Granato & Granato (No. 2)
[2021] FamCA 635
•27 August 2021
FAMILY COURT OF AUSTRALIA
Granato & Granato (No. 2) [2021] FamCA 635
File number(s): BRC5179 of 2017 Judgment of: CAREW J Date of judgment: 27 August 2021 Catchwords: FAMILY LAW - CHILDREN – Unacceptable risk of sexual harm - Where the mother alleges the father is an unacceptable risk of sexual harm to the child due to historical allegations, alleged child pornography in the father’s possession and allegations made by the child – Where it is found the father does not pose an unacceptable risk of harm to the child - Where little weight can be placed on historical allegations – Where it is likely that the mother has fabricated allegations that the father possessed child pornography – Where the child’s allegations of sexual abuse are unreliable and made in the context of being enmeshed in the parental conflict.
FAMILY LAW – CHILD ABUSE - Where the mother will not promote the child’s relationship with the father – Where the mother has involved the child in the parental dispute and this involvement amounts to abuse - Where the impact on the child being involved in the dispute is likely to have long term impacts – Where the child has aligned with the mother and fully rejected the father.
FAMILY LAW – CHILDREN – What parenting order is proper – Where despite the father not presenting an unacceptable risk of harm, the child refuses to see him and demonstrates strong resistance that places her at risk in the event of removal from her mother – Where the father lacks judgment and insight - Where a third party was proposed to care for the child - Where it is found not to be in the child’s best interests to remove her from the care of her mother – Where the child is to live with the mother.
Legislation: Child Protection Act 1999 (Qld)
Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Cases cited: Bant & Clayton (2019) FLC 93-924
Banks & Banks (2015) FLC 93-637
Baghti & Baghtiand Ors [2015] FamCAFC 71
Briginshaw v Briginshaw (1938) 60 CLR 336
Johnson & Page (2007) FLC 93-344
M v M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92-655
Re David (1997) FLC 92-776
Number of paragraphs: 173 Date of last submissions: 27 July 2021 Date of hearing: 12 – 16 July 2021 Place: Brisbane Counsel for the Applicant: Mr Linklater-Steele Solicitor for the Applicant: Parker Family Law Counsel for the Respondent: Mr Kissick Solicitor for the Respondent: Power Legal Counsel for the Independent Children's Lawyer: Ms Murphy Solicitor for the Independent Children's Lawyer: Legal Aid Queensland ORDERS
BRC5179 of 2017 BETWEEN: MR GRANATO
Applicant
AND: MS GRANATO
Respondent
INDEPENDENT CHILDREN'S LAWYER
Other
ORDER MADE BY:
CAREW J
DATE OF ORDER:
27 AUGUST 2021
THE COURT ORDERS THAT:
1.X (“the child”) born … 2009 live with Ms Granato (“the mother”).
2.The mother is restrained from changing the child’s surname.
3.The mother is restrained from:
(a)Audio recording the child; or
(b)Audio recording any conversations involving the child; or
(c)Video recording the child; or
(d)Video recording any conversations involving the child;
Where such recordings involve the child speaking about:
(a)Allegations in relation to the father; or
(b)Allegations about the father's conduct or behaviour towards the child and/or the mother.
4.The mother is restrained from causing or permitting a third party from:
(a)Audio recording the child; or
(b)Audio recording any conversations involving the child; or
(c)Video recording the child; or
(d)Video recording any conversations involving the child;
Where such recordings involve the child speaking about:
(a)Allegations in relation to the father; or
(b)Allegations about the father's conduct or behaviour towards the child and/or the mother
Unless such recordings are permitted by law for the protection of the child.
5.The mother is restrained from providing to any school the child attends:
(a)A copy of any affidavit filed in the family law proceedings or the domestic violence proceedings between the mother and the father or between the father and any other person; or
(b)A copy of any document (including any recording) produced to a court in response to a subpoena; or
(c)A copy of any document (including any recording) received as an exhibit in any court proceedings between the mother and the father or the father and any other person; or
(d)A copy of any document (including any recording) disclosed in any court proceedings between the mother and the father or between the father and any other person.
6.The mother shall keep the child informed of the father's contact details, in the event the mother is advised of a change to the father's contact details.
7.The mother shall keep the father informed of:
(a)The name and address of the school attended by the child;
(b)The names and addresses of any treating medical or other health practitioners who treat the child; and
(c)Any serious medical condition or illness suffered by the child.
8.The mother and the father shall keep each other informed at all times of their respective residential address, email address, telephone and mobile numbers and shall notify the other within twenty-four (24) hours of any change thereto.
9.The mother and the father are restrained from denigrating the other or their respective family members to, or in front of, or within the hearing of, the child and shall direct third parties to refrain from denigrating either party or their family to, or in front of, or within hearing of, the child and failing that third party’s compliance with such a direction, shall remove the child from that environment immediately.
10.The father is at liberty to attend the child's school at all such times as permitted by the school but in particular:
(a)For the purpose of attending interviews with the child's classroom teacher/s, or other school staff, provided the interview occurs on a date and time that the mother would not reasonably be expected to be in attendance; or
(b)Upon invitation from the child to attend events at the school that parents ordinarily attend.
11.This Order authorises any treating medical practitioner to release to the father any information or documentation about the child’s medical condition and/or treatment that they are lawfully authorised to release to a parent.
12.This Order authorises any school attended by the child to provide to the father on his request, and at his expense, information about the child's educational progress and other school related activities including copies of school reports, photographs, certificates and awards obtained by the child.
13.The mother is restrained from applying for a passport in the name of or including the child X born … 2009 until the child attains the age of 16 years on … 2025.
14.This Honourable Court requests that until … 2025 the Australian Federal Police place X born … 2009 on the family law watch list at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia in breach of this Order.
15.The Marshal and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to this Order.
IT IS FURTHER ORDERED BY CONSENT
16.Until the child attains the age of 16 years of age on … 2025, the mother and her servants and agents are restrained from taking or sending or attempting to take or send the child X born … 2009, a female, from the Commonwealth of Australia.
IT IS FURTHER ORDERED
17.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.
18.Any outstanding application be otherwise dismissed.
NOTATION
A.This Order does not prevent the father from spending time with or communicating with the child if there is agreement between the mother and father for that to occur or if there is agreement between the father and the child for that to occur. This Order does not prevent the father from visiting the child at her school if agreed to by the child and permitted by the school.
B.This Order does not change the lawful rights of each parent to exercise parental responsibility in relation to the child. The parents are not required to make decisions jointly about major long terms issues as that term is defined in s 4(1) of the Family Law Act 1975 (Cth).
C.It is noted that pursuant to the Order made by this Honourable Court on 16 July 2021 the mother is required to bring the child to the Child Dispute Services on level 3 of the Commonwealth Law Courts Building North Quay Brisbane to facilitate a family consultant explaining this Order and the reasons to the child.
D.It is further noted that this Honourable Court has arranged for an interpreter to be present when judgment is delivered to translate the order and the reasons to the mother.
E.It is strongly recommended that the father engage with Dr B, or such other psychologist that he chooses, prior to attempting any communication with the child or the school and for that purpose he is at liberty to provide to her a copy of the reasons for judgment dated 27 August 2021.
F.It is strongly recommended that the mother engage with a psychologist to assist her to gain some insight into the damaging impact of her behaviour on the child and for that purpose she is at liberty to provide to the psychologist a copy of the reasons for judgment dated 27 August 2021.
G.It is respectfully requested that the Independent Children’s Lawyer bring [106] – [116] of the reasons for judgment dated 27 August 2021 to the attention of Ms C.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Granato & Granato has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:
Mr Granato (“the father”) and Ms Granato (“the mother”) have been in dispute about parenting matters for at least the last four years. They have one child together. X will be 12 years of age in 2021.
Until November 2020 the child was spending alternate weekends with the father from after school Friday until before school Monday and in the other week from Wednesday after school until Friday before school. The father has not spent any time with the child since 13 November 2020. The child refuses to see the father. Even with reassurance from the family consultant, Ms D, on 3 June 2021, the child refused to participate in the family report interview process and no observation of the father and child was possible.
The mother contends that the father poses an unacceptable risk of harm to the child and that any future time spent by the father with the child needs to be supervised or in a public place. The father denies all allegations against him and contends that the child should live with him.
For the reasons which follow, I propose to order that the child continue to live with the mother. I do not propose to make any order for the father to spend time with the child but nor do I intend to restrain him from doing so. However, the father would be well advised to heed advice (previously received by him) about how to engage with the child, if that occurs in the future. Further, I do not intend to make any order varying the statutory rights of each parent to make major long term parenting decisions. The reality is that the mother has largely been making those decisions in any event.
PROPOSALS OF THE PARTIES
The father’s primary proposal is for the child to live with him and spend no time and have no communication with the mother for nine months before resuming time with her on a supervised basis, but only if she has completed successful therapy.[1] The father’s alternative proposal is for the child to live with a friend, Ms N, and for both he and the mother to spend supervised time with the child after therapy has been commenced with Dr B.[2]
[1] The father nominates Dr B or another suitable therapist.
[2] The precise terms of the order sought by the father are as set out in his Amended Initiating Application filed 14 June 2021 and in the alternative as set out in Exhibit 32.
