GRANDHOUSE & GRANDHOUSE
[2010] FamCA 921
•16 September 2010
FAMILY COURT OF AUSTRALIA
| GRANDHOUSE & GRANDHOUSE | [2010] FamCA 921 |
| FAMILY LAW – CHILDREN – ability of each parent to facilitate a relationship between the child and other parent – allegations of violence – allegations of abuse between the mother and the father’s extended family – communication between the parents – parenting capacity – work commitments of each parent which require time away from home – child’s special needs |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Grandhouse |
| RESPONDENT: | Ms Grandhouse |
| INDEPENDENT CHILDREN’S LAWYER: | Adams & Associates |
| FILE NUMBER: | NCC | 1096 | of | 2007 |
| DATE DELIVERED: | 16 September 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Newcastle, Parramatta & Sydney |
| JUDGMENT OF: | Justice Le Poer Trench |
| HEARING DATES: | 1,2,3 & 4 December 2008 12 December 2008 4,5 & 6 May 2010 1 June 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Hamilton |
| SOLICITOR FOR THE APPLICANT: | Thomas Mitchell Solicitors |
| COUNSEL FOR THE RESPONDENT: | Ms Gibbons (Some of the hearing days) Direct Brief. |
| SOLICITOR FOR THE RESPONDENT: | Mother in person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Burns |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Adams & Associates Solicitors |
Orders
All previous parenting orders relating to J born … November 2005 (“the child”) are hereby discharged.
The father is to have sole parental responsibility for the child. At any time when the father is required to make a decision which affects an aspect of the child’s long term welfare, such as determining which school he might attend, he is to contact the mother in writing (including by email if that be available) and set out his proposal. He is to invite the mother to respond, in a timely manner, setting out her views about the proposal and offering any alternate proposal. The father is to take the mother’s views and counter proposal into consideration when making a decision on the matter.
The child is to live with the father.
From the date of these orders until the child commences Kindergarten, and unless otherwise agreed between the parents, the child shall spend time with the mother as follows:
4.1Each week at Relationships Australia Supervision Centre or other centre as agreed by the parents, for a minimum of 2 hours, or as directed and as available at that Centre.
Upon the child commencing to attend Kindergarten, he shall spend time with the mother on not less than one occasion each fortnight, supervised, at the Rainbows Supervision Centre unless otherwise agreed between the parents.
The mother is to notify the father by text message or email no less than 48 hours prior to any scheduled supervised time with the child, of her intention to attend that supervised contact. If the father has not received such confirmation from the mother then he is excused from delivering the child to the contact centre for that occasion of time with the mother.
Should the mother fail to attend such supervised time on 3 occasions (not necessarily consecutive), in circumstances where she has given the father prior notice of her intention to attend and then fails to do so, then the mother’s time with the child shall stand suspended until further agreement between the parties or further order of the Court.
To facilitate the time the child spends with the mother pursuant to Order 4 and Order 5 herein, the mother and father shall do all acts and things required to allow such time to occur, and shall comply with all directions of the staff of the Centre.
On the occasion of the child’s birthday and Christmas Day, the mother shall have telephone communication with him from 6pm until 6.30pm, unless otherwise agreed in writing.
To facilitate Order 9 herein, the father shall ensure the child is available to have such communication, and shall place the call or assist him to place the call to the mother.
The mother is to have telephone and/or Skype time with the child on not less than two occasions each week at times and on days agreed between the parents. The mother is to initiate the calls at the agreed times.
Should the father not be available to care for the child due to work commitments, or otherwise, the father shall ensure the child is cared for by the paternal grandmother, should she be available, or if she is not available then another responsible adult.
The mother and father shall each use their best endeavours to behave in a civil and courteous manner towards each other and each other’s family.
The mother and father are hereby restrained from denigrating the other parent, or any family member, within the presence or hearing of the child, and shall use their best endeavours to prevent any other person from so doing.
The father shall notify the mother of any change to the child’s residential address and/or landline and mobile telephone number, within 7 days of any change thereto.
The appointment of the Independent Children's Lawyer is extended for a period of 12 months from the date of these orders.
NOTATION
(A)It is recommended that the mother consult with a psychologist of her choice for the purpose of undertaking a course of therapy which will give her insight into the impact upon the child of her actions in having him investigated for physical and sexual abuse. Further the therapy should address providing the mother with strategies to deal with any adverse statements which the child might make to the mother relative to the father or his family.
(B)It is recommended that the father have the child assessed for any special educational or psychological needs he may have and if appropriate arrange for suitable therapies.
The mother may seek a variation of the orders, so far as they relate to the time and circumstances in which she sees the child, at the conclusion of a course of therapy which addresses the matters referred to in notation (1) and which has been conducted for a period of not less than 12 months at frequency of therapy sessions set by the therapist. A further condition is that the therapist is able to provide to the mother, for production to the Court, with a report which may satisfy the Court that the child would not be at risk of the type of behaviour which led to the orders being made herein for the reasons set out in the judgment provided. The therapist providing such report is to have first been provided, by the mother, with a copy of these orders, a copy of the judgment of the Court and a copy of the report provided by Dr RN, the Court expert.
Pursuant to s65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders 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 these orders.
I note that the proceedings are now concluded in this Court.
All Outstanding Applications are dismissed and the proceedings are removed from the List of Matters awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Grandhouse & Grandhouse is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: NCC 1096 of 2007
| MR GRANDHOUSE |
Applicant
And
| MS GRANDHOUSE |
Respondent
And
| INDEPENDENT CHILDREN’S LAWYER |
REASONS FOR JUDGMENT
Introduction
The proceedings before the Court are proceedings between the parents of the only child of the marriage, J, born in November 2005, and currently aged 4 years, in which parenting orders are sought. The mother has a child from a previous marriage, C, born in September 1994, (currently 15), who resides in Perth with her father. The mother spends time with C as arranged with her father.
This matter was before me for final hearing at the Newcastle Registry of the Family Court of Australia between 1 December 2008 and 4 December 2008. On the final day of the hearing in Newcastle the proceedings were adjourned for further hearing at the Parramatta Registry on 12 December 2008, including for determination as to whether there should be a Chapter 15 Single Expert psychiatric report. Dr RN was appointed to prepare a report. The hearing continued on 10 and 11 December 2009. On that latter date it was ordered that the mother and father provide written submissions addressing specified headings as set out in the orders.
The abovementioned written submissions were to be filed by close of business on 1 February 2010, with the mother, the father and Independent Children’s Lawyer to provide any reply by 22 February 2010. The father’s written submissions were provided to my Associate by email on 2 February 2010. The Independent Children’s Lawyer provided a “Minute of Order Sought by ICL” on 29 January 2010. As a result of the mother obtaining new Counsel following the hearing of the matter, an extension of time for the filing of written submissions was requested by her, and granted until close of business on 1 March 2010, with any reply to be provided by close of business 22 March 2010.
On or about 27 February 2010 the father made application to re-open the hearing which had concluded on 11 December 2009. That application was granted on 11 March 2010 and subsequently the hearing proceeded on 4, 5, and 6 May and 1 June 2010. Judgment was then reserved. The collation of the evidence and the consideration of the very extensive written submissions of the parties has taken longer than expected and thus this decision has been somewhat delayed.
Background Facts
Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
A Chronology of Events was prepared by the Independent Children’s Lawyer, and also by the father. I have added to those chronologies as I prepared these reasons. I accept the facts are not controversial.
In 1970 the mother, Ms Grandhouse (“the mother”), was born and is currently 39 years of age.
In 1972 the father, Mr Grandhouse (“the father”), was born and is currently 37 years of age.
In 1980 the father and his family relocated to Australia.
In 1993 the mother underwent brain surgery.
In September 1994 the mother’s child, C, was born as a result of a previous marriage. She is currently 15 years of age. She lives with her father, Mr W, in Perth and spends time with the mother.
In 2000 the mother alleged she had been drugged whilst employed by K Company.
In July 2001 the mother alleged she had been drugged whilst attending a training course.
On 3 August 2001 the mother and Mr W separated. The child C commenced to reside in an equal time arrangement between her parents. When the mother moved to Eastern Australia C lived with her father.
In September 2002 the mother alleged she had been sexually assaulted by an S Company employee member in a taxi.
On 18 October 2002 the mother alleged she had been drugged and sexually assaulted by an S Company employee in Y.
In November 2002 the mother and father met whilst overseas and commenced a relationship.
In February 2003 the parties commenced living together in Perth, in a de facto relationship.
In early 2003 the mother alleged the father had assaulted her at or near their residence in Perth. The allegation is disputed by the father.
In about mid 2003 the mother alleged the father had assaulted her in or near a hotel at Melbourne airport. The parties had attended a wedding.
In 2004 the parties were married.
In January 2005 the mother alleged she had been assaulted by the father in their residence in Perth. The Western Australian Police attended. The father disputes the mother’s allegations.
In April 2005 the mother alleged the father assaulted her at the mother’s brother’s home in Western Australia. The father disputes this allegation.
In mid 2005 the parties relocated to Sydney.
Some time during 2005 the mother alleged she was assaulted by the father in a hotel in Canada. She alleges a bathroom door was damaged. The father has a different version of fact including that he had to break the door in order to access the bathroom where the mother was threatening suicide. The mother denies that allegation.
In June 2005 a dispute emerged between the mother and Mr W in relation to C. The mother made an allegation of sexual impropriety by Mr W against C. The mother filed in the Western Australia Family Court a Notice of Abuse alleging Mr W had sexually abused C.
