tick bite you found later?
The father says that he received no reply to that message.
It appears as though this paragraph was a repetition of a paragraph in an earlier affidavit of the father’s. At paragraph 92 of her affidavit filed 16 April 2012 the mother responded to that allegation in the following terms:
I deny it was me who suggested the humping behaviour may be causing the red genitalia. It was not me but [the father] who suggested that humping caused the rashes when I visited him. He also suggested various other things that could cause the rash including: chocolate, laundry liquid, the sand pit.
At paragraph 93 she said “I noted that [the father] said on Facebook that I had said maybe the humping when actually it was him who said it cause the rashes. I was annoyed with him for this and I wondered why he had said that on Facebook. I did not think the tick had caused the rash as it was on her leg. I had already explained that to him so I felt he was not listening to me so I decided there was not much point in trying to dialogue further at that stage.”
In September 2010 a friend of the maternal grandmother, Ms A, came to stay with her from the UK. She had been sexually abused as a child, and was concerned when she saw the child’s humping behaviour. She raised with both the mother and maternal grandmother the prospect that the child had been abused. They both began to become concerned.
Apart from some issues the mother had about leech bites, nothing seems to have concerned her about the child’s care when with the father thereafter until 30 October 2011. On the following day she sent a message to the father as follows:
…
Just to let you know that [the child] came home yesterday with a bad fufie rash and it looked a bit better this morning before she left but when she came home it was really bad again. Are you noticing any common factors as to why she is getting it? I am not with her when it happens so struggling to understand the reason for it… Please could you purchase some Weleda Calendula Nappy Change Cream to put on her fufie while she is at yours.
On the following day the father responded as follows:
…
Just about every time she visits she says at some stage “go away daddy, I am going to hump this bear/pillow/whatever.” I am finding it quite disconcerting and just do what I can to discourage or ignore it, change the subject, but she seems to be persisting with this ongoing preoccupation with “humping” as she calls it.
Further interim consent orders were made on 21 November 2011 which again provided for equal shared parental responsibility and for the child to live with the mother. However whilst up until Thursday 22 December they continued the daytime regime whereby the child spent time with her father on Mondays, Thursdays and Saturdays, on Christmas Day the father was to have the child for the first overnight visit, and from Monday 9 January 2012 the Thursday visit was to extend overnight until 8:00am on Friday as well. Then on and from 9 April 2012 both the Monday and Thursday visits would extend to overnight, so that the father would have the child until 8:00am Tuesday and Friday. A specific order provided that the father would notify the mother if during an overnight stay the child became distressed and he was unable to settle her.
In fact the first overnight stay that the child had with the father was earlier than contemplated by those orders and was on 30 November 2011. That was because the mother’s father, who was then again visiting Australia from the United Kingdom, had a heart attack and was hospitalised on the Gold Coast. The mother asked the father to care for the child and he did so.
In her evidence, the mother freely conceded that she was highly anxious about the child going into the father’s care for overnight periods. That was because her concerns in relation to the father’s capacity to care for the child, based on historical alleged failures on his part, were high, and it would be the first time that the child would commence to regularly spend lengthy periods away from her.
Between 1 November 2011 and 23 January 2012 no further dialogue occurred between the mother and father in relation to either humping behaviour or red genitalia of the child. However the mother’s diary, amongst numerous records of troubling behaviour on the part of the child, does record as follows:
·On 20 December 2011: “[the child] comes home with a red raw vagina and anus. She is very tired, cranky and says she is sore. She tells me she doesn’t like ‘bad cuddles only good ones’ when I ask her what a ‘good cuddle’ is she says ‘one with mumma’ and when I ask her what a ‘bad cuddle’ is she looks scared and puts her head in her hand saying ‘I don’t want to talk about it’ ‘leave me alone’ ‘don’t ask me that’ and she pushes me away;”
·On 23 December 2011: “…[the child] screams lots whilst we are there and bites herself and takes herself away into another room to ‘hump’ which my friend asked me about. I tell her I am worried about it”;
·Wednesday 11 January 2012: “…went into the bedroom and closed the door. When I went in there she told me to go away. I asked her why she wanted me to go away and she told me because she wanted to do humping with her toy teddy. I tried to discourage her and find her a new thing to do with me.”