The mother’s primary position is for the child to continue to live with her and spend supervised time with the father. In the alternative, she proposes that the father spend unsupervised time with the child in a public place.[3]
[3] The precise terms of the order sought by the mother are set out in her Response to Initiating Application filed 13 July 2017 as amended by her Case Outline filed 7 July 2021. The mother did not provide a minute of order setting out her alternative proposal.
The Independent Children’s Lawyer (“ICL”) proposes that the child continue to live with the mother and that she have sole parental responsibility. Further, that the father spend no time with the child, not because he poses an unacceptable risk of harm to the child but because the child refuses to see him.[4]
[4] The precise terms of the order sought by the ICL are set out in Exhibit 36.
ISSUES
At the time the matter was set down for trial, the parties identified the significant issues for determination and confirmed during the trial that the following list accurately and adequately identify those issues:
(1)Does the father pose an unacceptable risk of sexual harm to the child?
(2)Does the mother have the capacity/willingness to promote the relationship between the child and the father?
(3)Has the mother involved the child in the dispute between the parents and what impact, if any, has that had on the child?
(4)Will the mother comply with court orders and ensure that the child spend time with the father, if ordered?
(5)Can the child have a relationship with both parents if she continues to live with the mother?
(6)If the child remains in the primary care of the mother, should she be able to travel to Country E with the mother on holiday?
(7)Do the parents have the capacity to make joint parenting decisions?
There were some unusual procedural features in this case.
Firstly, on day four of the trial, the mother was granted leave to tender historical material from family law proceedings between the father and his first wife, Ms F. The material for which leave was granted comprised the following:
(a)Affidavit of Ms F filed 7 April 1981;
(b)Affidavit of Ms F filed 9 February 1983;
(c)Affidavit of Ms F filed 4 March 1983;
(d)Affidavit of Dr G filed 11 February 1983;
(e)Affidavit of Dr G filed 4 March 1983;
(f)Affidavit of the father filed 11 March 1983; and
(g)Orders made on 22 September 1980, 11 March 1983, 23 January 1984, 11 July 1985 and 13 January 1987 (there was no formal order taken out on 13 January 1987 but it is common ground that the father’s application to spend time with his first child, H, was struck out).
Although there was most certainly prejudice to the father by the late reliance upon this material, it was determined to be relevant to the assessment of the magnitude of any risk posed by the father to the child. As a consequence, the father was granted leave to tender a number of documents filed by him in the 1980’s family law proceedings and the father’s counsel had the opportunity to cross-examine the father’s first wife at some length.
The material the father was granted leave to tender from those earlier proceedings comprised the following:
(a)Affidavit of Ms J (the first wife’s sister) filed 9 February 1983;
(b)Paragraphs 1 – 11 of the affidavit of Ms F filed 13 January 1984;
(c)Affidavit of Mr K (General Practitioner) filed 16 January 1984;
(d)Affidavit of Mr I Granato (the late paternal grandfather) filed 20 January 1984
(e)Paragraphs 7 and 8 of the affidavit of Ms J filed 16 January 1984;
(f)Affidavit of Ms L (the father’s cousin-in-law) filed 24 January 1984;
(g)Affidavit of the father filed 31 August 1983;
(h)Affidavit of the father filed 22 June 1981; and
(i)Affidavit of Ms M (General Practitioner) filed 17 January 1984.
Secondly, when it became obvious during the trial that I had misgivings about the conduct of both parents in front of the child, it led me to raise the possibility of placing the child with a person other than either parent, if a suitable person could be found. The father was granted leave to adduce further evidence in chief from a witness called in his case, Ms N. In particular, Ms N said she would be prepared to provide short or long term care for the child if it were determined that it was not in the best interests of the child to currently live with either parent. The father was also granted leave to amend his application by including an alternative to the primary order sought by him, namely, that the child live with Ms N and spend supervised time with each of the father and the mother for a period.
Thirdly, on the last day of the trial the mother was unable to be present to hear submissions, for reasons apparently beyond her control. The mother was provided with a transcript of each party’s submissions and her counsel was granted leave to file supplementary written submissions which was done on 27 July 2021.
Before turning to consider the identified issues, it will be helpful to set out some background to the dispute and to set out the legal principles that will be applied.
BACKGROUND
The parties met via an internet dating site in 2008 and began living together in December of that year. They married in 2009 and separated in February 2016. They have one child together. X (“the child”) was born in 2009.
The father was born in 1957 in Country A and is 63 years of age. He moved with his family to Australia in 1969. The father operates his own business.
The father has had three previous marriages and has one other child. Ms H was born in 1978 and is the child of the father and the first of his spouses, Ms F (“first wife”). The father and his first wife lived together between January 1977 and January 1980. The father has seen Ms H on only one occasion since 1983. On that occasion, the father says that Ms H would have been about 20 years of age and he had a conversation of about five minutes duration with her in the presence of the preacher from his local church. The father has had no contact with Ms H since then.
The mother was born in 1974 in Country E and is 46 years of age. She moved to Australia in 2008. The mother is not employed. The mother’s extended family remain in Country E. The mother twice returned to Country E with the child during the marriage. The first time was in 2011 and the second time was in 2014.
The parents and child live in South East Queensland approximately 30 minutes apart.
The child currently attends P School where she is in grade six. For most of her schooling, the child attended Q School at Suburb R and for a brief period in early 2020 she attended S School. The mother and child lived in the former matrimonial home at Suburb R until 23 August 2020.
On 12 February 2017 police applied for a protection order against the mother for the protection of the father. The application was made as a result of the mother assaulting the father at his home on 11 February 2017 in front of the child. The father recorded the incident and provided the recording to police. The mother was charged with assault. The police records include the following assessment:
Police believe the [father] is unable to protect himself from the [mother] as he has such a fear of losing his child that he will give into any demands made by the [mother]. The [mother] has shown a tendency for violence against the [father] when the [father] is in his home. Police ask that an order be made to protect the [father], and that the [mother] may not be allowed to be within 100 metres of the [father’s] home.
The mother filed her own application for a protection order against the father on 13 February 2017.
While the evidence is somewhat unclear it seems that the mother stopped the father spending time with the child for a period from January 2017. In order to see the child, the father commenced attending upon the child’s school to spend time with her.
A final protection order was made in favour of the father against the mother on 3 May 2017 for a period of two years. The mother pleaded guilty to assaulting the father and was placed on a good behaviour bond upon entering into a recognisance in the sum of $500.
On 26 May 2017, the father filed an Initiating Application for final parenting orders in the Federal Circuit Court of Australia (“Federal Circuit Court”), seeking an order for equal shared parental responsibility and that the child live with him and spend time with the mother.
On 1 June 2017 the mother made a complaint to police that on 20 March 2017 the father had touched the child in a sexually inappropriate way. The mother told police that the father was a paedophile because he watched adult pornography and that she had been told by a psychologist that men who watch pornography become paedophiles.
As part of their investigation, the child was interviewed by police on 9 June 2017. The police concluded that the complaint was likely to be vexatious.
On 5 July 2017, the Magistrate dismissed the mother’s application for a protection order against the father and the mother was ordered to pay the father’s costs. The magistrate found the mother’s application to have been malicious and that the mother had been unrelenting in her insulting and threatening behaviour towards the father. It was also found that the mother’s conduct in recording the child for the purposes of the proceedings was abusive and that the mother had threatened to prevent the father from spending time with the child unless she met his financial demands.
On 18 July 2017 an ICL was appointed and the parties were ordered to attend upon a family consultant pursuant to s 11F of the Family Law Act 1975 (Cth) (“the Act”).
For reasons that remain unclear (given that a protection order was already in force) a further protection order was made in favour of the father against the mother on 30 August 2017. The order was later varied on 16 October 2019 and remains in force until 16 October 2024.
An interim parenting order was made on 6 October 2017 providing for the father to spend alternate weekends with the child from after school Friday until before school Monday. With the consent of the parties, the order included non-denigration provisions, restraints on the parties posting information about the court proceedings on social media, a requirement for each parent to encourage the child’s relationship with the other parent and for the father to spend half holidays with the child.
On 29 December 2017 the mother made a complaint to police that she had been punched in the face by the father and thrown against a metal shed. When police attended they noted a small amount of dried blood around the mother’s nose. They listened to the audio recording the father had made from the time of his arrival at the mother’s home (to return the child to the mother) to when the police arrived. The police records include the following assessment:
There is no possibility that [the father] could have caused the injuries to the [mother]. The audio recording is not consistent with the alleged struggle, punch and throwing of the [mother] into a metal shed. There is no recording of a struggle in the audio.
As a consequence of the mother’s actions, she was dealt with for breaching the protection order and fined.
The parties and child attended interviews for a family report with Ms T on 14 March 2018. The mother had the assistance of an interpreter during the interview process. Ms T opined that the child was at risk of being alienated from the father and recommended that she spend significant time with him i.e. either week about or alternate weeks from Wednesday to the following Monday.
On 6 June 2018 the mother was convicted of breaching the protection order for a second time by sending denigrating messages to the father and stalking him in December 2017.