On 17 June 2005 orders were made for C to live with her father. It appears the order was a consent order.
In October 2005 there was an altercation between the mother and father at a Sydney train station. The mother alleged she had been assaulted by the father. An Apprehended Violence Order (“AVO”) was issued against the father. Notwithstanding that AVO the father returned to the parties’ residence the next day and they continued their relationship.
In November 2005 the child, J, was born (“the child”) and is currently aged 4 years and 3 months.
In early 2006 the mother alleges the father assaulted her while the parties were visiting friends in Newcastle. The father alleges he was assaulted on that occasion. The parties each dispute the facts alleged by the other.
In February or March 2006 the mother returned to work following the child’s birth, and the parties employed a live-in nanny to care for the child while the parties were at work.
In about January 2007 the father was charged with an assault on the mother at Sydney station in October 2005. He was convicted of the offence in the Local Court in December 2007. He appealed. In the District Court the appeal was dismissed and an order was made under section 10 of the Crime (Sentencing Procedure) Act 1999(NSW). No conviction was entered against the father. It is clear however that the trial judge was satisfied, on the criminal standard, that the father had assaulted the mother.
In August 2006 the mother alleges the father assaulted her at X. The father disputes that.
On 2 September 2006 the parties separated and an incident occurred at Sydney Airport. The father obtained an Apprehend Violence Telephone Interim Order. The father was then taken by the Police to H Hospital for examination and the mother was later arrested and charged with assault and malicious damage.
On 5 September 2006 the mother attended H Local Court and pleaded not guilty to assault and pleaded guilty to malicious damage.
On 7 September 2006 the mother caused the father, the child and the father’s grandmother to be offloaded from a Qantas flight because she alleged he had documents of hers. The father did not have the documents.
On 11 October 2006 an AVO was made, against the mother, for a period of 12 months in Sutherland Local Court for the protection of the child and father. The parties thereafter commenced to share the care of the child on a week about basis. Some aspects of the amount of time the child spent with each parent are disputed by the mother.
In October 2006 the father took up residence at his current address on the Central Coast. His cousin RA was engaged as a nanny for the child.
On 24 October 2006 the mother alleged the father had assaulted her during a visit.
In November 2006 the mother moved out of the former matrimonial home and commenced residing in a unit at H.
On 29 November 2006 the mother attended Sutherland Local Court in relation to the assault charges.
On 1 December 2006 the father attended the S Company building to collect the child. The mother did not return the child. He was returned to the father on 5 December 2006.
On 20 December 2006 the father filed an Application seeking Interim and Final Orders, and also filed an Affidavit and Information Sheet in the Federal Magistrates Court at Newcastle.
In January 2007 the mother agitated Police to charge the father with assault arising out of the October 2005 incident. The father was then charged.
In January 2007 the mother was convicted of driving under the influence of alcohol.
On about 13 January 2007 the mother removed the child from the play centre on the Central Coast with the aid of another person, against the father’s wishes. The mother took the child to Perth that day. The father filed an urgent application in the Federal Magistrates Court.
On 19 January 2007 orders were made in the Federal Magistrate’s Court at Newcastle restraining the removal of the child from Australia.
On 25 January 2007 orders were made in the Federal Magistrate’s Court at Newcastle in relation to the time the child was to spend with each party between 3 February 2007 and 23 February 2007 (4 days each) with changeovers to take place at a McDonalds restaurant in Sydney, that each party restrain from denigrating the other in the presence of the child, and that the parties attend a Child Dispute Conference on 29 January 2008. On that occasion an Independent Children’s Lawyer was appointed and the matter was otherwise adjourned to 23 February 2007.
On 29 January 2007 the parties were ordered to attend a Child Dispute Conference. The father attended in person and the mother attended by telephone.
On 14 February 2007 the mother appeared at the Local Court in relation to a charge of assault on the father. She had pleaded not guilty and she was acquitted.
On 23 February 2007 orders were made in the Federal Magistrates Court at Newcastle ordering that the child live with the parties on a 4 day rotation. The father was restrained from accessing the mother’s S Company roster and staff files. It was ordered that the proceedings be transferred to the Family Court in Newcastle. Changeovers to occur at the McDonalds restaurant in Sydney.
In March 2007 the mother began residing in a 2 bedroom unit at E in Sydney’s south.
On 7 September 2007 orders were made in the Newcastle registry of the Family Court of Australia that pending further order the child live with the father when the father is not attending to his employment and with the mother, when the father is attending to his employment, subject changeovers occurring between 8.00am and 6.00pm. The father was to provide the mother by email copies of his roster; periods of when he will not be attending his employment, once known to him, and of times he proposes to collect and return the child. It was ordered that all changeovers were to occur at the cafe area on level 2 of the S Company Building, and that both parties attend and complete a Parenting After Separation course and an anger management course.
On 14 September 2007 further orders were made by consent in the Newcastle Registry of the Family Court of Australia that the father be permitted to take the child to New Zealand temporarily.
On 6 December 2007 the father was convicted of assault on the mother and was fined $1,000 and sentenced to a 12 month Good Behaviour Bond. The father appealed the conviction.
On 14 January 2008 orders were made by consent in the Newcastle Registry of the Family Court of Australia that orders made 7 September 2007 be discharged and that all changeovers occur in front of the service counter at McDonalds Restaurant and that the father’s Application in a Case filed 14 January 2007 is withdrawn and dismissed.
In January 2008 the mother complained to the Department of Community Services that the child was at risk of harm in his fathers’ care.
On 6 May 2008 a Family Report was released.
On 7 July 2008 the parties divorce became absolute.
On 25 September 2008 orders were made in the Newcastle Registry of the Family Court of Australia that the matter be listed for a 4 day defended hearing on 1, 2, 3 and 4 December 2008 before Justice Le Poer Trench.
7 October 2008 the child was injured when he fell from his trike whilst in the care of the father. This fact is disputed by the mother. The mother did not return the child to his father and kept him with her for 22 days. The mother took the child to live with her in a refuge.
On 23 October 2008 the mother obtained an interim AVO against the father for the protection of the child.
On 7 November 2008 consent orders in relation to the parties’ property were made.
On 12 December 2008 Dr RN was appointed to prepare a report for the Court.
In March/April 2009 the mother commences to reside at P in Sydney’s north shore area.
On 7 July 2009 the child saw Dr EN. This appointment made by the mother without reference to the father and contrary to a Court order. The father says the first he knew of the appointment was when a staff member of Dr EN rang to ask for a referral letter. This fact is disputed by the mother.
On 18 October 2009 the child was delivered to the mother by the father upon return from a holiday in New Zealand.
On 23 October 2009 the mother took the child on a holiday to Perth.
On 27 October 2009 the child was presented for examination at the Perth Children’s Hospital.
On 11 December 2009 the mother filed in Court an Application in a Case seeking that she be granted leave to call further evidence and to rely on the affidavit of Mr D sworn 11 December 2009. Mr D is the mother’s partner and with whom the mother resides.
On 11 December 2009 I made directions for both the mother and father to file written submissions by 1 February 2010. The father lodged his submissions on 2 February 2010. The mother sought and was granted extensions for filing. Her final version was provided on 3 May 2010. The mother’s submission contains reference to evidence given in the trial and also reference to facts/material not placed in evidence before the Court. To the extent that the submissions contain evidence not given in affidavit form, oral form or through the tender of documents I have given it no weight.
The Issues
An “Agreed List of Documents” was provided by the parties. In addition, prior to the commencement of the hearing a “List of Issues” was formulated by the Independent Children’s Lawyer, dated 28 November 2008, as set out hereunder:
(a)The ability of each parent to facilitate a relationship between the child and the other parent;
(b)The allegations of violence and other abuse by each party against the other;
(c)The parents’ relationship;
(d)Communication between the parents;
(e)The parenting capacity of each parent;
(f)Parental responsibility issue;
(g)Where the parents will reside;
(h)The practical difficulties and expense of the child maintaining a relationship with both parents;
(i)The work commitments of each parent and availability for [the child];
(j)[The child’s] special needs;
(k)[The child’s] relationship with each parent and significant other; and
(l)The attitude of each parent to the responsibilities of parenting.
On 11 December 2009 the mother and father were ordered to file written submissions addressing the following headings, and where the submissions referred to evidence, a reference to where that evidence could be found was to be provided:
(a)The credit of the witnesses;
(b)Capacity of each parent;
(c)The willingness to facilitate a relationship for the child with the other parent;
(d)The attitude to the child and responsibilities of parenthood;
(e)The advantages and disadvantages of each parent’s proposals;
(f)Unacceptable risk to the child of being parented by either of the parents; and
(g)Allegations of violence between the parties.
The issues of fact
As the case developed in the hearing before me I thought the following issues of fact required determination in an endeavour to ascertain the best interests of the child:
(a)Does the mother believe the child has been sexually assaulted by the father?
(b)Does the mother believe the child was physically assaulted by the father in 2008 when the father had told her the child had fallen from a tricycle?
(c)What is the probability of the mother changing her mind about the father being a physical and sexual abuser of the child?
(d)Did the mother send the text messages to the father in early 2010 as he has alleged?
(e)Did the father demand sexual favours from the mother in exchange for him allowing her to spend time with the child?
(f)Was the father physically violent to the mother? and
(g)Was the mother physically violent to the father?
