Hammond and Hammond

[2013] FamCA 1049

FAMILY COURT OF AUSTRALIA

HAMMOND & HAMMOND [2013] FamCA 1049

FAMILY LAW – CHILDREN – Interim parenting – Risk of harm to the child – Whether the risk is of sexual harm or of emotional/psychological harm – Serious concerns raised in the Family Report as to the child’s care in the mother’s household – Whether the child’s residency is to be changed on an interim basis – Parental responsibility be allocated to the parent with whom the child lives

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286, [2006] FamCA 1346

APPLICANT: Ms Hammond

RESPONDENT: Mr Hammond

INDEPENDENT CHILDREN’S LAWYER: Mr Naidovski

FILE NUMBER: PAC 1867 of 2008

DATE DELIVERED: 18 December 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 17 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Merkin

SOLICITOR FOR THE APPLICANT: Kim Eccleston Family Law Sole Practitioner

SOLICITOR FOR THE RESPONDENT: Lamrocks Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

PENDING FURTHER ORDER

1. The father have sole parental responsibility for the child.

2. The child is to live with the father.

3. The document prepared by Independent Children’s Lawyer is marked as Court’s Exhibit A and orders are made in accordance with paragraphs (a) to (d) in that document, subject to the inclusion of the wording “or other location regarded as suitable by the maternal grandparents” at the end of paragraph (a).

AS TO PROCEDURAL MATTERS

1. Leave is granted to parties to approach the List Clerk for the allocation of trial dates when appropriate.

2. Both parties file and serve any amended application or response upon which they intend to rely by no later than twenty-one (21) days before the commencement of the trial.

3. The parties, or either of them, and the Independent Children’s Lawyer are granted liberty to re-list the proceedings for mention before a Registrar in the event of issues arising in relation to preparation for trial.

4. The Independent Children’s Lawyer is to provide written confirmation to both the Family Report writer and the Chapter 15 Expert Report writer within fourteen (14) days from the date of allocation of trial dates in respect of them each being required for cross-examination at trial.

5. The Applicant is to provide to the Respondent not less than twenty-eight (28) days before the commencement of the trial a draft Chronology setting out the Applicant’s contentions as to relevant dates and matters and the Respondent within a further fourteen (14) days is to insert into that Chronology the Respondent’s responses and the relevant dates and matters contended by the Respondent.

6. The Respondent is to then cause the draft Chronology to be forwarded to the Independent Children’s Lawyer, who is to insert any other further relevant dates and matters as he regards as appropriate into the document.

(10)The Independent Children’s Lawyer is then to cause the completed Chronology to be forwarded to the Court for filing not less than seven (7) days prior to the commencement of the trial.

(11)Each party file and serve an outline of case document not less than seven (7) days prior to the commencement of the trial setting out:

a.a precise Minute of Orders sought;

b.a list of documents to be read in their case;

c.a brief summary of argument touching upon the matters set out s 60CC of the Act with reference to the relevant evidence relied on;

d.a list of authorities to be relied upon.

(12)The proceedings be listed for a readiness check before a Registrar on a date to be fixed.

NOTATIONS

a.It is noted that the maternal grandparents have each given oral undertakings in Court today, outlining their undertakings in Court’s Exhibit B (annexed hereto), subject to Order 3 above.

b.It is noted that the following witnesses are to be called on behalf of the parties:

1.Applicant: Herself and maternal grandparents.

2.Respondent: Himself only.

3.Family Consultant and Chapter 15 expert.

c.It is noted that the parties anticipate that the final hearing will take approximately five (5) days.

IN CHAMBERS IT IS ORDERED THAT

(13) Noting that the parties and the Independent Children’s Lawyer yesterday agreed to the child engaging in counselling with Dr D, the father is to make arrangements for the child to engage in counselling with psychologist Dr D to deal with the emotional and psychological impact of these proceedings.

(14) In the event of any applicable setting down and/or hearing fee not having been reduced on the basis of financial hardship, the Applicant and Respondent shall pay any such fee equally no later than twenty-one (21) days after the allocation of trial dates by the List Clerk.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hammond & Hammond has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1867 of 2008

Ms Hammond

Applicant

And

Mr Hammond

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction & Background

1. This matter concerns A (“the child”), who is eight years old.  The child’s parents, Mr Hammond and Ms Hammond, were married in November 2004 and separated in April 2008.  The child is their only child.  The father also has a child, P, who is now aged 12 years, who lives with his mother and spends time with the father on alternate weekends.