The father commenced defamation proceedings against the mother in the Queensland District Court on 25 June 2018 relating to Facebook posts by the mother about the father. In early December 2019 the mother signed an apology letter retracting the comments made on social media.
On 6 August 2018 the mother was fined $500 for breaching the protection order between 30 April 2018 and 13 May 2018.
On 24 September 2018 a consent order was made extending the father’s time with the child to alternate weekends from Friday to Monday and in the other week from Wednesday to Friday. In November 2018 the matter was set down for a final hearing in mid-2019.
A second application by the mother for a protection order against the father was dismissed on 22 May 2019 with the Magistrate finding that the application was malicious and that the mother appeared to have “falsified evidence”. The falsified evidence related to the doctoring of email communications from the father. It was further found that the mother had sought to use domestic violence proceedings as leverage over the father’s ongoing relationship with the child and that the mother was “prepared to use contact with [the child] as a means to achieve other ends”.
Unfortunately, the father was diagnosed with cancer in 2019 and he underwent treatment over several months. The hearing dates in July 2019 were vacated and alterative dates for both parenting and financial matters were listed for December 2019.
The father is currently in remission and otherwise in good health.
The parents and child participated in further interviews with Ms T for an updated family report on 13 November 2019. Ms T noted that the child was “enmeshed in the parental dispute” and that she had ““chosen a side” as a way of opting out of the conflict between her parents”.
At the December 2019 trial the parenting matter was transferred to this Court due in large part to the mother seeking to rely upon controversial evidence involving allegations made against the father in the 1980’s. A final property order was made by consent on 2 December 2019, requiring the mother to vacate the former matrimonial home in which she and the child were living, upon the payment of $300,000 from the father. The payment was made to the mother in or about late February 2020. The mother was required to leave the property by 28 March 2020. The mother did not vacate the property until a warrant for possession was obtained by the father and a bailiff engaged. Upon the mother’s departure from the property, it was noted to be in a filthy and damaged state which included writing, with permanent marker on walls, that was disparaging of the father (which the mother contends was done by the child). The mother disputes that she caused the damage to the property and contends that when she left the property it was clean and tidy.
On 31 August 2020, when the child next came into his care, the father refused to return the child to the mother. The mother attended the father’s home and took the child.
On 14 October 2020, the child ran away from her father while spending time with him. The child alleged to police that the father had scratched and punched her. Police records include a notation that officers noted scratches on the child’s legs consistent with cat scratches and some minor bruising. There is no record of the child making any allegation of sexual assault. The father collected the child from the police station that same day and the child remained in his care until 16 October 2020. Contrary to police advice, the mother attended the police station and caused a scene outside the station, resulting in police directing the mother to leave the area.
The child continued to spend time with the father each week (alternate weekends Friday to Monday and Wednesday to Friday in the other week) until 13 November 2020. The night of 12 November 2020 was the last overnight the child spent with the father and the 13 November 2020 is the last occasion the child spent time with him. The father concedes that his attempts to persuade the child to spend time with him after 13 November 2020 have failed, some spectacularly.
On 20 November 2020 an order was made that the child spend her five nights per fortnight with the father in one block rather than broken up to time each week. The mother was also ordered to ensure the child return to Q School for her schooling. The mother had unilaterally changed the child’s school. The child did not return to Q School nor did the child spend time with the father.
In December 2020 the father conceded the issue of the child’s schooling and she remains at P School.
On 20 January 2021 the matter was again listed for final hearing to commence on 12 July 2021. A mandatory order was also made pursuant to s 102NA of the Act banning cross-examination of parties personally.
On 5 February 2021, the father went to the child’s school to collect her pursuant to the operative order of 20 November 2020. The child evaded the father and caught a bus. Upon alighting the bus, the child ran from the father and he chased her. Third parties and police became involved. It is common ground the child was screaming in protest and refused to accompany the father. When spoken to by police at her home the child alleged the father had digitally raped her in the shower.
The child took part in a recorded interview with police on 22 February 2021.
The father has not been charged with any offence. The police investigation concluded that the allegations were vexatious and made in the context of contested parenting proceedings.
On 24 February 2021 the ‘spend time with order’ was suspended and the parties were ordered to undergo psychiatric assessment. The mother did not participate in that assessment.
On 3 June 2021 the parties and child attended upon Ms D for an updated family report. The child was hostile and disdainful during her interactions with Ms D and ultimately refused to speak to Ms D and would not participate in the process. As a consequence, Ms D was unable to assess the child’s relationship with the father or her reasons for refusing to spend time with him.
APPLICABLE LEGAL PRINCIPLES
Every parenting decision requires the application of the relevant parts of Part VII of the Act which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[5]
[5] Family Law Act 1975 (Cth), s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility; and
(d)The communication a child is to have with another person or persons.
The objects and principles of Part VII of the Act are set out in ss 60B (1) and (2) and those sections make it clear that the court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.
In deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and additional considerations including: any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child and any other fact or circumstance considered relevant (s 60CC).
In considering the primary considerations the court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).
‘Abuse’ is defined in s 4 of the Act and means:
(a)An assault, including a sexual assault of the child; or
(b)A person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)Causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)Serious neglect of the child.
‘Family violence’ is defined in s 4AB of the Act and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
In cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the court is satisfied on the balance of probabilities[6] having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”[7] and proof to the reasonable satisfaction of the court “should not be produced by inexact proofs, indefinite testimony or indirect inferences”.[8] Where it is not possible to positively reject an allegation as groundless the court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[9] The components which go to make up a finding of unacceptable risk “need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard”[10] although “a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof”.[11]
[6] Evidence Act 1995 (Cth), s 140.
[7] M v M (1988) 166 CLR 69 (“M v M”) at 77, citing Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 (Dixon J).
[8] Ibid.
[9] M v M (n 7) at 77; N and S and the Separate Representative (1996) FLC 92-655.
[10] Johnson & Page (2007) FLC 93-344 at 81,890 – 81,891, [68].
[11] Ibid at 81,891, [71].
The Full Court of the Family Court recently reviewed the role of the court in assessing risk in Bant & Clayton[12] and said from [38]:
[12] (2019) FLC 93-924.
In M v M (1988) 166 CLR 69 at 78 (“M v M”) the plurality of the High Court considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child and said:
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. … 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.
It is to be remembered that the concept of “unacceptable risk” referred to in M v M was within the framework of resolving “the wider issue” namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at 76; B and B (1993) FLC 92-357).
The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment. As the High Court said in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at 218:
…Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. …
As long ago as 1995, in N and S and the Separate Representative (1996) FLC 92-655 at 82,713 – 82,714, Fogarty J said of this determination:
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.
The Full Court in Bant & Clayton[13] went on to stress the importance of the whole of the evidence in assessing risk and said at [51]:
The conclusion of the existence and magnitude of a risk was based on all of the facts and circumstances to which his Honour referred. It would not be proper to approach that task by analysing each fact or circumstance to see whether that particular fact would support the conclusion to which his Honour came, in the words of counsel for the father, to “atomise” that evidence (see Shepherd v The Queen (1990) 170 CLR 573; R v Baden-Clay (2016) 258 CLR 308). Rather, it was a conclusion formed by a consideration of all those aspects taking into account the necessary elements of prediction and assumptions about the future to which the court spoke in CDJ v VAJ.
[13] (n 12).
The court is not required to make findings of fact on every factual dispute raised by the parties.[14] The paramount issue for the court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the court “cannot be diverted by the supposed need to arrive at a definitive determination” [15] on each and every factual dispute.[16]
[14] Baghti & Baghtiand Ors [2015] FamCAFC 71.
[15] M v M (n 7) at 76.
[16] Ibid.
Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the court (s 61C).
Section 61DA provides that when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section I have considered all sections as required when making my determination.[17]
[17] Banks & Banks (2015) FLC 93-637.
I turn now to consider the issues in this matter.
DOES THE FATHER POSE AN UNACCEPTABLE RISK OF SEXUAL HARM TO THE CHILD?
The determination of this issue involves an examination of all evidence relevant to the assessment of risk of sexual harm.
A factor to which I have had regard when considering the mother’s evidence, is that English is her second language. The mother utilised the services of an interpreter throughout the trial. I am satisfied that the mother understood the questions she was asked and responded accordingly. The mother indicated during her oral evidence that she could understand English both in written and oral form but felt more comfortable for her cross-examination to be translated. Consistent with the mother’s evidence as to her understanding of English, I note that there is no jurat to her affidavit indicating that it had to be translated to her before she was able to swear to the truthfulness of its contents.
The allegations relevant to this issue can be summarised as follows:
(a)Historical allegations made in the early 1980’s that the father sexually interfered with another daughter who is now in her 40’s;
(b)The alleged discovery by the mother of child pornography in the father’s possession;
(c)An alleged statement by the child in 2017 that the father had touched her genitals; and
(d)Allegations by the child in 2020 and 2021 of sexual abuse.
Historical allegations
The evidence relied upon by the mother is set out at [10] above.