On Boxing Day, and hence immediately after the child had returned from spending Christmas night with the father, the mother, child and maternal grandmother went on a holiday together to Sydney for two weeks. It appears this meant that the father “lost” five or six days of time with the child, and he demanded “make-up” time. On 11 January 2012, the father sent the mother a Facebook message in which, in part, he said:
You are clearly convinced that it is most important for a child, particularly a girl, to be totally dependant on their mother until they are…how old…28, 30? You are proving this by your own behaviour. You are encouraging [the child] to be dependant and fearful. You are also deliberately attempting to drive a rift between her and her father, by being obstructionist towards her having reasonable contact time with me, and you are blatantly flaunting the court’s orders in this instance. [The child] has on no occasion shown any signs of distress, or desire to go back to you while she has been in my care, and I am just as capable as you are of providing an equal amount and quality of care, especially as she was breast fed for such a short period. I see no point in any further discussion of the matter.
You mention the father’s role is to ‘go out and get a job’. What a stereotype. Need I remind you that when [the child] was born you would not even let me go out to do jobs because you felt you could not be left alone with [the child]. There is not much motivation to get a job when it would mean having even less contact time with my daughter, and when half my wage is going to be leeched away by you so you can just sit at home in comfort with our daughter.
The criticism made of the father is a little broader and in that regard the mother still places some weight upon the allegations of neglect in 2010. However the father has relied on affidavits from a number of people who have seen him caring for children subsequently, and there is no real basis to think that the father would neglect any of the needs of the child.
Section 60CC(3)(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
This matter is not engaged.
Section 60CC(3)(h): If the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right
This matter is not engaged.
Section 60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
This matter has been sufficiently addressed earlier in the reasons.
Section 60CC(3)(j) Any family violence involving the child or a member of the child’s family
There are allegations of family violence against the father. It is unnecessary to determine whether in fact they occurred on the balance of probabilities as this matter is not to be resolved by considerations of family violence.
Section 60CC(3)(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:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
A family violence order applied but was ultimately set aside by the District Court of New South Wales. No inferences can be drawn from it.
Section 60CC(3)(l): Whether it be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
This matter is engaged in that the orders of the Independent Children's Lawyer specifically contemplate a live and probable consequence that the father will need to bring further proceedings. That would not be a likely consequence of the mother’s orders, but would be a potential consequence of the father’s orders. Whilst plainly it would be preferable to put this litigation – which has now been in existence since 2010 – to an end, it simply may not be possible to do so in this case.
Section 60CC(3)(m) Any other fact or circumstance that the Court thinks relevant
To the extent that there are other facts or circumstances that are relevant, I have discussed them earlier in these reasons.
PARENTAL RESPONSIBILITY
I am not satisfied that there is any reasonable basis to believe that there has been family violence here. The presumption of equal shared parental responsibility therefore applies. However it is inconceivable that these parties could negotiate as required by s 65DAC(3) in the event that there was an order for equal shared parental responsibility. They simply cannot communicate. Parental responsibility must follow the primary residence of the child. Any other arrangement would be unworkable and that cannot possibly be in the best interests of the child.
WITH WHOM SHOULD THE CHILD LIVE?
The father’s proposed regime of orders initially contemplate the complete removal of the mother from the child’s life, followed by her gradual re-introduction, plateauing at a modest level. He has equivocated as to the extent to which the mother should finally be involved. For some years his position was that there ought to have been an equal shared care arrangement, but now his position would see the mother’s role much reduced: he sees the child living with him and only spending three weekends per term with the mother and half of school holidays with her. Although the reason for that change in position was not explained, it appears likely to be the product of his realisation that the relationship between the mother and father could not possible support shared care.