2. The child’s parents have been engaged in litigation concerning the child for much of her life.  Following proceedings completed in May 2010, parental responsibility for the child has been with both parents, the child has lived with her mother and spent various periods of time with her father, generally five – or, at one period, six – nights per fortnight.  There have also been periods where she has not spent any time with her father. 

3. In this application, the father seeks sole parental responsibility for the child, an order that she live with him and that she spend no time – or supervised time only – with her mother.  The mother opposes the application and seeks that the current interim arrangements continue.  The Independent Children’s Lawyer submits a compromise position, that it is in the best interests of the child for her to spend more time with her father than under the current regime, but something less than what the father proposes.

The Uncontested Facts

1. On 10 April 2008, the parents separated.  In April 2008, the mother commenced proceedings, which were determined in May 2010. 

2. Prior to the determination of those proceedings, the father commenced contravention proceedings and the mother was found to have contravened the relevant Orders and make-up time was ordered. 

3. Young J determined the first proceedings on 9 May 2010, with final Orders providing that the child’s parents have equal shared parental responsibility for her, that she live with the mother and spend time each alternate weekend with the father – effectively, six nights in the fortnight.

4. In those proceedings, the mother contended that the father had been sexually inappropriate with the child.  Young J was not satisfied that that conduct had occurred. 

5. In July 2011, the father initiated contravention proceedings, alleging that the mother had failed to facilitate the child’s time with him during two holiday periods in 2011.  This application was served on the mother in August 2011.  In November 2011, the mother initiated the current proceedings in the Federal Magistrates Court, as it then was.  The father also amended the contravention application to include a third holiday period for that year.

6. On 12 March 2012, Halligan FM, as he then was, found the mother had contravened the relevant Orders.  The mother was placed on a good behaviour bond for 12 months and make-up time was ordered, being an additional overnight each alternate week for a 12 month period.  The bond expired in March 2013.  Following this, there was another period where the child did not see her father as her mother did not permit this, though there is a dispute over how long this occurred.  The mother originally said it was for one month; today, she agrees it was about two months; and the father says it was for three months.

7. In May 2012, the father filed a Response indicating the orders he sought.  In March 2013, on the first day of the Less Adversarial Trial, Johnston J ordered a family report be prepared.  On 17 June 2013, Johnston J ordered a Chapter 15 expert report in relation to any risk of harm that the father may present to the child and the management of that risk, if it existed.  On this occasion, his Honour also varied the time that the child spent with her father, reducing it to three nights per fortnight and restraining the father from allowing the child to come into contact with his son, P.

8. On 27 and 28 June 2013, Dr E, the expert, carried out interviews and assessments for the purpose of her report.  Dr E’s report was released to the parties on 22 August 2013. 

9. On 2 September 2013, Johnston J made interim Orders and gave trial directions and increased the time the child spent with her father to four nights per fortnight, but the father continued to be restrained from allowing the child to come in contact with his son, P.  On 10 December 2013, the father filed his trial affidavit and, on 12 December 2013, the mother filed her trial affidavit.

10. There remain many matters in dispute between the parties and the mother still alleges some form of risk of sexual harm posed by the father, including harm arising from the matters that were dealt with by his Honour Young J in 2010, as well as current matters.  The mother also gives lengthy and detailed evidence concerning the issue of sexual misconduct by P in the course of what is referred to as “the spider game”.  At the time, P was approximately 10 years old and the child was around six.

11. This application is based almost entirely upon the Family Consultant’s report dated 25 November 2013 and released to the parties on 17 December 2013.  The father also relies upon the report of Dr E, the Chapter 15 expert, and upon his trial affidavit.  The mother relies upon her trial affidavit.

The Family Consultant’s Evidence

1. The Family Consultant interviewed each of the parents and observed the child’s interaction with each parent.  She also read all of the documents filed in these proceedings, the Judgment in the previous proceedings, Dr E’s report and had regard to the Children’s and Parents Issues Assessment report, together with documents produced on subpoena by a therapist engaged with the child, the child’s school and the Department of Family and Community Services.