The first wife alleged in an affidavit filed on 9 February 1983 that:
(a)On 6 February 1983, H returned from spending time with the father and started to cry, and told her the following:
(i)Her stomach hurt; her father made her drink milk that was bad; she was feeling sick (at [11]);
(ii)Papa had hurt her; he had hurt her “bottom” and “pussy” and put his finger inside her bottom and inside her pussy; she did not want to see him anymore because he hurt her (at [12]);
(b)The child vomited and had a very loose bowel movement (at [11]);
(c)She gave the child a bath and noticed that she was red around her anus (at [13]);
(d)At about 7.00pm that same day, the mother took the child to a party attended by numerous members of H’s extended family. H’s aunt Ms J (the first wife’s sister) told her that H had said that the father had put his finger in her front and in her backside (at [14]);
(e)She was extremely upset (at [15]) and tried to contact the father by telephone but he was not at home (at [16]);
(f)She took H to the U Hospital in the company of her mother, and H was examined by a Dr V who told them to return the following day (at [17], [19]);
(g)On 7 February 1983 H was examined by Dr G and said in the first wife’s presence that the father had put his finger inside her bottom real hard (at [20]); and
(h)On the same day, a police woman spoke to H and she heard her say that the father had tied her legs and her hands and tied her mouth so she could not scream; he put his fingers inside her; she was crying because her bottom hurt; the father put ice on it; the father said he would kill her if she said anything and that he would put her in the fire; and that the father had bent her fingers back and hurt them (at [23]).
Dr G provided evidence by affidavit filed 11 February 1983 which included the following:
6. On examining H, I found her to be very quiet and withdrawn. The only abnormality I discovered was that the anus showed a recent tear or split about 1 centimetre long in the anterior mid-line. There was no infection nor induration. The hymen was definitely intact and the fourchette was open and there was no evidence of trauma to the fourchette.
7. Following my examination, I asked H what had happened and she said that Daddy put his finger where she did poos.
8.I asked H if she slept in the same bed as her father and she said that she did. H then told me that her father would smack her if she told anyone.
9. My examination of and interview with H leads me to believe that there was some act which had taken place which had split the skin of H’s anal canal in its anterior aspect and this lesion was recent and not repeated.
10. The lesion is not consistent with normal toilet motions nor is it consistent with a fall as it is my experience that this type of lesion can only be caused by abnormal anal dilation.
H was further examined by Dr G on 18 February 1983 and the doctor reported he again interviewed and examined H and in particular:
(a)H was prepared to discuss the episode provided he was alone and said;
(i)“Daddy was dirty” (at [3]);
(ii)“Daddy’s pussy was big and hard and hurt me” (at [3]);
(iii)“Daddy had a shower with me and tried to make me suck his pussy. He then sat me on his pussy and this hurt very much. He hurt my arms and legs because he held me so tight. He pushed his pussy in and out. His pussy went dead and Mr Granato fell over” (at [3]);
(iv)“Daddy said I am not beautiful and put me in the rubbish bin” (at [5]);
(b)This story was repeated countless times but was always consistent (at [6]); and
(c)H complained of pain with defaecation and micturition; a local anaesthetic cream was ordered for the pain (at [7]).
In a further affidavit by the first wife filed on 4 March 1983, she alleged:
(a)H was having frequent nightmares indicating that she was fearful her father would kill her (at [3], [4], [7]);
(b)H said the father picked up a knife and put it at her neck and threatened to cut her throat; he put the knife on her forehead and said he would cut her head; told her he would put a knife in her pussy and in her bottom (at [7]);
(c)On 1 March 1983, H told her, her father had threatened to kill her with a knife and that he got a rifle and put it on her pussy and said they he would blow it up if she told anyone what he had done (at [10]);
(d)H told her of an occasion when her father made her get undressed and he took his clothes off and tied her up; he put his big finger inside her bottom and that he made her touch his pussy (the first wife said that H also referred to male genitalia as “pussy”) (at [11]); and
(e)When H was examined by Dr G on 18 February 1983, H’s anus and around her vagina were still inflamed and he prescribed an ointment to be applied daily (at [12]).
The first wife provided an affidavit in the mother’s case filed on 28 November 2019 in which she alleged that on 6 February 1982 (although not corrected, it seems this date should be 1983):
(a)She was with her sister, Ms J, at the home of a friend celebrating a birthday party and at about 6.30pm H said to Ms J and the mother a number of things. She said:
(i)Mr Granato had made her drink bad milk;
(ii)Mr Granato had hit her hard when she refused;
(iii)Mr Granato had “hurt her in the bottom, and hurt her there” pointing to her vaginal area; and
(iv)Mr Granato had hurt her in the “bottom and pussy” put his finger inside her “bottom real hard” (at [10]);
(b)H had tears in her eyes when she was recalling this (at [11]);
(c)H said to police that Mr Granato had tied her legs and her hands and had tied her mouth so she could not scream; that he had put his finger inside her; he had hurt her foot bending it back (at [16]);
(d)At a later consultation, H told Dr G that her father had made her shower with him and had abused her in the shower (at [18]); and
(e)The father was charged with indecent dealing but the charges were dropped because H was too young to give evidence (at [19]).
While denying the allegations of abuse levelled against him by the first wife, the father at that time, accepted the opinion of a psychiatrist, Dr W, who interviewed the child on 2 March 1983 and concluded:
The child has obviously been questioned about this repeatedly and is overwhelmed by anxiety, fear, confusion and guilt about what has happened. Children do not suffer long term emotional consequences of sexual abuse unless the contact has been violent. Their worst problems come after the event, with repeated questioning and the surrounding emotionally charged family environment.
…
Whatever H’s relationship was with her Father, it is now in a very tenuous state. She does not want to see him. The state of tension in the family after the incident is such that H is unable to tolerate even the mention of her Father. There is no point in insisting on access at present, whatever the outcome of the charge against her Father.
…
If he is exonerated, it will take some time before any sort of relationship could be tolerated by H, let alone by the very protective family. …
After the charges against the father were withdrawn he brought a further application to spend time with H. Ultimately the father did not pursue his application.
It is difficult to place any significant weight on the historical evidence for the following reasons:
(a)At the time of the alleged disclosures H was only 4 ½ years of age and it is difficult to determine precisely what was said and when;
(b)At the time the first wife made the allegations against the father, there was a considerable history of animosity between the father and the first wife;
(c)If it is the case that H was subjected to the horrendous abuse alleged, it is entirely possible that she would still have some memory of the abuse as an adult but, despite being in contact with H and indicating to the father in a letter dated 25 November 2019 that a subpoena may issue to H, the mother did not call her as a witness and gave no explanation for her absence;
(d)The accounts of what H allegedly said to the first wife and Ms J do not purport to be set out verbatim. The actual words used by any child in such circumstances is very important because words and context are often the subject of interpretation by the adult and the interpretation may be incorrect;
(e)The questions the first wife and Ms J each asked the child are not disclosed;
(f)Ms J says the child spoke to her in Country A language with a bit of English;
(g)The child’s fluency in either language at the time is unknown;
(h)There are inconsistencies in the first wife’s evidence about the initial ‘disclosure’ e.g.:
(i)The first ‘disclosure’ was made at the first wife’s home shortly after the child returned from spending time with the father (Affidavit of Ms F filed 9 February 1983 at [12]);
(ii)The first ‘disclosure’ was made to the first wife and Ms J at the same time (Affidavit of Ms F filed 28 November 2019 at [10]);
(iii)There is no mention in the first wife’s historical affidavits of H having tears in her eyes when she made the ‘disclosure’ but that phrase appears in the affidavit of her sister, Ms J, and then appears in the first wife’s affidavit filed 28 November 2019;
(i)There are inconsistencies about what H is alleged to have said to Ms J. Ms J said that “H said her father had hurt her there, pointing to vaginal area” (Affidavit of Ms J filed 9 February 1983 at [3]) whereas the first wife says Ms J told her that “H said the father had put his finger in her front and backside”;
(j)Another witness who was present at the party on 6 February 1983 gives a different account to what occurred and says that she was called over to a group of people including the first wife and her father with the first wife saying to her “Listen, … to what H says that her father has done to her” and H then said, “Dad put his finger in my front” (Affidavit of Ms L filed 24 January 1984 at [7]). This witness had a good relationship with the father, the first wife and H. She says that H and the father always appeared to have a close and loving relationship;
(k)There were other reasons that might have explained H’s reluctance to see the father. He had been in Country A for five months in 1982, not returning until October of that year;
(l)There is no evidence of what the examination by Dr V revealed, if anything;
(m)There is no evidence that Dr G was informed that the child had been vomiting that day, had passed a very loose bowel motion or that she had a history of thrush and constipation;
(n)There is no way of knowing if constipation or the passing of a loose bowel motion could account for the tear, noting Dr G opined that it was not consistent with “normal toilet motions” (emphasis added);
(o)The medical evidence is inconsistent with digital or penis penetration of H’s vagina;
(p)There is no evidence of any questions asked of H by Dr G;
(q)By 2 March 1983 (when H was interviewed by Dr W) she opined that the child had already been questioned about this repeatedly;
(r)The ‘disclosures’ made by H became more and more outlandish;
(s)There was no evidence that the child had been tied up and gagged despite being medically examined proximate to the alleged incident;
(t)At the time the incident was alleged to have occurred, the father was living with his father and he was present during the time the incident was said to have occurred. He describes having been present at all times during this visit which included an outing to a farm and his observations of the child were that she appeared to be happy and contented throughout;
(u)Apart from the first wife, none of the other witnesses were made available for cross-examination;
(v)The father denied and continues to deny all allegations made against him by the first wife;
(w)The criminal charges against the father were withdrawn; and
(x)Apart from the allegations made in these proceedings there is no evidence the father had a sexual interest in children or had harmed a child in the intervening 28 years.