Application and response
An Amended Application was filed by the father in the Federal Magistrates Court of Australia on 19 January 2007. A subsequent document titled “Minute of Orders Sought by the Father” was later prepared and is dated 25 November 2008. A further document, “Minute of Order Sought by Applicant Father” was prepared on behalf of the father as part of his written submissions.
When the hearing resumed in May 2010 the father supported the orders sought by the Independent Children's Lawyer. Those orders provided for the child to live with the father, for the father to have sole parental responsibility and the mother to have supervised time with the child. I have set out the orders sought by the Independent Children's Lawyer below.
The Independent Children’s Lawyer provided a “Minute of Order Sought” on 29 January 2010, and which was dated 11 December 2009. In June 2010 the Independent Children's Lawyer presented another minute of order which she moved on. That submitted the following orders be made.
Minute of Order Sought by ICL –Exhibit ICL 18
Dated 1 June 2010
1.That all previous orders are hereby discharged.
2.That the father shall have sole parental responsibility for the child [J] (born […]/11/2005) (“the child”).
3.That the child shall live with the father.
4.That from the date of these orders until the child commences Kindergarten, unless otherwise agreed, the child shall spend time with the mother as follows:
1.Each week at […] Relationships Australia Supervision Centre or other centre as agreed by the parties, for a minimum of 2 hours, or as directed and as available at that Centre.
5.That once the child commences Kindergarten, the child shall spend time with the mother each fortnight, supervised, at the […] Rainbows Supervision Centre unless otherwise agreed.
6.That the mother shall notify the father by text message or email no less than 48 hours prior to such time with the child, of her intention to attend supervised contact.
7.That should the mother fail to attend such supervised time on 3 occasions without reasonable explanation or fail to notify the father of her intention to attend on 3 occasions, the mother shall spend no time with the child.
8.To facilitate the time the child spends with the mother pursuant to Order 4 and Order 5 herein, the mother and father shall do all acts and things required to allow such time to occur, and shall comply with all directions of the staff of the Centre.
9.On the occasion of the child’s birthday and Christmas Day, the mother shall have telephone communication with the child from 6pm until 6.30pm, unless otherwise agreed in writing.
10.To facilitate Order 9 herein, the father shall ensure the child is available to have such communication, and shall place the call or assist the child to place the call to the mother.
11.That should the father not be available to care for the child due to work commitments the father shall ensure the child be cared for by the paternal grandmother.
12.That the mother and father shall each use their best endeavours to behave in a civil and Courteous manner towards each other and each party’s family.
13.That the mother and father are hereby restrained from denigrating the other parent or any family member within the presence or hearing of the child, and shall use their best endeavours to prevent any other person from so doing within the hearing or presence of the child.
14.That the father shall notify the mother of any change to the child’s residential address and/or landline and mobile telephone number, within 7 days of any change thereto.
NOTATION:
A.That should the mother wish to provide psychiatric evidence following not less than 12 months of regular psychiatric or psychological Counselling and therapy, of her resiling from her belief in her allegations of physical and sexual abuse of the child by the father, it is the intention of the Independent Children's Lawyer at this time to support the child having more extensive time with his mother.
On 7 November 2008 the mother filed an Amended Response to an Application for Final Orders. The orders the mother seeks are:
Amended Response to an Application for Final Orders
Annexure A
1.That the child live with the mother
2.That the child to spend time with the father as follows:
a.From after school Friday to before school Monday every alternate weekend. On a long weekend to before school Tuesday.
b.For half of the gazetted school holidays, as agreed between the parties, in the absence of agreement then the first half of the school holidays in odd years and the second half of the school holidays in even years.
c.In alternate years 8pm Christmas Eve until 9am Boxing Day commencing Christmas 2008.
d.In alternate years 3pm on New Year’s Eve until 3pm on New Year’s Day commencing 31 December 2008.
3.The parent in who’s care the child is not, on the child’s birthday will spend time from 4pm to 8pm.
4.The children will spend Mother’s day with the mother and Father’s day with the father from 9am to 8pm unless the child is already spending time with the mother or the father.
5.That there be liberal telephone contact between the parent and the child to be facilitated by the parent with whom the child is spending time with. In the absence of an agreement then the child have telephone contact between 5 and 6pm on Monday, Wednesday and Friday in weeks when the child is not spending time with the parent.
6.For the purposes of implementing the above order, nominees of each parent being known to the child deliver and collect the child from the other parent’s nominee from McDonalds Family Restaurant [E] at changeover times.
7.That the immunisation book and passport travel with the child at all times.
Exhibit "M9" is a Minute of Order sought by the mother, tendered by the mother on 11 December 2009 and summarised in these reasons.
The mother filed a Response to an Application in a Case on 11 March 2010 and sought orders as set out hereunder:
1.That I the mother, have [J] the child, stay with me after school Friday to before school Monday every alternate week.
2.For half the gazetted school holidays, as agreed between the parties, in the absence of agreement then the first half of the school holidays in odd years and the second half of school holidays in even years.
3.In alternate years 8.00pm Christmas Eve to 8.00pm Christmas Day
4.The parent in whose care the child is not, on the child’s birthday will spend time from 4.00pm to 8.00pm.
5.The children will spend mother’s day with the mother and father’s day with the father from 9.00am to 8.00pm unless the child is already spending time with the mother or father.
On 7 April 2010 the mother filed an Application in a Case, seeking orders as set out hereunder:
1.Mother has contact with son [J] D.O.B ([…]/11/05) under the supervision of [Mrs D] on Monday 10 – 2 & on Thursday 10-2.
2.In the absence of agreement above that the mother be supervised by the father at a public attraction on the North Shore on Monday 10-2 & on Thursday 10-2.
3.In the absence of agreement above that the mother be supervised by the father at Westfield [shopping centre] on Monday 10-2 & on Thursday 10-2.
4.In the absence of agreement above that the mother be supervised at […] TAFE Playgroup Monday to Friday 10-2 on days or days as agreed by the parties. In the absence of an agreement on Monday 10-2 & Thursday 10-2.
5.In the absence of agreement to the above that the mother be supervised at [E] Occasional Care on days or day available as agreed by the parties. In the absence of an agreement on Monday 10-2 & on Thursday 10-2.
6.That the mother contact the father to speak with [the child].
7.That this matter be listed at short notice.
I note the Response filed March 2010 and the application filed April 2010 by the mother related to interim circumstances and I have regarded the mother as continuing to pursue her application for residence of the child.
Credit
Maternal grandmother
The maternal grandmother is the mother’s mother. She swore an affidavit on 23 March 2010. That affidavit was read by me in the proceedings. However, the maternal grandmother was not available to give oral evidence as was required by the father. She was not available in person or by telephone. The weight I therefore give to the affidavit evidence of the maternal grandmother needs to be considered.
The affidavit dealt with a very important time for the child so far as these proceedings are concerned. It dealt with the period in October 2009 when he allegedly first made statements which the mother concluded evidenced sexual assault on the child by his father.
As will be seen later I have allowed the mother to rely on the maternal grandmother’s affidavit in order to put her case that the child has been sexually assaulted by the father at its highest.
THE FATHER
The father’s oral evidence commenced on 1 December 2008. He presented in the witness box as a quietly spoken and contained person. He did not appear to harbour any resentment or intense dislike for the mother or her witnesses even though the most offensive of allegations were directed against him. There was nothing about his presentation which suggested he was an aggressive “wife beater”. Needless to say he at no stage presented in an apparently intoxicated state. I mention that because the one charge of assault, for which a finding of guilt was made against him, allegedly occurred at a time when he was said to be affected by ingestion of liquor.
He gave his evidence in a very straightforward and responsive manner. Unless the question called for a more expansive answer he answered it succinctly. He presented as giving his evidence honestly. He appeared to have a good memory. He appeared to make his best effort to answer all questions asked of him.
There were some portions of the father’s evidence where I did not accept that he was providing an accurate account of what occurred. One of those portions of the evidence related to the altercation, between he and the mother, in the car, whilst stopped at a set of traffic lights on 2 September 2006. The father said the mother had removed the child from the car seat and sat him on the father’s lap before she left the car. The mother’s version was that she was attempting to remove the child from the car at the time. I consider the mother’s version of fact on this issue the more credible.
It was put to the father that following the incident on 2 September 2006, he had retained control of the child and would only permit the mother to spend time with the child if she participated in sexual intercourse with him. I prefer the father’s version of fact in relation to that matter. The mother during the hearing gave specific evidence about this allegation.
THE MOTHER
In these reasons I have set out extensive portions of the mother’s oral evidence. I have done so because the issue of credit in this case is very significant. It is significant because, in the normal course, it is necessary for the Court to try and determine where the truth lies in areas of clear factual dispute. It is also important because it may create a picture of the type of emotional environment each party will create for the child to live in.
Throughout the evidence of the mother, as I have recited in these reasons, I have referred to the occasions upon which the mother spoke of her difficulty in remembering certain facts. The mother’s explanation was that, as a young person, she had undergone an operation on her brain to remove a benign tumour. The consequence of that operation, so far as her memory is concerned, is that she has what she has called “pocket memory”. That has been explained by the mother as areas of her recollection which are blank. A further aspect of this condition is that where she can not remember a part or parts of a continuum of events, she panics and will compose what she thinks may have occurred.