2. In her evaluation, the Family Consultant described the conflict between the parties as appearing to be toxic and to have increased, which has noticeably impacted upon the child.  The Family Consultant said the child presented as a child with serious psychological and emotional issues, and that some of the long term impacts of being exposed to conflict were already being observed in her, such as poor social relationships, poor problem-solving skills, poor self-esteem, depression and anxiety.

3. The Family Consultant said that it appeared the child’s relationship with the father had been interrupted several times over the years and is of the opinion it is remarkable, given the history, that the child and the father presented as having a strong and established relationship, which she considered to be likely due to the quality of his parenting capacity.  The withholding of the child from the father and the history of contraventions indicated to the Family Consultant that the mother is unwilling to support the child’s relationship with the father and she has purposefully sought to interfere with their relationship.

4. The Family Consultant was concerned about the mother’s presentation as being highly volatile and that her mood changed suddenly throughout the interview and observations.  At times, the mother refused to answer questions directly.  The mother appeared to the Family Consultant to be preoccupied with the child having been sexually abused and the father’s perceived actions, and repeatedly spoke about those matters and was unwilling to accept that the father had not sexually abused the child.  The essential issue, from the mother’s perspective is the history of P and the child’s relationship, which appeared to be based on P sexually abusing – the term the mother uses – the child and the father’s perceived lack of response.

5. The Family Consultant felt that, on the basis of the reports from both parents, the incident was more in line with sexual exploration on P’s behalf, rather than a desire to harm or exploit the child.  The Family Consultant felt that the father’s stated report about how he managed the situation was appropriate and protective.  Of significance, the Family Consultant felt that the child herself did not appear to be currently concerned about P and did not appear to recall the sexual incident and, in contrast, appeared to be pining for a relationship with him.

6. The Family Consultant was of the opinion that the mother appeared to have little insight into how her presentation at the family report interview might have been affecting the child.  The Family Consultant said that the mother spoke in a hostile manner in front of the child several times throughout the day and appeared to have significant difficulty managing her emotions in front of the child.  The Family Consultant said this was similar to statements the child made about her experience of the mother.

7. The Family Consultant was significantly concerned about the child’s presentation, describing her as having a flat affect at times and at other times appearing to be anxious and sad, and noted that she cried several times throughout the interview.  The Family Consultant was concerned that the child reported that the mother frightened her at times and expressed the opinion that the child appeared to be suffering as a result.  The Family Consultant noted that the child also spoke to Dr E about the mother yelling.

8. The Family Consultant was extremely concerned that the child described to her that she had shut herself off in a cupboard when she felt sad or wanted to be alone.  She felt this may indicate that the child did not feel she could approach the mother for comfort when she felt sad and instead sought to isolate herself, and felt this was likely to cause the child significant problems regarding her own skills to regulate her emotions and identify resources she can and should access when she needs help.  The consultant felt the child reporting watching DVDs in the cupboard may indicate that the child is dissociating to some extent or finding comfort in an activity that she normally did with her father.  The consultant described this kind of behaviour as concerning, as it indicates the child is experiencing serious distress, and perceives that the mother is not available or able to assist her. 

9. The Family Consultant said the child’s presentation during the observation sessions with her father was in contrast to her presentation with the mother.  She said the child appeared relaxed and to enjoy her games with the father, and smiled and laughed during the interactions with him, and also appeared somewhat clingy, particularly at separation.  It was noted that the child thought she needed to be fair when expressing her views, however, she said she felt the happiest when living with her father and her half-sibling, P.

10. The Family Consultant is of the view that the parents are unable to co-parent the child and recommends that the Court consider orders whereby the child lives with one parent and spends little or no time with the other.  Although the child appeared, in the opinion of the Family Consultant, to have an established relationship with both of her parents, the nature of her relationship with her mother was, in the opinion of the consultant, concerning.

11. With regard to the ongoing allegations raised by the mother that the father and paternal grandmother were sexually inappropriate with the child, it was noted by the Family Consultant that there did not appear to be any new allegations in this regard, the previous ones having been dealt with in 2010, other than the child possibly having ongoing health issues, and it is recommended that the doctors’ advice be followed to manage this issue. 