Child pornography
In her trial affidavit filed 21 June 2021, the mother contends that she suspected something odd about the father almost as soon as they started living together. She alleges that:
115. … First, while cleaning the house, I found a large box with porn photos. In these photos, he was naked with a very young girls (15-16 years old). There were more than 20 – 30 photos and in them he had sex with different very young girls. I was already pregnant at the time … Another time he told me about his previous marriage and that he had been arrested for paedophilia. I had already given birth to a daughter and he had been changing her nappies. On one occasion, I went to throw the nappy in the trash and then stayed in the kitchen and when I returned to the baby’s bedroom after about 15 minutes, he was still standing and looking at his daughter’s genitals and touching her with his finger. I pushed him away …
(As per original)
During the mother’s oral evidence she said the girls she saw in the pornographic photos looked 14 years of age.
On 13 February 2017 the mother filed an application for a protection order in the local Magistrates Court. The mother details in considerable particularity many allegations against the father including the following:
13. I know that [the father] looks at porn in the internet every day and I’m afraid that when my daughter is with him, she may accidentally go to the office with the computer and see all it. …
(As per original)
Significantly, there is no mention of child pornography.
In a mental health assessment report of the mother by Ms Y dated 15 May 2017 it is noted that:
… [The mother] reported first incident of emotional abuse took place when she accidentally found box with porn pictures belonging to her husband and when she showed it to him he got very angry and was yelling at her. …
(As per original)
There is no mention of the mother reporting the father’s possession of child pornography which one would expect if indeed that is what the mother found.
On 9 June 2017, after the child had been interviewed by police in a recorded interview, the police had a lengthy conversation with the mother and the police records state:
Police had a lengthy conversation pre and post 93A at the request of the [mother]. [The mother] stated that she is scared to let the child go to her fathers as she doesn't know what happens there and she cannot protect her there. Stated that her child is having nightmares and has recently been seeing a psychologist. Informant states that her ex-husband is a paedophile because he watches pornography (adult pornography) and she was told by the psychologist that men who watch porn become paedophiles. …
There is no mention of the mother reporting the father’s possession of child pornography to police even though the topic of pornography was discussed in the context of the mother’s allegations that the father was a paedophile. It is significant that the words of limitation i.e. “adult pornography”, appear in the police record.
Despite the mother having been interviewed for three family reports (on 14 March 2018, 13 November 2019 and 3 June 2021), she made no reference to having found child pornography in the father’s possession.
I reject the mother’s allegation that she found child pornography in the father’s possession. This allegation is more likely to have been a recent invention of the mother.
The 2017 allegation
In her trial affidavit filed 21 June 2021 the mother says the following:
115. … I raised the issue of paedophilia when [the child] complained that he touched her genitals and put some cream there in 2017.
It was not until 1 June 2017 (only days after the father commenced parenting proceedings) that the mother made a complaint to police that on 20 March 2017 the father had touched the child in a sexually inappropriate way. The mother further told police on 9 June 2017 that the father was a paedophile because he watches adult pornography and that she had been told by a psychologist that men who watch pornography become paedophiles.
The child was interviewed by police on 9 June 2017. The child recounted witnessing numerous incidents of family violence between her parents (and both parties concede that the child has witnessed family violence, although they each blame the other). The child said she was scared of her father due to the incidents she had witnessed and due to what her mother had told her. The child said her father was bad and that “He doesn’t give money. I see he doesn’t give money to mum”. The child indicated to police that the father had applied cream to her genital area after she complained of it being sore. Police records include the following assessment:
It is highly evident from speaking with all parties concerned that these allegations are vexatious and it is highly probable that although this incident may have occurred, it would not have been indecent and not of a sexual nature.
When counsel for the mother was asked whether it was still part of the mother’s case that the 2017 incident involving the father allegedly applying cream to the child’s genital area was supportive of a finding of unacceptable risk of sexual harm, he replied:
Well, I can’t make that submission.
In any event, I accept the father’s denial of touching the child in an inappropriate way on or about 20 March 2017. Quite apart from it being common ground that at about this time the child required the application of a soothing cream in her genital area, the father by this time was acutely conscious of what he believed was the mother’s propensity to make unfounded allegations against him. I accept his evidence that he was vigilant in protecting himself from allegations by mother, even going to the extreme of having the child wear her swimming costume in the shower before he assisted her to shampoo her hair. I also accept that on the occasion that the child required the application of the cream in his care, he put the cream on the child’s finger and guided her finger in order to apply the cream.
Before leaving the 2017 allegation, and although not referred to by the mother, I note that the ICL refers to a report by Ms Y dated 23 June 2017 in her written submissions, in which the child said that on one occasion (no timeframe specified), while the father was giving her a bath he touched her private parts and was looking at her which made her “uncomfortable”. I note that Ms Y’s report goes on to observe that, “every session [the child] would start talking about the father, sharing her concerns and fears without any prompting – even when she is asked about something not related to her father, she would come to the point of talking about those concerns”. In my view, this evidence raises a greater concern about the mother priming or coaching the child than it does about the any inappropriate behaviour by the father.
Allegations by the child in 2020 and 2021 of sexual abuse
In her trial affidavit filed 21 June 2021 the mother alleges that on the day the child was returned to her care, after running away on 14 October 2020, the child said the following:
84. … ‘Dad comes into the bathroom with me, scrubbing my body whilst I am in the shower, he touched me, rubbed my back and I didn’t like it, I tell him I don’t want him to see me naked, but he just laughs’.
(Emphasis in original)
On 16 October 2020, the mother took the child to her General Practitioner (“GP”) and a document produced by the doctor includes the following information:
[The child] was having a shower at the father’s house. [The child] says that the father asked whether she needs any help in the shower to scrub her body and came in to the shower and rubbed her upper back.
Then [the child] says he wanted to rub the front lower body and she said [to] the father that she doesn’t want him to do that.
In her trial affidavit the mother goes on to say the following:
87. While X has not complained of sexual abuse, outside of the privacy concerns set out in paragraph 84 herein and similar complaints raised in my earlier affidavits, she did tell me on several occasions that the father pushed her onto the ground, and she incurred injuries as a result of this rough treatment. She has also made disclosures to her psychologist, Ms C.
Ms C is a clinical psychologist but she was not engaged by the mother to provide any assistance to the child. Rather, the mother retained her for the sole purpose of obtaining a report in the hope it would assist her court case. Disturbingly, Ms C made it clear during her oral evidence that she did as she was asked by the mother, without it would seem, any proper regard to her professional obligations. This is so, despite the referral from the child’s GP, Dr Z, requesting Ms C to provide psychological assistance to the child for “anxiety, stress and adjustment issues secondary to parental separation and school problems”.
Ms C saw the child on 9 December 2020, 17 December 2020 and 24 December 2020 (by video link on this last occasion). Ms C was provided some background by the mother including her view that the father had a history of paedophilia.
The interviews conducted with the child took place largely in the presence of the mother. Ms C noted that the child “appeared sad and tense when she was prompted to talk about her experiences with her father as well as her former school”.
In her first interview with the child Ms C says that the child complained of the father touching her private parts such that it caused her physical pain and she cried. Ms C says she was told about the child running away from the father in October 2020 but there was no mention of it being linked to an incident in the shower. Ms C attributes the following complaint to the child:
I do not like to be at his place. He is in the shower. Touched me by private parts. I cried. It did hurt. He takes underwear off. Walks this way at home. I don’t like this at all. I want to be with Mum. I do not believe the police.
Ms C refers to this complaint in her report dated 15 January 2021 (in relation to the child) but does not believe the child said that the father had pushed his finger into her vagina or caused her to bleed. If the child did so, one would expect to see some record of it in Ms C’s report or in her notes.
Ms C also says the child complained about her school life at Q School alleging that the teachers did not like her and gave her low grades despite her high efforts and ignored her when she asked for help. The child also alleged that the teachers hit her in the head on occasions. By contrast the child spoke glowingly about her new school. In her second interview with the child, Ms C attributes the following information to the child:
I do not want to go to dad. He all the time enters the shower and rubs my back. I tell him leave me alone. I do not want him to cause me pain again. I don’t want to go that side.
Ms C says that she formed the view that the child had been sexually abused by the father. Although not a mandatory reporter under child protection legislation,[18] Ms C did not elect to contact the Department of Children, Youth Justice and Multicultural Affairs (“the Department”). When Ms C told the mother what the child had told her, she says the mother said she already knew about the child being hurt in the shower. Ms C says that she thinks she encouraged the mother to contact the police. In response to a question from Ms C about her three wishes, the child responded “having peace and him [her father] leaving me and Mum alone, more friends and more good grades at school”.