However there was a worrying naivety to the father’s proposal. In cross-examination it became plain he had not really, in any detail, thought through how his proposal would work. He seemed to think that if the child initially demonstrated deep distress, it could be dealt with satisfactorily by “counselling.” He said if things went badly for the child he would seek appropriate professional help, although had then not identified any such person. Ms M thought the father’s proposals showed a lack of insight on his part. I accept that evidence.
Moreover his lack of concern for the impact his proposed orders would have on the mother was also worrying. He conceded that he “couldn’t say” what her response to having the child taken from her would be. However again he seemed to think that counselling would solve any problem she might manifest.
Likewise, whilst acknowledging the terrible history of poor – or no – communication between himself and the mother, he appeared to accept no blame for that, and thought it could be cured by “the help of professionals.”
That then brings fairly into focus the extent to which the father would be prepared to facilitate a relationship between the mother and the child. He plainly is very angry with the mother for what he perceives to be her deliberate alienation of the child. In a sense, the orders which he now seeks would visit him with the power to largely determine the quality of the relationship between the child and the mother. There is a suggestion of punishment of the mother for her conduct in his proposals. Whilst I am not persuaded that the father would not facilitate any relationship at all, I am concerned that the father might seek to have that relationship in a sense controlled by him, or at least try to exert influence to ensure that that relationship was one which suited his objectives.
Ms M, in cross-examination, said that she was troubled that although “theoretically” having the child’s best interests at heart, the father seemed very “focussed on the fight” with the mother and maternal grandmother. I accept that is correct.
The following factors favour the child continuing to live with the mother:
·She has always lived with her;
·The child’s primary attachment is with her, and not with the father;
·To change her primary residence to the father would cause her great anxiety, with the prospect of serious adverse behavioural presentations in consequence, and a real risk of long term emotional harm;
·The father is an untested full time parent for the child;
·The child has now been in a stable situation for over a year, and it is desirable to continue that stability.
On the other hand the following disadvantages attend the child remaining living with the mother:
·It is likely she will fail to promote any relationship between the child and the father, or paternal grandparents, and will attempt to thwart the development of any such relationship;
·It is unlikely therefore to maximise the benefit of any relationship between the father (or his parents) and the child;
·The child is likely to grow up believing either that she was abused by the father, or at least that he is a risk of abuse to her.
The following factors are in favour of the child moving to live with the father:
·It is likely the best means of optimising the relationship between the father and the child;
·It will see the child re-establish relationships with the paternal grandparents.
On the other hand the following points tell against there being an order that the child live with the father:
·It would substantially upset – even perhaps destroy – her primary attachment with her mother;
·She has now not successfully spent any time with the father for nearly a year, and has not even had telephone communication for over six months;
·Having the child move into the father’s primary care runs the risk of serious emotional, and perhaps long term psychological, harm to her;
·The child’s reactions to such a change cannot be predicted, even within ranges;
·Therefore changing the primary care of the child is in the nature of an experiment, with no supervision, or fall-back position in the event that it goes seriously awry. Although the father does seek a 65L supervisor, there are not funds available to allow that in Brisbane at present;
·There is some doubt as to the extent to which the father would thereafter facilitate the child’s relationship with the mother;
·The father’s proposal as to how he would deal with the child’s anxiety was naïve in the extreme: he would seek “professional help”. He seemed to think that counselling was the universal panacea for whatever adverse reaction the child might suffer.
Weighing those matters in the balance I am persuaded that, in the exercise of my discretion, the child should remain living primarily with the mother.
TIME WITH THE FATHER AND COMMUNICATION
The father is not an unacceptable risk of harm to the child. Unless there are orders permitting the father to spend time with the child, the mother is likely to actively impede the development of any relationship between the child and the father. As it is, even if there are such orders, the mother is likely to attempt to sabotage the development or rehabilitation of any relationship between the father and the child in any event. Particularly, she is likely to exploit every opportunity for review of orders, and engineer circumstances so as to cause any orders for the father to spend time with the child to fail.