12. The Family Consultant then said the following:

    74. If [the child] continued to live with [the mother], it is considered likely that [the mother] would not accept further Orders made by the Court regarding spends time arrangements, particularly if she considered that [the child] was at risk of sexual abuse, which is a belief she appeared to hold strongly, despite the judgment of Young J and despite receiving expert advice on the matter.  [The mother] appeared to be unwilling to accept the information she has received in this regard. 

    75.Given the history of contraventions, [the mother’s] presentation, concerns regarding [the child’s] well-being, [the child’s] views, the conflict between the parties and the ongoing pursuit of sexual abuse allegations against [the father], which have been proven unfounded, the Court may need to consider a change of residence for [the child]. 

    76.Unless the Court found that [the father] was emotionally abusive to [the child] and [the child’s] report of her experience of [the mother] was found to be false, it is recommended that [the child] live with [the father]. 

    77.It is considered that, given [the child’s] observed relationship with [the father] and her stated views, she would successfully adjust to a change of residence.  [The father] appeared to be sensitive to [the child’s] needs and appeared to be able to prioritise her needs.  However, it is considered that the Court would need to be cautious regarding it spends time with arrangements. 

    78.If the Court made Orders regarding a change of residence, there is significant concern that [the mother] would not accept such Orders.  It is possible that she would withhold [the child], remove her from school, or would seek to undermine [the child’s] relationship with [the father].  It is also possible that [the mother] may become volatile and unpredictable in the face of a decision that is not favourable to her and there is some concern that [the child] may be physically and/or psychologically hurt if this occurred. 

    79.There were no concerns raised during the observations of [the father] with [the child] and [the child] did not raise any worries or concerns about him.  [The mother] alleged that [the father] was emotionally abusive to [the child] because he told that it was either [the child’s] fault or [the mother’s] fault that she was not able to see [P],  however, [the child] appeared to be genuinely unsure as to why she could not see [P] at [the father’s] home.  [The father] denied this allegation, however, this is a matter for the Court’s determination.

13. In the final paragraph of her report the Family Consultant said:

    Given the parties’ history, their acrimonious relationship and the high conflict between them, it is considered that an equal time arrangement, or anything close to it, would be untenable and not in [the child’s] best interests. Based on the information available to this assessment, [the father] appeared to have a greater parenting capacity and to be the parent willing to facilitate [the child’s] relationship with [the mother]. …

Submissions

1. The submissions of the father were essentially to adopt the recommendations of the report.  The father submitted that until the report was released he was unaware that matters were so serious for the child in the mother’s home and was particularly concerned about the mother’s erratic behaviour and the child’s response.

1. It was submitted that the father is aware that any order involving no time with the mother is an extreme order but he is concerned about the mother’s volatile and unpredictable behaviour and about what may happen to the child if the mother does not get what she wants.

2. On behalf of the mother a number of submissions were made.  Firstly, it was submitted that the opinions and evaluation of the Family Consultant are fundamentally flawed because she is not an expert in the appropriate field of expertise, being child abuse and especially sexual abuse.  It was further submitted in relation to this, that the report was flawed because the Family Consultant should have considered the reasons for P behaving in the way he did and that she is lacking the expertise required to give an assessment of the parenting of a child who is the victim of child sexual assault.

3. In my view, the report is not flawed in this way as the Family Consultant is a qualified psychologist.  It is my view that the report writer does not need the further expertise that was suggested and, particularly, it would have been entirely inappropriate for the psychologist to have considered the issue of the reasons why P behaved in the way he did for the purpose of this report.

4. I do note, however, that both the Family Consultant and the Chapter 15 expert felt that there was nothing overly concerning about P’s behaviour when looked at in its totality and in light of his age.

5. In any event, even if it were to be the case that the Family Consultant should have some particular expertise in the area of child abuse and sexual assault, in my view her Curriculum Vitae sets out that she does have relevant additional expertise in that between 2008 and 2010 she was a Child Protection Coordinator for a government department and delivered state-wide training for that department on child protection and sex offending.  She also conducted psycho-social risk assessment on child sex offenders and violent offenders with child victims.  She has also been a sexual assault counsellor and has also been a child protection case worker.

6. It was secondly submitted that so far as some of the events upon which the Family Consultant bases her opinion are concerned, (and the example was given and, indeed, this example was referred to a number of times - where the child alleged that the mother had been smashing windows,) it was submitted that the Court should not attach any weight to the opinion expressed because it would need to be proven that this event had occurred.