[18] Child Protection Act 1999 (Qld), s 13E.
In compliance with the mother’s request for a report to assist her court case, Ms C included in her report a recommendation that the child obtain protection from “further sexual victimisation from her father”; that the child continue to attend her new school; and that the child access psychological therapy to assist her to cope with “psychological symptoms related to ongoing family conflict and assisting her with better adjusting to the negative effects of recent traumatic and stressful events”.
Despite having formed the view that the child had been sexually abused by the father, Ms C, inexplicably, provided a separate report in relation to the mother in which she opined:
[The mother] has shown good insight into her and her daughter’s current stressors and fair judgment of what modifications need to be done to reduce the effects of the stressors. She stated being well aware of the ongoing conflict and poor relationship between [the child] and her father. [The mother] demonstrated her willingness to mitigate these issues by encouraging [the child] to continue seeing her father … She presented as a sensible and proactive individual and responsible parent willing to work on improvement of her communications with her daughter’s father to ensure workability of the shared care parenting arrangements for her daughter.
In circumstances where she says she thought the child had been sexually abused by the father, Ms C applauds the mother for encouraging the child to continue to see the father. One might have thought this alone would have been a reason for her to contact the Department raising concern about a child potentially at risk of sexual harm. Ms C should give serious consideration to her conduct in such matters in the future and I propose to request the ICL to bring the relevant parts of this judgment to her attention.
In relation to the child’s allegations of sexual abuse, it is important to note that when the child ran away from the father on 14 October 2020 she went to the police and made a complaint that the father had repeatedly punched her in the legs and scratched her. She made no complaint about sexually inappropriate conduct by the father. However, I do take into account the possibility that there may have been reasons for the child not disclosing sexual abuse other than that it did not occur. It is not uncommon for children to feel embarrassed, confused or even guilty about sexual acts done to them.
On the occasion when the child ran away from the father on 5 February 2021 a witness to the incident told police that the father grabbed the child by the arm in an attempt to stop her fleeing and placed his hand over her mouth in an attempt to stop her screaming. The father concedes that the child was screaming at him to get away from her and that he then chased the child 300 or 400 metres. He contends that she slipped and he grabbed her to see if she was alright. The father further concedes that “thugs” told him to let the child go and then threatened him using “very, very violent, filthy, disgusting language”. As a consequence, the father left.
Police records from the 5 February 2021 include the following information:
Police spoke [with the child] at her home address where she made the disclosure to police of digital rape. She stated that she was in the shower and her father came into the shower also. She stated that he then started poking her hard and it hurt. She then stated that she started to bleed, and he got out and left the shower. … The child victim’s mother was informed about the disclosure and she stated that the victim child had mentioned that the [father] had done something to her but whenever she tried to get more information the child would shut down and not speak further. Following this the victim child’s mother took her to a psychologist but has not been told further information. She was shocked when told that the victim child disclosed that she had bled as a result of the incident. …
There was no allegation by the child that the father “beat” her as alleged by the mother in her trial affidavit. The mother contends that the child was on crutches for weeks after the incident as a result. The mother provided a statement to police on 22 February 2021 in which she alleged that the child’s foot had been injured when loose bricks had fallen on her foot during the incident. This accords with what the child also told police on a later occasion.
The child attended upon her GP on 7 February 2021 where she described the incident on 5 February 2021. It is recorded in the medical records that the child was refusing to go to school and was suffering panic attacks. There is no mention of any injury to the child’s foot. It is not until 15 March 2021 that the medical records indicate that the child attended upon her GP with an injury to her left ankle and noted to be “in moon boot due to high grade strain”. A referral was made for the child to attend physiotherapy.
The child took part in a recorded video interview with police on 22 February 2021 where she initially alleged the sexual assault had occurred on the day that she had run away from the father on 14 October 2020. The child described having been in the shower at the father’s house at Suburb O when the father came in naked and asked to rub her back. The child said her father “stabbed” her with his fingers in her private parts causing her to bleed. She alleged that after she left the bathroom, the father was sitting in the lounge room naked and touching his private area and that she ran away from his house. She described catching a bus into the city and that she spoke to police. Later in the interview the child said that the incident occurred in December 2020.
The police investigation noted “significant inconsistencies in the victim child’s version which raise[d] concerns about the validity of the complaint and possible coaching of child witness”.
Some of the inconsistencies include the following:
(a)The child initially said the incident in the shower occurred on 14 October 2020 (i.e. the day she ran away from the father);
(b)Later the child said the incident occurred in December 2020 but the child had not spent any time with the father since 13 November 2020;
(c)The child said the incident occurred at the father’s Suburb O home and that she then ran away from this house. The father and child were not at the Suburb O home when she ran away but at the former matrimonial home at Suburb R where the father was undertaking some repairs. The child caught the number 100 bus which does not operate near the Suburb O home;
(d)The child said that it was night time when she ran away but police records for 14 October 2020 note that the bus driver contacted them at 5.00pm;
(e)The child insisted she had told the police about the sexual assault on 14 October 2020 but there is no record of such an allegation having been made;
(f)The child said she was made to sit in a room at the police station for five hours or more which is not supported by the police records; and
(g)The child had not previously alleged that she was bleeding in her conversations with Ms C.
Conclusion about risk of sexual harm
I do not find that the father represents an unacceptable risk of sexual harm to the child for the following reasons:
(a)Little weight can be placed on the historical allegations for the reasons identified at [86];
(b)The mother’s allegations that the father possessed child pornography is likely to be a recent fabrication;
(c)It is conceded on behalf of the mother that the 2017 allegation is not supportive of sexual abuse;
(d)The child’s allegations of sexual abuse are unreliable for the reasons identified in [123];
(e)The child’s allegations are made in the context of a long history of “enmeshment” in the parental conflict;
(f)The child has been persistently used by the mother to obtain evidence on audio and video recording. For example, in one recording the child said:
Papa is always very bad. I don’t want to live with him. My dad is bad. He pushed my mum. He hurt my mum. My papa didn’t feed me.
The recordings were described by a presiding magistrate in the domestic violence proceedings as “abusive”;
(g)The child is no doubt acutely aware of the mother’s poor opinion of the father. Some examples of the hundreds of text messages that the mother was found to have sent to the father during the domestic violence proceedings included the following:
(i)“Scumbag”, “big fat, shitty animal”, “old piece of shit”, “animal without a brain”, “fucking vampire”, “a wild beast, happy in your dirty smelly kennel”, “shitty father and husband”, “bastard”, “arsehole”; “scoundrel”;
(ii)“Remember, I will take revenge for wrongs caused to me”;
(iii)“You are on my blacklist. Fuck you, shit, Fuck you, goat. Kill you, bastard. You will cry tears of blood. Do not open your filthy dogs mouth. Shove your tongue inside your arse”;
(iv)“My hatred for you is so strong, it will be better if you die like a dog. I hate you. I hate you, piece of shit. I wish you would die today. If you say anything, I will pull your tongue and put it on the barbeque”;
(v)“I hate you with all my heart”;
(vi)“Scared coward? Go change your panties. You stink of shit. Shit, I will grind you into powder”;
(vii)“Bastard, I’m waiting for an apology from you now. Make it immediate, or I will call the police and destroy you”;
(viii)“I can kill you this time. You better be careful. I’m not joking”;
(h)The mother has made numerous threats to take revenge on the father;
(i)The mother has a history of using the child as leverage to obtain money from the father;
(j)The child has made allegations against the father that were not only false but that could only have come from the mother e.g. that the father had evicted them from their home. The child allegedly wrote messages of hate on the walls of the home she left in August 2020 e.g. “What kind of father can kick the child from house”; “From X. I hate you. No other father will do this to family”; “You pay one dollar for me”;
(k)There is no doubt that by at least the 14 October 2020 (if not long before) the child was closely aligned with the mother;
(l)The child’s allegations against the father have become more outlandish e.g. that he stabbed her with his fingers in her private parts and caused her to bleed;
(m)The father denies the allegations;
(n)Witnesses to the father and child interaction over many years, including the very impressive witness, Ms N, describe a previously loving relationship between the father and child with Ms N describing the father as “kind, caring and generous”; and
(o)There is no evidence that the father has a sexual interest in children (other than the historical allegations previously dealt with in these Reasons).
Sadly, the predictions made by the family report writers in these proceedings have proved correct. In order to survive, the child has fully aligned herself with the mother and rejected the father. The mother has weaponised the child in her dispute with the father.
DOES THE MOTHER HAVE THE CAPACITY/WILLINGNESS TO PROMOTE THE RELATIONSHIP BETWEEN THE CHILD AND THE FATHER?
There can be no doubt that the mother will not promote the child’s relationship with the father for reasons already discussed. The mother hates the father with a passion and has consistently exposed the child to her negative views of the father. Matters further deteriorated after the mother left the former matrimonial home on 23 August 2020.
HAS THE MOTHER INVOLVED THE CHILD IN THE DISPUTE BETWEEN THE PARENTS AND WHAT IMPACT, IF ANY, HAS THAT HAD ON THE CHILD?
There can be no doubt that the mother has involved the child in the parental dispute. The mother’s use of recordings of the child, primed to make allegations against the father, in previous court proceedings can only be described (and has been described by another judicial officer) as abusive. The impact on the child is likely to be profound.