There are parts of the mother’s evidence which are quite extraordinary, bordering on bizarre. Just because evidence may fit that description does not mean it is untrue. It has therefore been necessary to consider the mother’s evidence in significant detail and also in the broad in order to try and reach a conclusion as to whether it should be accepted.
In these reasons I will draw conclusions about specific pieces of evidence and also the mother’s evidence as a whole.
I have set out in these reasons the mother’s evidence in relation to an alleged assault upon her on about the 23 or 24 October 2006. I do not accept the evidence of the mother in relation to this event reliable or accurate.
The mother’s evidence relating to the number of times she was “drugged” by other S Company staff is also very troubling. The most troubling of the allegations was made in relation to a trip the mother had to Z. All relevant evidence relating to that incident is set out in these reasons. I do not accept that the mother was drugged and raped on that occasion. I do not accept that the mother was drugged on all the occasions upon which she alleged to S Company this had occurred. I would not conclude that the mother was never drugged, as she has alleged, however, assessing all the evidence on those allegations I find, on the balance of probabilities she was not drugged as alleged.
On 10 December 2009 the mother gave oral evidence. On that day she was asked about an appointment made by her for the child to see Dr EN. She agreed she had arranged the appointment without first obtaining the father’s consent. She acknowledged the order made by the Court on 19 December 2008 which prevented her from having the child medically examined without the consent of the father. The mother gave evidence about this matter which I do not accept. She gave evidence that she had tried to contact the father to advise him of the appointment. She said she eventually made contact with him on the day before the appointment. The father’s evidence, which I accept on this issue is that he was contacted by the secretary/nurse at Dr EN’s rooms the day before the appointment to request he obtain a referral. The mother had also inferred that the father had ignored a requirement that the child see Dr EN when he turned three. However, the mother conceded that the child had turned three in November 2008 and it was not until late June 2009 that the mother made the appointment.
I am satisfied that the mother simply chose to ignore the order of the Court made 19 December 2008 which restrained her from having the child medically examined without the father’s consent. Her explanations for not seeking the father’s consent to arranging the appointment with Dr EN I do not accept. I consider that she fabricated them to justify her actions. I am also satisfied that she would have proceeded with the appointment had she been able to do so without the father’s consent. The evidence of what the mother subjected the child to in Western Australia in October 2009, when it eventually was put before the Court in 2010, supports my conclusion on this issue.
It is clear evidence that the mother conducted herself in a secretive and dishonest manner, in relation to her not placing before the Court all of the evidence relative to the medical examinations and the interviews to which the child was subjected in Western Australia in October 2009. This action alone in my view calls into question the reliability of the balance of the mother’s evidence. If she was prepared to act in a manner, which must be seen as dishonesty to the Court, in circumstances where she must have known she had an obligation to tell the Court of the important events of October 2009 in Western Australia, then I must have concerns about the lengths she is prepared to go to in relation to dishonesty with the balance of her evidence.
The mother was cross-examined in relation to her allegation in her affidavit that the father had said to her “I have tracked your telephone conversations from my car”. It was put to her those words were never said. She insisted they were. I do not accept that the father said those words to the mother. I consider the mother has either fabricated the allegation or alternatively has reconstructed, in her mind, some words of the father’s which were not to the effect as asserted by her. There is an inference in paragraph 41 of the mother’s affidavit that the father disclosed to her he had intercepted her telephone calls when she said he had yelled at her “that he had heard my telephone conversation”. The allegations form part of a series of beliefs which the mother has that the father has interfered with her mobile phones, her contracts with her providers (Vodaphone and Telstra), her computer, her email and her text messages. The mother also believes the father has been carrying out surveillance of her by himself and through others, including using a helicopter for that purpose. She believes he has caused other people to break into her accommodations on a number of occasions since their separation. When confronted with questions about the father’s ability to fund all the activities attributed to him by the mother she thought it may be possible through drug dealing of some nature. I do not accept that is true. I consider that the mother has an apprehension or fear that the father may be capable of such activities and has looked suspiciously at her world around her and projected into ordinary daily events her fear of the father. Strangely, she professes not to fear for her own safety at the hands of the father.
The mother was cross-examined about the following statement in her affidavit. “When [the child] returned from having a holiday in New Zealand with [the father], he was very unsettled. He had blood in his stools. He complained of a sore bottom and was distressed when going to the toilet, complaining of pain.” The mother agreed the child came into her care on 18 October 2009. It was not until 27 October 2009 that the child was taken for medical attention. That was a period of 9 days. The mother’s explanation for not seeking medical attention for 9 days was that the orders of the Court required that she have the consent of the father to do so unless it was an emergency. When the child was taken for medical attention in Perth the mother had not obtained the consent of the father for such treatment.
I do not accept that the mother would allow the child to suffer pain over a period of 9 days whilst at the same time observing blood in his stool and take no action to have him medically assessed. She took him to hospital because he had a swollen ear in February 2009. She took him to Royal North Shore Hospital in Sydney because he had insect bites. She did not have the father’s consent to take that action. She made an appointment, without the father’s consent, for the child to see a paediatrician in July 2009 for the purpose of an annual check-up. I consider the mother has fabricated or significantly exaggerated her evidence in the passage quoted above.
On 5 May 2010 the mother was cross-examined by Counsel for the father. She was questioned about the events of 27 October 2009. Her recollection of events was poor. When answering questions she contradicted evidence which she had given earlier that day or on the day before when she had answered questions from the Independent Children's Lawyer. In answer to one question about that day the mother said:
I can recall incidents that have been closer up but the further I get back, the more difficult it is for me to recall exactly what happened in there. I don’t recall. I know Ms Burns has asked me. I don’t recall exactly, but she asked me a question and on the spot I gave her an answer but, yes, I don’t recall the exact information for that date.
When questioned about that evidence the mother told me she did not have any reasonable recall of the events of 27 October 2009 other than the collection of the stool. She attributed those circumstances to her pocket memory problem.
When questioned further about the content of her affidavit in relation to the events described following 18 October 2009 the mother said:
I wrote it down…I explained to Ms Burn unless I actually look at a written note of something that’s been taken- we’re talking October to March, so some time ago. I wrote it down the way I remembered it at that point….It has to be written down and I actually got advised by my neurologist in a situation where there’s quick – or just in certain situations, to write things down if it was necessary.
The mother then told me that she had taken notes at the time, however, when she prepared her affidavit she could not find the notes. She had not looked at the notes prior to preparing her affidavit for the re-opened hearing. She prepared the affidavit on what she thought she could recollect of the events. The mother further explained that “one of the things I do sometimes if I am asked a question and I can’t think, I give an answer quickly without actually trying to recall it or-as I said, the best way is for me to look at what I have written down- notes I’ve taken at the time.”
I then asked the mother if she was saying; “Sometimes when I’m asked a question and I don’t know the answer, I give an answer at the time without knowing it is correct.” Is that right? Answer: That’s right.”
The abovementioned revelations from the mother about the nature of her memory must cast a large cloud over the veracity of her evidence not only in this case but also in relation to other significant events which impinge on this determination such as the father having been found to have assaulted the mother at Sydney station. That is not to say that such a finding may not have been made had the Judge hearing that case been informed about the nature of the mother’s memory. I refer to that matter particularly, because there was a very lengthy period between the date of the offence and the time the Police charged the father. There was further delay before the matter was heard in the Local Court and then in the District Court. The Police and the Courts must have relied upon the mother’s memory at the time the trials took place. Given what has been said by the mother in the trial before me it is hard to see how the mother’s memory could have been any different at that time to when she gave evidence before me.
On 1 June 2010 the mother gave further evidence. On that occasion she misrepresented the truth in a number of ways. First she said that Constable PS had forgotten that she had left a message for the mother on her phone that a match had been found for the fingerprint taken from the mother’s apartment after Police investigated an alleged break-in. Constable PS had told me, on her oath, on 1 June 2010 that she had not provided that information and further that no match had been found for the print. Secondly the mother had told the Independent Children's Lawyer on the morning of 1 June 2010 that Ms D, her partner’s mother, was no longer able to supervise the mother’s time with the child because of high blood pressure. She later agreed the reason was that the mother had complained to Police that Mr D had assaulted her. There had been a complete breakdown in the relationship between the mother and Mr D and between the mother and Mrs D.
On 30 May 2010 the mother told the father her supervised time with the child could not occur because her supervisor was ill. That was a deliberate distortion of the truth. On 30 May 2010 the mother’s relationship with Mrs D was such that the mother knew she would not supervise the mother’s time with the child because the mother had caused an AVO to be issued against Mr D, her former partner.
In written submissions the father referred me to some portions of the evidence of Dr RN and also to a portion of the evidence of the Family Consultant. The following appears:
The Court had the benefit of observing the Father and Mother during the course of their oral evidence. It is submitted that generally the Court would find that the Mother’s evidence was at times evasive and that she frequently failed to respond directly to questions. The Court would find the Father’s responses to questioning less evasive and more direct and would have concluded that the Father was generally a more impressive witness than the Mother. As far as the recollection of the parties is concerned, the evidence of the Single Expert Dr [RN] who interviewed the Wife on 26 May 2009, 17 June 2009 and 2 July 2009 whose report is annexed to her Affidavit sworn 16 July 2009, filed 7 August 2009 states as follows relevant to this issue:
“Not surprisingly given her history of childhood sexual abuse, [the mother] displays no adaptive personality traits and I suspect uses dissociative defences to cope with overwhelming emotional experiences particularly those which are fear and shame based … While [the mother’s] childhood experiences have made her hyper vigilant, prone to being over inclusive and making catastrophic generalisations as well as open to suggestion and misinterpretation, there is a high probability that she has also had further abuse experiences in her adult life (see page 14, 4th paragraph of report).