The great unknown is how the child will respond to the prospect and reality of again spending time with the father.
Ms M gave evidence as to how the prospect of a positive outcome might be optimised. She dealt with that at paragraphs 8.63-8.67 or her report as follows:
8.63. [The child’s] primary care provider is her mother and so it is her mother that she will look to for confirmation and certainty when feeling confused or emotional.
8.64. If [the mother] is anxious and stressed about [the child’s] contact with her father then it is highly likely that [the child] is also feeling anxious and stressed leading up to the visits with her father.
8.65. If this period of time pre visits is also characterised by negative or emotional discussion about the trip to the center, the concerns about [the father], or the lack of desire to participate then it is highly likely that [the child’s] desire to see her father will diminish reflecting her mother’s feelings and position.
8.66. Therefore if the visits continue between [the child] and her father and no attempt is made by the mother and grandmother to change their behaviour or support [the child] to have a relationship with her father then the consequences to [the child’s] health and well-being will continue to be negative.
8.67. In this case behavioural problems will continue and be exacerbated eroding [the child’s] one stable parent child relationship.
In oral evidence she suggested that a psychologist be utilised to help prepare for, and debrief after, the child spending supervised time with the father. She could not identify the likely time frame that such assistance might be needed; rather she said that the key was to ensure that the child was consistently feeling secure and stable in the presence of the father before it should cease. She recommended that the father and child undertaking joint activities together during the child’s time with him might be a useful technique.
Of course, she herself had been unable to effect the introduction of the child with her father in her rooms. She said that the fundamental problem had been that she had run out of time. In retrospect, she said she would have structured the process differently. She would have allowed more time, required a different carer for the child than the mother, and would have first developed rapport with the child. Specifically she explained that she would have used a different carer because it was probable that the mother and maternal grandmother’s affect or words could contribute to the child’s emotional state and reaction.
I accept that evidence, and particularly am persuaded those strategies are sound.
The risk of an extreme emotional reaction by the child in the father’s presence means that, at least initially, any time he spends with the child should be supervised, notwithstanding my findings in relation to him not being an unacceptable risk of sexual harm. As has been seen, on occasions in the past when the child has so reacted, he has simply not known what to do, and Contact Centre staff have had to intervene. Supervision would have the further advantage of – to the extent that anything can – placating the mother’s fears in relation to the father sexually abusing the child.
I am satisfied that the mother, and particularly the maternal grandmother, have in the past sabotaged the supervised time which the father has spent with the child, or at least was intended to spend with the child. The examples of the maternal grandmother’s behaviour in 2013 could be construed no other way. She was attempting to cause the then imminent time with the father to fail.
That behaviour must stop. Whilst the mother will have great difficulty in accepting that I have rejected her argument that the father presents an unacceptable risk of sexual harm to the child, she will need to. This child cannot grow up with the belief that her father sexually abused her, or presents an unacceptable risk of sexual harm to her. The evidence simply does not reasonably support such a conclusion.
I am satisfied that there should be orders that the father spend time with the child, as that would be in her best interests. There are only two sets of competing proposals on the table. The first is the mother’s alternative orders, which I assess as being deliberately engineered to ensure that she can cause the regime to fail. I have little doubt that she and the maternal grandmother would seek to manipulate the child’s presentation to psychologists in a way which would preclude them from recommending the commencement of time, or alternatively if time was starting to be spent, undermine it to the point where they recommended its suspension. That regime of orders cannot possibly be in the best interests of the child. The only other regime of orders is that of the Independent Children's Lawyer. It has the disadvantage that it is likely that the orders may only be short-lived, assuming the father exercises his liberty to apply. That means that this litigation is probably not really at an end, even though the orders which I make will be final.