During his submissions, counsel for the mother made the following concession:
The mother, of course, … has involved the child in the dispute and (sic) the most appalling way and I can’t make any stronger submission against my client’s conduct in that regard. The recording of this young girl in that rote sense where she is, clearly, about to say something with some degree of priming, is appalling …
…
It’s a flagrant misuse of the child …
Ms T opined in her family report dated 5 April 2018 that, “[t]he child has been exposed to psychological abuse by the mother by involving the child in her conflict with the father, but the mother has no insight that this constitutes an abuse to the child”, “[t]he child appears to have an enmeshed relationship with the mother” and that the mother demonstrates an “inability to detach from the child in an appropriate and emotionally healthy manner”.
In her report dated 26 November 2019 Ms T opined:
82. … The mother tends to see the child as an extension of herself, and lacks boundaries around what to share with the child. The mother appears to be prone to win/lose, polarised thinking, and requires that people demonstrate they are either for her, or against her. This extends to the child….
…
83. In my opinion the child has aligned herself with the mother, and “chosen a side” as a way of opting out of the conflict between her parents.…
…
85. … a child who is treading the tightrope of pleasing each parent in a high conflict situation. Each time she changes residence she has to essentially change her personality, let go of beliefs and attitudes, then re adopt certain positions to again fit into the other household. Quite apart from the immediate psychological impact on the child, in my opinion the stage is being set for the child to have to negotiate psychological challenges in the future.
Ms T’s observations are echoed by Ms D in her report dated 2 July 2021 where she noted that the mother described her relationship with the child as a friendship and said the child was an adult. Ms D opined that, “there is a high level of risk that … the alignment between [the mother] and [the child] is unhealthy, and emotionally abusive”.
One of the most appalling examples of the mother’s involvement of the child in her dispute with the father, relates to her resistance to leaving the former matrimonial home in 2020, despite having agreed to an order that she do so. The mother led the child to believe that she and the child were being evicted from the home. The state in which the mother left the home was absolutely appalling. Her attempts to deny her actions were totally unconvincing. The mother left used sanitary products around the house. She left prawn shells in cupboards. The house was left in a filthy state. Even worse than the vandalism caused by the mother was her likely encouragement of child to write vitriolic statements on the walls of the home, castigating the father for throwing them out of the house. I certainly do not believe the mother’s evidence that she only saw the writing on the walls after the event.
The child now presents as wilful and dismissive of persons in authority. Her behaviour towards police on 22 February 2021, to the family report writer and the ICL does not augur well. The child has shown a propensity to tell untruths without fear of contradiction from her mother e.g. that teachers at Q School ignored her requests for assistance and hit her in the head.
Ms N describes having observed a very wilful streak in the child without regard for risks to her personal safety e.g. the child at least twice climbed onto the roof of Ms N’s home and had to be coaxed down. The child also ran away from the father on 14 October 2020 catching a bus into the city and ran away from both parents in a car park at a changeover that was recorded by the mother on a date the mother cannot recall.
In my view, the impact on the child being involved in her parents’ dispute is likely to have long term impacts on her psychological functioning including on her ability to make and sustain personal relationships, her ability to trust others and to respect authority.
WILL THE MOTHER COMPLY WITH COURT ORDERS AND ENSURE THAT THE CHILD SPEND TIME WITH THE FATHER, IF ORDERED?
It is highly unlikely that the mother will comply with a court order for the child to spend time with the father. The mother has a long history of non-compliance with court orders.
The mother has repeatedly breached earlier ‘spend time with’ orders. She has breached domestic violence protection orders. The mother did not comply with the order to re-enrol the child at Q School. The mother breached the order that she vacate the former matrimonial home and breached the order restraining her from denigrating the father on social media.
CAN THE CHILD HAVE A RELATIONSHIP WITH BOTH PARENTS IF SHE CONTINUES TO LIVE WITH THE MOTHER?
Unfortunately, if the child remains living with the mother, there is very little likelihood that she will have a relationship with the father in the foreseeable future. Although the child has repeatedly rejected the father and expressed a wish not to see him, Ms D in her report dated 2 July 2021 opined that while the child “sees herself as sufficiently mature to make decisions about the time she spends with her parents, her behaviour suggests she is not”.
There is perhaps a glimmer of hope that after these proceedings have concluded the child may feel that some pressure has been removed and she may agree to see the father if he attends at her school, as he has done in the past.
IF THE CHILD REMAINS IN THE PRIMARY CARE OF THE MOTHER, SHOULD SHE BE ABLE TO TRAVEL TO COUNTRY E WITH THE MOTHER ON HOLIDAY?
At the conclusion of the trial all parties agreed that the mother should be restrained from travelling to Country E with the child until after she turns 16.[19] In those circumstances, I see no reason for the child to have a passport before that time. The mother did not address the issue of the passport or raise any prospect of overseas travel other than to Country E.
[19] Counsel for the mother, when addressing on this issue referred to “paragraph 6” and was there referring to issue 6.
DO THE PARENTS HAVE THE CAPACITY TO MAKE JOINT PARENTING DECISIONS?
While most of the focus of these Reasons have been on the mother, there is no doubt that the father hates the mother as much as she hates him. His complete contempt for the mother was palpable during his oral evidence. I do not suggest that he does not have good reason for feeling this way, but the consequence of their mutual enmity is that no parenting decisions could be made jointly.
WHAT PARENTING ORDER IS PROPER?
Despite the father not presenting an unacceptable risk of harm to the child, she refuses to see him and has taken rather extraordinary steps to demonstrate her resistance, thereby placing herself at risk.
The process of the mother’s alienation of the child from the father has unfortunately succeeded, to the point where the father’s most recent attempt to speak to the child led to her running hundreds of metres away from him and thereby endangering herself. Third party witnesses and police became involved and the whole incident was no doubt traumatic for the child. One can only imagine the pressure the child is under. She has completely aligned herself with the mother.
The mother has no insight into the damage she has caused the child. The child has an enmeshed relationship with her mother and is totally invested in the dispute. I have no doubt the child will suffer long term emotional and psychological damage as a result of her involvement in the parental dispute. The mother’s conduct, in particular, is indefensible and among the worst I have seen in my forty years of involvement in family law.
Despite my findings in relation to the mother, the father is not without fault. Ms T opined in her report dated 5 April 2018 that, “[t]he child has been actively involved, by the parents, in the conflict between them” (emphasis added). I agree.
Unfortunately, despite it being pointed out to the father in Ms T’s report dated 5 April 2018, that his attempts to defend himself against the child’s repetition of the mother’s allegations were themselves abusive, he has not tempered his reactive responses to the child. In her report Ms T opined:
108. The father … appears to get caught up in defending himself to the child against the mother’s allegations. In telephone calls to the child recorded by the father on 31 December 2017 and the 9 January 2018, the father argued with the child and appeared to get increasingly agitated and talked at length, calling the mother bad, that the mother says untrue things and lies, that the mother makes trouble and makes problems, and that "mama is a bad woman". The child says little other than trying to defend the mother and telling the father to stop talking.
…
113. The father appears to have little insight into the fact that the phone calls were harassing and haranguing to the child, and that the child was being held responsible for lying, when she was repeating what the mother told her. The child is placed in an impossible situation defending the mother and pleasing her, especially as she believes the things her mother is telling her, and also defending herself against the father’s accusations that she is lying.
114. The father accuses the mother of traumatising the child by lying to her, but appears to not realise that the phone calls themselves were traumatising to the child. Both parents put the child in the middle of the conflict in these phone calls. The father lacks the ability to properly engage with the child in relation to the allegations the mother makes against him. In interview the father presented as reactive and incensed at the mother's allegations against him, and blamed the mother for the ongoing conflict. The father would benefit from counselling to assist him in how to communicate with the child in relation to false allegations and false memories that the child may hold against him, and to help him understand the child's perspective in the conflict, and the impact of arguing with the child, and denigrating the mother to the child.
The father really shows no sign of changing. A more recent example of his continued lack of insight is demonstrated by the comments he made to the child on 14 October 2020 (the day the child ran away) that he was at the Suburb R house to “clean up the filth that your mother left behind”. A further example is found in the recording made by the mother sometime between September 2019 and August 2020 (Exhibit 5). I am conscious that the father did not know he was being recorded, but his reactive and accusatory statements to the child resulted in her becoming very upset with the father and starting to defend the mother. Such exchanges were the very thing pointed out by Ms T as problematic. During the father’s oral evidence he referred to statements he had made to the child to the effect that the mother was a liar and was bad. There did not seem to be any recognition by the father that such comments place the child in an invidious position and add to the pressure she is already enduring.
Ms T described the child, during the 2019 interview as “tense, on high alert, and gave the impression of picking through a minefield when speaking”. Further, Ms T refers to the child stating that she “hates being like a dog pulled backwards and forwards”. Ms T again counselled both parents against challenging the child “about statements she makes, which may not reflect the facts. Challenging her only causes her further anxiety and psychological distress”. Ms T’s advice appears to have fallen on deaf ears.