Her narrative was not well integrated. She explained her difficulties with a chronology by referring to having pocket memory loss following the removal of a benign brain tumour in 1993. [The mother] states that she only has difficulties when asked a lot of questions as she cannot give information quickly.”
Mr CO in his Family Report at paragraph 59 (Exhibit X1) states:
“It is a concern that the mother appears to gain an element of satisfaction from telling account after account of things she alleges the father has done over the years that paints the father in a poor light or that have caused the mother sadness. While the Court may find that there is or is not significant truth to much or all of what the mother states it appears highly likely the mother is prone to exaggeration or at best to analysing past events to fit a belief that the Mother already holds. Combined with her focus on the father’s poor behaviour, it appears as though the Mother is either unaware or unconcerned about the inappropriateness of some of her own behaviour.”
It can be seen from the above quote that Dr RN and Mr CO both had concerns about the reliability of the mother’s memory.
Another piece of evidence which gave me concern in relation to the mother’s reliability as a witness or ability to fabricate is contained in exhibit ICL9. That evidence discloses the mother misrepresented to Court orders to an officer of DoCS. She also misrepresented the content of an alleged advice to the mother by Dr HK.
Paternal grandmother
The paternal grandmother is the mother of the father in these proceedings. She gave her evidence in an apparently honest manner. She appeared to hold very genuine affection for her grandson J.
I have no reason to doubt the veracity of her evidence based on the presentation in the witness box or on the content of her evidence.
Paternal grandfather
The paternal grandfather is the father of the father in these proceedings.
The paternal grandfather impressed me as a witness of truth. He was cross-examined by the Independent Children's Lawyer and the mother’s Counsel. There was nothing about his presentation in the witness box or the content of his evidence which made me suspect he was being untruthful.
Mr D
Mr D gave evidence by affidavit and also orally. He presented as honest and truthful in the giving of his evidence. He appeared to be endeavouring to answer questions asked of him. He did not argue with the questioner.
Ms HE
Ms HE provided an affidavit and gave oral evidence in the December 2008 hearing. She presented as an honest witness. I accept her evidence.
The Evidence
The Exhibit Evidence
Exhibit “X1”: Family Report dated 6 May 2008
Exhibit “X1” is a Family Report prepared by the Family Consultant, Mr CO, pursuant to orders made by Justice Mullane on 15 February 2008.
At the time of preparing this Report the child was aged two years and five months, and thus due to his young age was not formally interviewed. He was said to appear to be a healthy and happy child. During formal and informal observations the child was said to appear to have a positive relationship with each parent and there was no indication of a clinical level of ‘separation anxiety’ when a parent left the room.
Information in the Report was obtained from Court documents, as listed at the commencement of the Report, and from informal and formal observations of the child with the parties and from interviews with the mother, father, paternal grandfather, mother’s previous partner and a Counsellor from Community Health. It was noted that a limitation of the Report was that the child’s previous treating psychologist, Ms PW, was not interviewed and that there was no subpoenaed material available to the Family Consultant.
The atmosphere when both parents were in the room with the child was described by the Family Consultant as being “tense”. The mother and maternal grandmother did not acknowledge each other’s presence in any way. The mother and father spoke to each other briefly but their conversation appeared to the Family Consultant to be very strained.
The Family Consultant set out matters relating to the background of the dispute, and noted that both parents alleged there has been a long history of domestic violence in their relationship, with each alleging the other parent to be the aggressor and themselves to be the victim. In addition, it was noted that it was common ground that the child had a disrupted start to his life and “[s]ometimes [the child] had two parents at home for days, sometimes [the child] had one parent at home for days and sometimes [the child] had no parent at home for days.” The father has been employed fulltime for S Company and his schedule can change at an hour’s notice and he may be away for periods of up to four days. At the time of being interviewed by the Family Consultant, the mother’s work schedule was said to not appear to be as hectic as that of the father, but it nonetheless had no set pattern and involved absences of several days at a time.
In November 2007 further interim orders were made in an attempt to have the child cared for by one of his parents for as much of the time as possible and to address concerns that the child was not spending very much time with the father when notionally in his care, due to the father’s erratic employment schedule.
The mother returned to work when the child was three months of age and the child was primarily cared for by a live-in nanny, who ceased employment when the parents separated, at which time the child was 10 months of age. Following separation the child was cared for by the father’s niece, who was employed by the father as a live-in nanny. The Family Consultant wrote that “[d]uring this period [the child] went up to three weeks at a time without seeing a parent and there was considerable animosity and cross allegations that the parents were physically and emotionally abusive of each other.”
The issues in dispute were identified by the Family Consultant as being what time the child will spend with each parent, particularly given that it was said to be extremely likely that unless one or both parents decide to live closer to the other parent, the child will predominantly live with one parent and spend relatively little time with the other parent. At the time he was interviewed by the Family Consultant the father was proposing that the child live predominantly with him and his future de-facto partner and her 6 year old daughter.
In addition, at issue are the circumstances surrounding the violence during the parents’ relationship and post-separation. A number of other issues in dispute were identified, including the mother’s allegations that the father spends little time actually caring for the child when he is in his care. Each parent made allegations in relation to the other parent’s abuse of alcohol and subsequent violence.
The father told the Family Consultant that the parents’ relationship became violent in 2003 and involved intermittent violence with “alcohol playing a large part” and that it was “physical from both sides”.
In particular, the Family Consultant said that:
“[a]t issue, which may impinge on the father’s ability to parent, is the extremely serious accusations that he has a tendency for emotional abuse and physical violence including sexual violence. The father is alleged to have systematically abused the mother repeatedly throughout their relationship including throughout her pregnancy with [the child]. It is noted that the father has been convicted of physically assaulting the mother when she was 38 weeks pregnant causing her to be hospitalised. The father is currently appealing this conviction. The mother is concerned that the father’s abuse and violence will continue with any future relationship the father has and that [the child] will be exposed to this violence and over time, may himself be victim to the father’s abuse and violence.”
At the time of being interviewed by the Family Consultant, the father was proposing that the child live with predominantly with him and his future de- facto married partner and her six year old daughter on the Central Coast and spend each weekend with the mother. The Family Consultant said it was of concern that the father was intending to commence a de facto relationship with his girlfriend and her child immediately upon their arrival in Australia, when J has met neither of them.
It was noted that such an arrangement as proposed by the father would require the mother to live in Sydney or the Central Coast rather than in Perth. The mother proposed that the child live with her in Perth and spend time with the father during set times, with changeovers to occur in Sydney and the mother to accompany the child on the flights. The Family Consultant estimated that the total ‘door to door’ travel time would be eight to ten hours.
The father has Maori culture from both his maternal and paternal family and he is close to his parents and sister. He was described by the Family Consultant as being quietly spoken and cooperative throughout. The father moved to Australia from New Zealand when he was ten years of age, with his parents and seven year old sister. The father stated that, aside from being the victim of racial abuse and bullying between the ages of 11 and 13 years, he did not otherwise suffer abuse. The father had three sessions of joint Counselling. The Family Consultant reported that the father completed both an anger management course and a parenting after separation program, both of which he said he found to be “very good”.
The father said his only involvement with Police was in relation to the accusations of violence which each party has made against the other.
The father completed his Higher School Certificate and then did six months of a tertiary degree, followed by 18 months in the Defence Force and then completed a Bachelor degree. The father commenced employment with S Company in 2002. The father’s “erratic employment schedule”, as it was described by the Family Consultant at the time the Family Report was written, was further said to be a factor which may impinge on the father’s ability to parent, as it was said to be quite possible that the child would be cared for by persons other than one of his parents for the majority of time.
The father was in a relationship for approximately five years but separated approximately six months before meeting the mother in November 2002. They commenced a de facto relationship in Perth in early 2003 and the mother said the father commenced being emotionally and physically violent shortly thereafter. The parties purchased a home together in Perth in 2004, at which time the father was working for S Company and was based in Sydney and the parties subsequently relocated there, with the mother transferring her employment to work out of Melbourne. The mother said that her relocation to Sydney was a result of the father saying to her, whilst she was pregnant, that unless she moved to Sydney then their relationship would end.
The parents separated in September 2006, when the child was approximately 10 months of age. The Family Consultant noted the parties’ accounts of the events during the four months following separation and prior to interim orders being made is significantly different, and involving cross allegations by each parent that the other was not following the orders. The interim orders provided that the child spend ‘four days about’ with each parent. The father’s account was that during that time an informal arrangement of shared care was largely successful and that the longest period the child went without seeing either parent was approximately two weeks.
The father stated he typically consumes alcohol on approximately ten days each month and that he typically drinks three or four standard drinks on those occasions, but that this is not done at home. He stated he does not use any illegal drugs.
The mother was said to be relaxed and cooperative throughout her interview with the Family Consultant. She spoke freely and often provided lengthy and detailed accounts without prompting. The Family Consultant said that:
“[a]n issue, which may impinge on the mother’s ability to parent, is the extremely serious accusations that she has a tendency for physical violence and that this is made worse by her tendency to drink alcohol to excess. Another issue, which may impact on the mother’s ability to parent, is the extreme likelihood that she would not actively promote the role of the father, or the extended paternal family, in [the child’s] life. Another issue, which may impinge on the mother’s ability to parent, is her employment schedule with [S Company].”