However there is one advantage to that. Subject to any appeal, the parties will be bound by the findings of fact which I have made in these proceedings. They will not free to re-litigate the matters that have been determined in them. The mother will be bound by a finding that the father is not, on the facts before me, at this point adjudged an unacceptable risk of sexual harm. She will also be bound by the finding that unless the father has a meaningful relationship with the child, she is presently herself a real risk of substantial harm to the child, because she is intent upon destroying the relationship between the father and the child.
As initially formulated, the Independent Children's Lawyer’s orders saw both the mother and father able to bring the matter back before the court for review of the orders. The mother cannot be trusted with that power. It would only provide her with an incentive to set the regime of orders up to fail yet again. Only the father should have liberty to apply.
The Independent Children's Lawyer’s orders also adopted the recommendation of Ms M that a psychologist be utilised to assist with the child spending time with the father. As formulated, the Independent Children's Lawyer proposed that occur for six occasions, however I am satisfied that if more than six are required, then the psychologist should be able to require their involvement to continue.
Further, although the orders as proposed by the Independent Children's Lawyer anticipated that the child would go from the psychologist to the H Contact Centre and then back to the psychologist, I am not persuaded that this is necessarily the best arrangement. I could well envisage that the psychologist may wish to be involved in the first introduction of the child to the father, perhaps even at her or his rooms. They might wish to have the child spend time with the father – under their supervision – at a park or playground. Subject to any submission to the contrary, I think that the psychologist should have some therapeutic flexibility available under the orders.
Moreover it is quite possible that the psychologist might wish to meet with the child to establish rapport on one or more occasions prior to the child first meeting the father. Again, it seems to me, subject to argument, that the therapist should be able to determine for themselves the optimal plan.
However, these are not matters which I raised with the parties during the trial, and there may be some matters relevant to them which they wish to raise. I will therefore direct that on or before 4:00 pm on Monday 27 April 2015, the parties make file and serve any written submissions as to the precise terms of the orders articulated at the start of these reasons, and on or before 4:00 pm on 30 April 2015, make file and serve any submissions in reply.
I will then consider the matter in chambers, and issue final orders, with, if needs be, some further reasons, on Friday 1 May 2015 or such later date as may be advised to the parties. I excuse the parties from attendance at the time I pronounce those orders, and will have them sealed, scanned and emailed to the parties on the day that they are made.
For these reasons there will be orders permitting the father to spend time with the child substantially as ultimately proposed by the Independent Children's Lawyer, subject to any submissions about the modifications discussed above.
OTHER ORDERS
The other orders sought by the Independent Children's Lawyer are largely self-explanatory, and logically follow from the determination of the child’s residence and whether she should spend time with the father. However I should specifically advert to the restraint upon the mother taking the child for counselling or psychological intervention.
This order reflects Ms M’s recommendation in paragraph 9.11 of her Family Report where she said:
It is recommended that [the child] not attend further counselling or psychological interventions unless recommended by her school and or her doctor, or specifically to address problem behaviours. She has to date been overwhelmed by professional interventions with adults and at times this can have the opposite effect of the intended intervention.
I accept that evidence, and am satisfied that such an order is therefore in the child’s best interests.
It is entirely possible that the father will seek to exercise his liberty to apply to vary the orders. However the Independent Children's Lawyer’s proposed orders would see him discharged upon the appointment of a psychologist. In the event that the father exercised his liberty to apply, the further appointment of an Independent Children's Lawyer would be necessary. That would be an unnecessary delay. I therefore propose to discharge the Independent Children's Lawyer at 12 months from the date of these orders, but not earlier.
CONCLUSION
I have already directed the filing of further submissions as to the detail of the proposed orders which appear at the commencement of these reasons, and will defer making orders pending their receipt.
I am satisfied that the division of the parties’ net assets 70/30 in favour of the parent with whom the child primarily resides is just and equitable.
Accordingly I direct that on or before 4:00pm on Monday 27 April 2015 the parties bring in orders in the property proceedings in accordance with their agreement.
I certify that the preceding three hundred and forty-three (343) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 20 April 2015.
Associate
Date: 20 April 2015
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