A further example of the parents’ mutual disregard for the child’s welfare can be seen in the video recording taken by the mother of a failed changeover in a car park where the child ran away (Exhibit 6). The mother did not accompany the child to a safe place to make the transition to the father. She was too busy filming. The father just sat in the car while the child walked across a car park to his car. She stood at his door while the mother filmed and he made no attempt to get out of the car, even when the child fled from both parents. The child could have been knocked by a car. On this occasion both parents put the child at risk.
I also have a real concern about the father’s judgment more generally. On 16 October 2020 he said to a school teacher at the child’s school that he did not know what to do about the mother apart from killing her. During his evidence the father said that he was only joking, but clearly the person to whom he made the statement did not regard the comment as a joke. A complaint was made to police. In this emotionally charged conflict it is difficult to understand the father’s complete lack of insight as to the impact of making such a comment at the child’s school.
Despite Ms D being concerned about the emotionally abusive nature of the mother’s relationship with the child she opined:
155. However, given the damage to her relationship with her father, I am unsure of how well she would cope if she were removed from her mother's care entirely. As [the mother] has always been [the child’s] main carer and their attachment is undeniably strong, I believe [the child] would experience her removal from her mother's care as traumatic and the loss of her time with her mother, even if temporary, as a loss of emotional support. I am also unsure of [the father’s] ability to re-establish his relationship with X in the face of the potential hostility and reticence he would likely encounter from her. …
Ms T in her report dated 26 November 2019 also expressed considerable reservation about a change in residence opining that a change in residence “would place additional pressure on [the child] as she could be further exposed to conflict, emotional manipulation and possible reprisals by the mother to the father involving the child”.
Despite concerns expressed by the family report writers about the nature of the mother’s relationship with the child, it has been assessed that the child and mother have “an obvious close bond”, “a close relationship” and “appeared to have an extremely close relationship”.
It is not as if the father has not had ample time to build up a secure relationship with the child. For about the first year after separation he spent most weekends with her and the time he spent with the child increased such that prior to all time stopping in November 2020 he was spending five nights per fortnight with the child. Despite the child generally taking time to settle in his household, I accept that the time the child spent with the father was generally successful. The same was observed by Ms T in 2018 and 2019 during the family report interviews i.e. the child was initially resistant but eventually relaxed to a significant degree. The father/child relationship was nevertheless unable to withstand the concerted efforts made by the mother to destroy it and I have no doubt that the father’s own conduct contributed.
As Ms T explained in her report dated 5 April 2018:
122. By aligning with the mother, the child may be trying to avoid the emotional toll of being involved in the middle of the parent's conflict. By choosing a "side" and rejecting the other parent, the child may be trying to avoid the anxiety created by being exposed to this conflict.
Ms T’s opinion is strengthened by the child’s own comments to Ms C in December 2020 that she just wanted “peace”.
By June 2021 Ms D opined that the child appeared to be “entrenched in her alignment with her mother”.
Despite the child’s alignment with the mother and the emotional damage that has likely be caused to the child by the mother, I see no practical means by which a change in residence to live with the father could be given effect. I accept that the father would do whatever it takes, but in his view that would likely involve monitoring the child 24 hours a day and home schooling her. The father frankly acknowledges that if an order were made for the child to live with him, she would run away and that police would need to bring her back. He expects that the child would likely run away more than once. As already noted the child is already quite wilful and a risk taker.
Despite the combined experience and wisdom of Ms D and Dr B they could not offer a practical means by which the transition to the father might be effected and in particular to ensure the child did not run away. This is not a case where I could be hopeful let alone confident that once the child was in the father’s care, she would remain there. I cannot put in place an outcome doomed to fail and in the process put the child at potential risk of harm from strangers when she inevitably runs away from the father.
Due to my concerns for the child continuing to live with the mother, I have given serious consideration to removing the child from the mother and placing her with Ms N at least until the father and child can rebuild their relationship. However, despite the father’s counsel’s persuasive arguments, I have come to the conclusion that removal of the child is not a course I am prepared to force on the child. The child will actively oppose removal and it will no doubt be traumatic for her. The practicality of the removal would remain problematic and likely involve police. While Ms N was a most impressive witness, she has her hands full caring for two young boys with special needs. Further, the child has not had any contact with Ms N for over a year. I simply do not know what the child’s relationship with Ms N is currently and further adjourning the proceedings is not likely to be in the child’s best interests and is not supported by either parent.
I simply cannot in good conscience expose the child to the level of trauma and risk that I know an order removing her from her mother will cause.
The mother should nevertheless take heed of the warning given by Ms D:
149.…Finally, it is certainly not unusual for children who have been closely aligned to one parent and hostile towards the other, to come to resent the influence of the parent who allowed or encouraged this to happen, and in my view it is entirely possible that this could damage [the child’s] relationship with her mother in the future.
I understand that the father may well feel most aggrieved by this decision. However, my focus must always be on the best interests of the child in the particular circumstances of the case. While the mother’s conduct in ‘weaponising’ the child against the father is some of the worst I have witnessed, I have no confidence that the father has the necessary parenting qualities to focus on the child rather than trying to convince the child that the mother is in the wrong. The father has not taken the opportunity to properly address these challenges despite it being recommended he do so in the first family report.
I am nevertheless hopeful that once the child realises that she is not going to be removed from her mother’s care, she may agree to see the father. While I place little faith in the mother’s evidence that she would facilitate the child seeing the father in a public place, I hope, for the child’s sake, that the mother is true to her word.
In relation to parental responsibility, the father sought an order for sole parental responsibility in his favour and surprisingly, (no doubt disingenuously) the mother sought an order for equal shared parental responsibility. The ICL recommended that the mother have sole parental responsibility. Parental responsibility in relation to a child means all the duties, powers, responsibilities and authority which parents have in relation to their child and each parent has parental responsibility subject to any order of a court. Currently, decisions about major long term issues affecting the child e.g. education, religious and cultural upbringing, health, name, living arrangements that make it significantly more difficult for a child to spent time with a parent, can be made by each parent individually and historically the mother has largely made those decisions. It is often the case in parenting proceedings that an order is made for the parents to have equal shared parental responsibility which requires such decisions to be made jointly. Given the history of family violence in this case the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility does not apply. In any event given the contempt each party holds for the other I do not consider an order for equal shared parental responsibility to be in the child’s best interests. However, I consider it important for the father to remain, at least formally, as a parent who can make parenting decisions for the child. While it may, in a practical sense, only be symbolic, in my view it is an important symbol for a child who has had to choose between her parents.
The ICL sought an order restraining the mother from changing the child’s name and in circumstances of such high enmity I propose to accede to that request. I consider it important for the child to maintain at least a connection by name to her father. No submissions were made on behalf of the mother in opposition to such an order.
Various mutual restraints are sought by the parents, and the ICL, to restrain the parents from exposing the child to denigration of the other parent and while it might well be argued that such orders would be futile given the history, I nevertheless propose to so order. I consider it important for the Court to make it abundantly clear that it disapproves of the past conduct of the parents and an order as sought should at the very least remind them of their obligations in this regard. They will be expected to comply with the order.
The mother has a long history of involving the child in the dispute by recording her and she will be restrained by injunction from continuing to do so. The mother should realise that any breach of the order in future may result in her being fined or even imprisoned.
Court material, other than the final parenting order, should remain confidential. The mother should refrain from further involving the child’s school in the dispute and accordingly the mother will be restrained from providing any of the court material or documents disclosed in the proceedings to the child’s school. The mother is reminded that it is an offence punishable by imprisonment for a period not exceeding one year, to disseminate to the public or any section of the public any account of any proceedings or any part of any proceedings that identifies a party to the proceedings, a person who is related to or associated with a party to the proceedings or is in any other way concerned in the matter to which the proceedings relate or a witness in the proceedings.
The order proposed by the ICL in relation to the child spending time with the father, or communicating with him, is directed to the child i.e. that the child spend time and communicate with the father as determined by the child. I do not intend to make that order. The child is of course free to contact her father if she chooses to do so at some future time and, for her sake, I hope she does so. As it seems the father has in the past been permitted by the child’s school see the child at school on occasion, I see no reason why that should not occur in the future if the school permits it.
The father will be permitted by the order I propose to make, to obtain information about the child from the child’s school and medical practitioners.
MISCELLANEOUS
On the last day of trial the ICL applied for an adjournment of the trial as a consequence of the father having been granted leave to amend the final order sought by him to include an order, in the alternative, that the child live with a stranger to the marriage and witness in his case, Ms N.
I did not accede to the ICL’s request to adjourn the proceedings on the last day of trial and indicated I would provide reasons at a later time. My reasons are as follows:
(a)Neither parent supported the adjournment;
(b)The deficiencies in the evidence in relation to Ms N as the primary carer for the child could be addressed in submissions and would not necessarily be overcome by an adjournment during which the ICL proposed an update family report;
(c)The child had previously refused to participate in the interviews for the family report;
(d)If the matter were adjourned as sought by the ICL the trial would not be able to resume until February 2022; and
(e)The parties and the ICL agreed that further delay would not be in the child’s best interests.
I certify that the preceding one hundred and seventy-three (173) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 27 August 2021
0
9
3