The mother was born in Australia, and then lived in New Zealand until she was four years of age, before returning to Perth. The mother reported a stable childhood, and that it was one which did not involve alcohol, drug or violence issues. She has an older brother and sister who reside in Perth. The mother left her childhood home in 1989 when she married Mr W at 19 years of age. Mr W is the father of the mother’s other child, C. The mother and Mr W separated in 2001 as a result of the mother’s allegation that he had an affair, and which he denied.
The maternal grandparents separated when the mother was 24 years of age. The mother reported being sexually assaulted by her father when she was a child, and as a result of extensive Counselling the Family Consultant wrote that the mother “…is now very comfortable with her childhood sexual abuse.” The mother has very limited contact with her father, who lives in Tasmania but has frequent contact with her mother who lives primarily in Perth with her partner.
The mother completed Year 11 of her secondary education and completed a traineeship. She returned to part-time employment three months after C’s birth and worked from home as the manager of a promotions company. In 1998 the mother commenced full time casual work and became a permanent employee in 1999 with S Company and moved with C to Queensland. Mr W joined the mother and C three months later.
The mother and Mr W had an informal agreement in relation to C’s care, in which she lived primarily with the father and spent time with the mother, subject to the mother’s work schedule. Mr W reported that in 2004 C was becoming tired of the travel, and when the mother sought to relocate to Sydney Court orders were made that the mother could move to Sydney and C would live predominantly with her father.
Mr W was interviewed by the Family Consultant by telephone. At the time of the Family Report interviews Mr W reported that C had developed a fear of flying 18 months ago and thus only sees the mother when the mother is Perth. C was said to be attending boarding school and spending time with the mother during school holidays and sometimes during school term. The mother reported having a good relationship with C and also Mr W and his new partner. Mr W told the Family Consultant that he had only had infrequent brief meetings with the father, but that they had been cordial. In the Report it is however further said that: “Mr [W] stated that based upon what the mother had told him he was ‘never totally comfortable when [C] was with [the mother] because of the goings on between [the mother] and [the father] such as that ‘[the father] had employed a hit-man who was following [the mother].”
Mr W stated that during his relationship with the mother there was no alcohol or other drug issues, but that the mother had issues with alcohol following their separation. In addition, Mr W told the Family Consultant that the mother had issues with anger and there was some violence from her, but that he was not violent to the mother. The Family Consultant “…noted that subpoenaed material indicated that the mother claims that she was the victim of domestic violence throughout her relationship with Mr [W] (as well as throughout her relationship with the father).”
The mother told the Family Consultant that “I did defend myself” but denied ever being the aggressor. The mother said that typically the father would assault her, then promise to be nice, which occurred for a short period, followed by further violence. She said she had considered leaving the father on a number of occasions because of the continuing violence and because he was having affairs.
The mother said her involvement with the Police was limited to her conviction of Driving under the Influence in January 2007 and in relation to the father’s violence. The mother said she drinks alcohol on approximately half of all days and typically drinks half a bottle of wine with dinner. She said she does not use illegal drugs.
Following the parties’ separation the mother said the father continued to display controlling behaviour and was emotionally abusive towards her. The mother described to the Family Consultant numerous occasions when she alleges the father refused to allow her to see the child, or would only allow her to see him for a short period at a shopping centre and that one or two months after separation the mother offered the father ‘special sex’ in order to see the child. (I note this evidence is at odds with the mother’s other evidence on the topic namely that the father had demanded sex in order to allow the mother to spend time with the child. The Family Consultant was not cross-examined on this allegation.)
The mother attended her general practitioner on one occasion after the father tried to strangle her and was referred to H Acute Care by hospital anti-natal staff after the mother stated on a questionnaire that the father had previously assaulted her. As a consequence, the mother commenced seeing a Counsellor, Ms FR, in March 2006, following a referral to a domestic violence Counselling service at the Community Health Service. The mother had telephone contact with that Counsellor some three months prior to the Family Report interviews. Ms FR told the Family Consultant that she was extremely concerned that the mother’s life was at risk. She further said she had no reason to doubt the mother’s truthfulness and described the father as a cunning and dangerous man.
When the child was aged twenty months he was referred by his general practitioner to a psychologist. The Family Report says that:
[w]hen the mother subsequently reported that [the child] was self inducing vomiting because he had separation anxiety and did not want to leave the mother and spend time with the father, the mother was reportedly advised to take [the child] to hospital. The mother also reported the behaviour to the Department of Community Services.
The Family Consultant went on to say in his Report that the behaviour the mother attributed to the child:
…is extremely uncommon in such a young infant and would be highly indicative of very significant problems and strongly suggestive that the infant has learnt to obtain attention in this way. It is therefore very likely that the infant would also display the same behaviour when with the father but the father reported that [the child] did not behave this way when in his care.”
Furthermore, it was said that “…it is extremely unusual for a child to be receiving psychological treatment from such a young age and it would appear most likely that the mother was receiving the treatment to assist the mother to manage the child’s behaviour as reported by the parent.”
The child was reported by the Family Consultant to not have had his basic psychological developmental needs met, having experienced extremely serious disruption to his normal psychological attachments during the critical period of six and twenty four months of age. It was said to be “…extremely likely that [the child] has experienced significant separation anxiety and this is likely to have significant negative consequences for him.” Furthermore, “…if [the child] has witnesses the chronic emotional and physical violence between his parents (irrespective of whom the aggressor was), as is alleged, this is likely to have a significant negative impact upon him and further add to his disrupted attachment.”
Under the heading “Evaluation” the Family Consultant considers it a concern that both parents appear to have little understanding or regard for the developmental needs of their then ten month old child that they would prevent the child from spending time with the other parent for up to three weeks. It is said that “...[i]t is even more concerning when it appears that several of the lengthy periods when [the child] was separated from his parent were the direct result of deliberate actions of a spiteful parent blinded by their ongoing conflict”.
The Report notes that the mother appeared to gain an element of satisfaction from recounting allegations that painted the father in a poor light, or which have caused the mother sadness. It was said that the mother appeared “…either unaware or unconcerned about the inappropriateness of some of her own behaviour” and also that the mother was dismissive of her criminal convictions for Driving Under the Influence and for malicious damage. The Family Consultant considered that the mother “…appeared to take no responsibility at all for these events and attempted to minimise the seriousness and provide mitigating excuses.” In addition, the Family Consultant considered it highly likely that the mother is prone to exaggeration or to analysing past events to fit a belief she already holds. It was said to be:
…of further concern that the mother appears to have sought and obtained considerable attention for herself by advising multiple health professionals of behaviour the mother attributes to [the child]…On each occasion that [the child] was seen by a different health practitioner, the mother provided her detailed account of the father’s behaviour, which the mother appeared to believe was the sole reason for all of the difficulties experienced by the mother and [the child].
The mother had made allegations that the father had been physically and emotionally abusive towards her
…and that the abuse was extremely violent, systematic and long term. If the Court finds that the mother’s allegations are substantiated, this would indicate that the father has an extremely serious problem with violence and control and this would raise serious concerns for the safety and well being of the child if the child was to spend unrestricted time with the father. Similarly, there would be serious concerns about the appropriateness of the father having any responsibility for long term decision making for [the child].
If the Court finds that the mother’s allegations are not substantiated this would raise serious concerns about the mother’s ability to place the needs of [the child] above her own needs and therefore would raise serious concerns about the mother’s ability to have any long term decision making ability for [the child] and also about the appropriateness of [the child] living predominantly with the mother as is her proposal.
It was said in the Report to be of extreme concern that the father has been convicted of assaulting the mother, and of further concern that this occurred when the mother was 38 weeks pregnant with the child. At the time of preparation of the Family Report the father was appealing that matter.
The Family Report writer said that it appeared both parents have failed to adopt a child-focussed approach to their co-parenting and that the actions and attitudes of the parents strongly suggested that if the child was to predominantly live with either parent then that parent would not actively promote the child’s relationship with his other parent and their family. Consequently, the Family Consultant recommended that in considering with which parent the child would predominantly live that consideration be given to the likelihood that each parent will actively encourage and promote the child’s relationship with the other parent and their family.
In particular, the Family Consultant in his evaluation, said that:
…[t]he parents have continued their violent and abusive relationship and arrangements for [the child] have been dictated by the parents’ perceived needs and sense of entitlement rather than with any concerted effort to meet [the child’s] complex and changing developmental needs.
The Report said that the attitude and behaviour of both parents would need to change before any shared decision making was appropriate.
The Family Consultant recommended that the child live predominantly with one parent and spend significant and substantial time with the other parent. It was recommended that the cross-allegations of violence and control (and the future likelihood of that behaviour being engaged in) be considered in determining the parent with whom the child would primarily live. In view of the communication between the parents, which the Family Consultant described as “totally inadequate”, and the geographic distance between the parents, it was recommended that the child not spend equal time with each parent. The Family Consultant said “[i]t is highly likely that any attempt to continue the current shared care equal time arrangement would be extremely harmful for [the child].”
The Family Consultant said it may not be possible for the parents to jointly make decisions about the child’s long term welfare. In making recommendations, the Family Consultant recommended that the Court seriously consider the appropriateness of the parents having shared parental responsibility for long term decisions regarding the child. If that long term decision making was the responsibility of one parent then it was recommended it should be with the parent with whom the child is predominantly living.
In light of the father’s completed relocation to the Central Coast and the mother’s proposed relocation to Perth, it was said that such travel would impose a significant burden on the child. The Family Consultant said that:
…the harm from the conflict resulting from the parents having to communicate with each other to implement a schedule which is based on parents’ employment arrangements would far outweigh the benefits for [the child] of actually spending time with a biological parent when [the child] is notionally in the care of that biological parent.
The Family Consultant thus recommended a “simple child focussed schedule” rather than one based upon the dynamic work schedules of one or both parents and that non face-to-face communication occur based on the child’s developmental needs and on common Courtesy.
It was said that both parents would benefit from appropriate intervention, including in relation to their alcohol consumption and dealing with their stresses. Recommendations were further made in relation to the parents attending a community agency program, and that the “Recommendations” section of the Family Report be made available to that agency, and that such agency also guide the parents to reach agreement in relation to their communication.
It was further recommended that the mother consult with her General Practitioner regarding the appropriateness of receiving therapeutic Counselling, as the Family Consultant considered it appeared the mother would benefit from specific assistance, given her reports that she has been the victim of various forms of extremely serious abuse.
I note that the above extract refers to information obtained by the Family Consultant from “subpoena documents” and also from speaking with persons who were not witnesses in the proceedings. Where the “subpoena documents” were not tendered in evidence before me I have been unable to give those assertions meaningful weight. I simply note the assertion. Likewise where the persons who spoke to the Family Consultant have not given evidence in the hearing before me I have been unable to give the reports of what they said to the Family Consultant any meaningful weight.
Exhibit “X2”: Transcript of proceedings
Exhibit “X2” is an extract of the transcript of proceedings between the mother and father on 7 September 2007, before Justice Mullane in the Newcastle Registry of the Family Court of Australia.
Exhibit “X3”: Curriculum Vitae of Family Consultant
Exhibit “X3” is the Curriculum Vitae of the Family Consultant, Mr CO.
Exhibit “X4”: Single Expert Report
Dr RN was appointed as the Single Expert in this matter on 19 December 2008. A Single Expert Report, Exhibit “X4”, was completed by Dr RN, Psychiatrist, and dated 16 July 2009. Dr RN interviewed the mother, maternal step-grandfather, father and paternal grandmother. Interviews took place between Dr RN and each parent, both with and without the child. Dr RN also read a bundle of Court documents as listed in the letter of instruction and attached to Dr RN’s affidavit. These documents included the application and response of each party, affidavits, the Family Report dated 6 May 2008 and a transcript of the proceedings. In addition, Dr RN had telephone contact with Dr CL, GP, and read documents relating to the mother’s brain tumour, supplied by the mother when requested.
At the time of interview the child was aged three and a half years and was observed by Dr RN to be a handsome, healthy and age appropriate child with good language development and a positive mood. The child has a congenital spinal pit lipoma and ptosis in his right eye but has normal development milestones.
Under the heading “Summary and Discussion”, Dr RN considered that the child presented as a much loved, age appropriate child with a positive connection to his parents, paternal grandmother and maternal stepfather. It was said that the child’s “…exposure to the acrimony and violence between this parents could well cause future significant psychological problems if he has further experiences which cause him to be anxious and fearful.” Dr RN said:
To remediate any possible damage/vulnerabilities, [the child] needs ongoing certainty and predictability in his living arrangements and in his caregivers’ behaviours. Given his parents’ allegations and histories, [the child] will be best protected by being embedded in his extended family in order for him to have access to other attachment figures should his parents fail him in the future.
During the interview the mother was observed to follow the child’s play appropriately and to affectively respond to him. The child also played happily with the paternal grandmother and also played with the father appropriately. Dr RN described the father as attending to the child gently.
When the mother was asked by Dr RN whether she had any current concerns in relation to the child she replied that she did not, but said she would be concerned about the impact on the child if the father began another abusive relationship. The father described “[t]he number of moves [the child] has gone through” and the travel the child undertakes between his parents’ residences and also the allegations made by the mother that the child had been abused by the father.
The mother was described by the single expert as pleasant, although somewhat nervous. Her affect was said to be minimally reactive and she remained vigilant through most of the interview. The single expert reported that the mother’s narrative was not well integrated, and she explained her difficulties with a chronology as being the result of “pocket memory loss” following the removal of a benign brain tumour in 1993. The mother’s medical reports documented the “removal of a colloid cyst to the third ventricle”. A report by WA, Neurologist, in August 2005 gave the opinion that the position of the cyst could well account for the memory disturbance the mother complained of, in relation to short term memory retention and recollection. The mother told Dr RN that neuropsychological testing showed mild short term memory loss which does not affect her day-to-day living or employment.
Balancing the matters set out in section 60CC of the Act and the evidence recited in these reasons, I conclude that the orders I propose will operate to foster the best interests of the child.
In this matter I have considered, weighed and assessed all of the evidence which I see as important in reaching a decision and in considering the matters mandated by the Act in determining a parenting case.
I have considered matters of credit relating to the parties and their witnesses. For reasons stated earlier I consider the mother’s evidence unreliable. I have determined that I have preferred the evidence of the father to that of the mother where they are in conflict. The only exception is where I have specifically stated it to be otherwise.
In dealing with the section 60CC matters I have referred to the evidence and made findings which I consider to be most apposite in each matter considered.
I now come to the conclusion to be reached in the case. In reaching a conclusion I will endeavour to identify the principal reasons for reaching same.
The primary conclusion I reach is that the child’s best interests would be served by living with his father and spending time with his mother. That time, probably for the next two to three years, needs to be closely monitored.
I find it very sad for the child that he cannot have a life where he can spend extensive time with each of his parents. He clearly has a close relationship with each parent. I accept he has a great need to spend substantial and extensive time with his mother, however, I have come to the conclusion that the cost to the child’s long term welfare is too great to allow that to happen at this time. That cost has been specified by me in these reasons particularly in dealing with section 60CC(d) above. In short there is a probability that the mother would continue to deal with the child in the conviction that he has been abused by his father, and like her, is a victim of domestic violence. I have no doubt that she would not be able to hide her own view of the father (a wife and child abuser) from the child. I am also sure she would find some way to circumvent any order that prevented her obtaining any medical, psychiatric or psychological assessment or therapy for the child as she has done in the past. I hold a fear that the child’s relationship with his father and the paternal family would suffer in such circumstances and may even break down.
I am satisfied that there is an erratic aspect to the mother’s parenting style. She has acted on the “spur of the moment” in a manner which she later regrets. The removal of the child from the play centre on the Central Coast is one example. The sending of text messages to the father is another.
I am satisfied the mother could act in a secretive way with her parenting of the child. That is in a manner which she would know the father would oppose and which the Court might consider inappropriate. There are examples referred to in these reasons where the mother told the Court she had kept relevant information secret because she believed, on advice, that it might be adverse to her case. This was amply illustrated by her failure in the hearing conducted in December 2009 to tell the Court of the happenings in Western Australia with the child in October and November 2009.
The mother in her explanation for failure to disclose these matters said that she had been advised by her Counsel, Ms Gibbons, not to disclose the information because she would not be believed. Unfortunately, at the time the mother gave that evidence, Ms Gibbons was no longer acting for the wife and therefore was not present to admit or deny that allegation. I add to that the fact that the mother attributed to Ms Gibbons, advice to not tell the Court other information, again for the reason that she would not be believed. If any such advice was given then I regard it as quite improper and a dereliction of obligations to the Court by both the barrister and the mother (See Rule 13.01 in particular).
I am satisfied that the mother holds little possibility of being able to provide a stable household for the child either in a physical sense or in the personnel who might occupy it. Notwithstanding the mother’s evidence that her counselling for domestic violence had given her insight into the choosing of a partner who would not be violent to her, she entered into a relationship with Mr D and that relationship failed, on the mother’s evidence, because of domestic violence. Her evidence was that the domestic violence was not isolated to one incident. She told me that the earlier incidents of domestic violence were restricted to Mr D pushing her.
I have taken into consideration the opinion of the Family Consultant. The Family Consultant recommended that, in considering with which parent the child would predominantly live, consideration should be given to which parent will actively encourage and promote the child’s relationship with the other parent and their family. I have come to the conclusion that parent will be the father.
I find that the mother is a very attractive person with a largely warm and open personality. In normal circumstances I would quickly conclude that she would very much benefit her son by being able to spend extensive periods of time with him and also being able to mould and frame his view of the world. I am concerned however, about the mother’s view of the world and also concerned whether that view is formed on accurate recollections of events in her own life.
I rely on the report of Dr RN where she considered the effect on the mother’s parenting of her psychological functioning, Dr RN said that whilst she understands the mother to want the best for J and C:
She is not able to be as emotionally attuned to them as is desirable. Thus she failed to indicate any need [C] might have currently for her mother and has demonstrated erratic and dramatic behaviour around [J], for example absconding with him from the [Central Coast] play centre (an incident also involving [C]) and assaulting his father in the car incident. Allowing alcohol to affect behaviour when children are in one’s care is also a significant concern.
I also take into consideration the opinion of Dr RN in relation to the father namely:
It…was concerning in his apparent failure to reflect on his contribution to the sorry story of this couple’s relationship, despite evidence that he had attacked/retaliated against his then pregnant wife in the [Sydney station] incident and his very insensitive reaction to the news about [the mother] and the [S Company employee] (calling the [employee’s] wife and declaring a rape).
Dr RN considered that the father’s
…assertion that [the child] would have more stability with him also suggests a narcissistic self acceptance, for the reality is he almost required [the child] to adjust to a stepmother and, should [the child] live with him, [the child] will need to adapt to being cared for by his mother in his unpredictable absences.
I should also record that I consider the father to be a far better all round parent for the child than the mother, however, I would not wish it to be construed that I consider he has no faults or potentially harmful aspects of his personality to the child’s development. I have found that he was violent to the mother. He admitted, on his oath in Court, that he had punched the mother at a time when she was 38 weeks pregnant. Such a loss of control does not speak well of the type of temperament which might be regarded as optimal in a parent for the child.
Exhibit ICL9 discloses that on 1 February 2010 the mother took the child to Royal North Shore Hospital and requested examination following allegations of sexual abuse. The mother left and attended the Children’s Hospital after she was told there was no paediatrician available. At the Children’s Hospital the child was examined. Such action by the mother was in breach of a Court order restraining her from having the child examined by a medical practitioner without the consent of the father unless it was an emergency. It clearly was not an emergency given the investigation the child underwent in Perth some few months before. I find the mother knew she was breaching an order of the Court.
A matter of concern to me is the evidence contained in Exhibit ICL4 as set out earlier in these reasons. Notwithstanding orders of the Court made on 7 September 2007 and 14 September 2007 the mother sought to use the services of the Police and DOCS to secure the delivery of the child to her at a time when she alleged he had not been delivered to her as provided in an order. Without going into the rights and wrongs of any alleged breach of orders by the father, it is of concern that the mother would sanction the intervention of Police to recover the child without an order of this Court. It must have been obvious to her at the time that a Police recovery of the child would likely be traumatic and frightening for him, yet, in circumstances where I am satisfied the child was not at risk of harm in his father’s care, the mother was prepared to use this type of force against the child.
I also wish to record my concern for the early development of the child. This has already been addressed extensively in the evidence and in particular, in the evidence of the Family Consultant. The confusion and anxiety which must have been suffered by the child in his early days when each of his parents was leaving him for days at a time (on some occasions both were away) must raise concerns about each parent’s capacity to understand the needs of a small child and place those needs ahead of a career or a more comfortable or exotic lifestyle.
I am also cognisant of what I have set out earlier arising from the evidence of the Family Consultant. That evidence is as follows:
The mother had made allegations that the father had been physically and emotionally abusive towards her:
…and that the abuse was extremely violent, systematic and long term. If the Court finds that the mother’s allegations are substantiated, this would indicate that the father has an extremely serious problem with violence and control and this would raise serious concerns for the safety and well being of the child if the child was to spend unrestricted time with the father. Similarly, there would be serious concerns about the appropriateness of the father having any responsibility for long term decision making for [the child].
If the Court finds that the mother’s allegations are not substantiated this would raise serious concerns about the mother’s ability to place the needs of [the child] above her own needs and therefore would raise serious concerns about the mother’s ability to have any long term decision making ability for [the child] and also about the appropriateness of [the child] living predominantly with the mother as is her proposal.
As referred to earlier in these reasons I have largely been unable to give weight to the evidence of the mother where there is disagreement with the father. This is because of the mother’s own evidence about the state of her memory and her propensity to “make up” the gaps in her memory by stating what she believes may have occurred. She said this happens when she is pressed for information. She said she panics and answers the question asked by constructing a memory rather than genuinely recollecting the information sought.
That which I have set out above under the heading of “The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs”, has also been a very important part of the determination I have come to. I refer in particular to the evidence of Dr RN as set out under that heading.
Unfortunately for the child, I have to conclude that until he is old enough to understand that his mother may have a different view of life based on her “pocket memory” and any other process of her thoughts and cerebral function, which would not accord with the majority of people living in that same world, it would be potentially damaging to his development as a whole and in particular to his emotional development and his relationships with his paternal family for him to be allowed unfettered time with his mother.
The mother, at this time, appears to now have a relationship with her former husband, Mr W, in which she has trust in him as a father and principal carer, for their child C. That has not always been the case as the evidence in this case has attested. The mother would need to have that type of trust relationship, with the father in this case, before J could be expected to be saved from the particular adverse aspects of the workings of the mother’s mind. Perhaps there is room for a position short of trust, however, that would involve the mother being able to shield the child from her true feelings about the father and at this time, I have no confidence that the mother has that capacity to so shield him.
Having assessed all of the evidence I have no confidence that the mother can offer the child stability and predictability as a principal carer. I have no confidence that the mother could be trusted to follow a Court order that she not have the child examined or treated by a medical, psychological or psychiatric practitioner without the consent of the father. I have no confidence that she would not question the child about possible abuse at the hands of his father. I have no confidence that the mother would not create an environment in which the child felt he was required to make untrue allegations against his father or his father’s family. I have no confidence that the mother would not grasp even the most innocuous of the child’s statements to her as indicative of abuse by the father.
I was impressed by the oral evidence of the father which I have recorded earlier in these reasons as:
The father was asked what he would do to promote [the child’s] relationship with his mother should [the child] be living in his care. He said he would not himself make any criticism of the mother in the presence of the child nor would he permit others to do so. He said that [the child] has a photograph of his mother in his bedroom. He talks about his mother and living in Sydney with her. He talks about the things he does with his mother. He said he would assure [the child] that his mother loves him and cares about him a great deal.
I thought that evidence was important for a number of reasons. Those reasons are:
·For the father to have arranged for the child to have a photograph of his mother in his bedroom indicates an acceptance of the role of the mother in the child’s life and the need for the child to be able to see her likeness as often as he wishes.
·The evidence that the child talks to his father about his activities with his mother and about his mother generally, tends to indicate to me that the child understands his father is not adversely affected by such conversation.
·This evidence adds to the conclusion that the child will be able to enjoy a relationship with his mother if he lives principally with the father and his family.
I am satisfied that the father’s parents will not speak negatively about the mother in the presence or hearing of the child. I accept their evidence in that respect.
I am satisfied that the mother could not restrain herself from questioning the child about the possibility of abuse by the father were she to have unsupervised time with him. I am satisfied the mother’s mind set is such that she will remain hyper vigilant to the possibility of further abuse during her contact with the child. I am satisfied she would subject him without recrimination or concern for his welfare to any investigation, no matter how intrusive, in order to gain the evidence she needs to prove her absolute conviction that the child has been sexually and physically abused by his father. I am satisfied that any such action taken in an unwarranted circumstance could leave the child psychologically damaged.
Unless and until the mother has changed her view of the father as a child abuser, or changed the way she reacts to the child’s statements to her which she perceives as negative to the father, I can see no prospect of the child being able to have unrestricted time with his mother. There may come a time when the child has reached an age where an appropriate expert might advise the Court that the dynamic between the mother and the child has changed and therefore recommend any restrictions could be eased or removed. I have no idea when that might be.
The Orders to be made
I have considered the orders suggested by the Independent Children's Lawyer. In the main the proposed orders seem to me to reflect the conclusions I have reached in these reasons.
I have said I propose to order the father have sole parental responsibility for the child. I also propose to order that he invite her opinion or view in relation to any major decisions to be made for the child. I will make such an order.
I have determined that the child should live with the father and spend time with his mother only where that time is strictly supervised. The reasons for that determination are set out above.
The regime of time submitted by the Independent Children's Lawyer for the mother to spend with the child appears to me to be appropriate at this time.
In the event of the mother failing to attend, at a scheduled time for her to see the child, without giving the father adequate notice of her inability to attend, then the orders should be suspended until any agreement to reinstate is reached or further order of the Court. I have no doubt that the child will be eager to see his mother and for the father to prepare him for such a visit and then have the mother not attend is in my view likely to distress the child and be harmful to his development. The Independent Children's Lawyer submitted that the mother should not have her time suspended for one occurrence of this nature but should be allowed three. There may be some legitimate excuse for her failure to attend from time to time. I accept that submission and will so order.
In the hearing I asked the mother if she would consent to an order that she attend upon a psychologist to assist her in understanding the emotional environment she had created for the child. She said she would not do that. I propose to make a recommendation that she does attend upon such Counselling. I really cannot see any way forward for the child in his relationship with his mother if she does not try to address the circumstances which gave rise to the restricted orders which are required to be made.
One of the topics dealt with as part of the determination of the issues identified by the parties in the case related to whether the child has any special needs. I have stated that I consider he may need some type of counselling to assist him recovering from the impact of the parental conflict. I propose to recommend that the father arrange an assessment of the child’s need in this regard with a psychologist of his choice.
I have referred earlier in these reasons as to the length of time the mother’s time with the child may need to be supervised. That time is dependant upon the mother obtaining therapy which addresses the concerns for the child’s welfare raised by these reasons.
The evidence of Dr RN suggests to me that the mother would need to work with a therapist for not less than 12 months before a likely change may be evident in the mother’s thoughts and parenting approach which led to the necessity to impose such a significant order for her time with the child to be closely supervised.
I propose to give the mother the opportunity to return to the Court to seek orders changing the time and nature of the time she spends with the child after she has undergone 12 months of therapy and in the event of her securing from her therapist a report which may be provided to the court and which states an opinion that the mother has responded to therapy and is unlikely to exhibit the type of parenting towards the child which fell for criticism in these reasons.
I certify that the preceding one thousand one hundred and forty five (1145) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench
Associate:
Date: 16 September 2010
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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