7. There are some incidents and some matters which were reported, in particular by the child, which I would agree the Court would have to be satisfied had occurred, before attaching weight to them but, on balance, in my view, these play a relatively minor part in the assessment of the Family Consultant.

8. It was submitted that there was no evidence of a risk of harm in the mother’s home.  In making submissions about the factors relating to alleged harm in the mother’s home, there was a focus on events such as the breaking windows allegation and whether it did or did not occur.  It appears to me that the mother, in her submissions, missed the point that the significant harm that the Family Consultant was referring to is emotional harm.

9. I also note, in relation to the issue of the truth of the underlying allegations, that the Family Report itself says, in the statement of strength and limitations, that the assessment is limited in that the information gathered can be relied upon only to the extent that the parties are truthful.

10. The conclusions that the Family Consultant draws in her report do not relate simply to events said to have occurred in the mother’s home but arise from a combination of factors.

11. The conclusion about emotional harm arises from a number of factors, many of which are not in dispute, including the very high level of conflict between the parties, which the Family Consultant described as toxic and has increased and noticeably impacted upon the child.  Both parents do not seem to dispute that this child is at the heart of a particularly bitter dispute and that there is a high level of conflict and it is also noted that this was the chief matter of concern for Dr E.

12. The second factor leading to the conclusions about emotional harm relate to the fact that the child’s relationship with her father has been interrupted several times over the years.  Again, it is not in dispute between the parties that there have been proven contraventions committed by the mother in these proceedings and it is also common ground that almost as soon as the bond was completed, the mother again withheld the child from the father for a period of at least two or three months, on his version, but even on common ground for a period of two months.

13. From the withholding and the periods of the interruption of the relationship, the Family Consultant concludes that the mother is unwilling to support the relationship with the father and has purposefully sought to interfere with it.

14. The third basis upon which the Family Consultant made conclusions, which do not relate to matters reported to her by the child, relate to the mother’s presentation to the report writer.  She was described as appearing, to the report writer, as highly volatile and having sudden mood changes.  The report writer referred to the conclusions she drew from the mother’s failure to understand the impact of her behaviour, even at the assessment where she spoke, in a hostile manner, in front of the child several times.  It was conceded by the Family Consultant that that was not directed towards the child personally, but the mother also appeared to have significant difficulty managing her emotions in front of the child.

15. In this regard, the Family Consultant did concede that the mother did present in a different way to other experts and referred, for example, to her presentation to Dr E.  However, the Family Consultant referred to the different context in which the mother was presenting to Dr E and the focus of that assessment, which may have been less confronting for the mother.

16. The other matter which does not seem to be a matter of dispute and does not rely upon matters relayed by the child, is what is referred to as the preoccupation by the mother with the child at having been sexually abused and repeatedly speaking about it and, combined with this, her unwillingness to accept that the father had not abused the child, despite it having been found not to have occurred in the first proceedings and also despite the risk assessment or low level of risk posed by the father, according to the expert report.

17. I am of the view that there is quite a deal of evidence that suggests that the mother is preoccupied with this issue and it is interesting to note that in her own affidavit (and it was a matter that was submitted in her favour by her legal representative, suggesting that the child does still reveal matters of concern to the mother,) that that topic upon which the mother says that the child recently revealed her feelings is yet another dimension of the alleged sexual abuse.

18. The other reasons that the report writer drew the conclusions she did related to the child’s presentation and being described as flat and anxious and sad; which is also consistent with Dr E’s report.

19. It has been submitted by the mother that this presentation is not consistent with harm being perpetrated within the mother’s house.  However, I note that in the report the child is said to have reported that her mother has frightened her and the Family Consultant noted that this was consistent with the concerns expressed by Dr E to the effect “Mummy yells all the time and mummy screams down the phone at daddy and hangs up on the phone when I’m having a private conversation.”

20. Overall, it is submitted that the Court attach very little weight to the Family Report.

21. In my view, I should attach significant weight to it for a number of reasons.  As I have already indicated, the report writer is a psychologist and also is a psychologist with some expertise in the area of sexual assault and child abuse.  She had access to a very wide range of documents.  The focus of her report was not, in comparison, for example, to Dr E’s report, merely about the specific dimension of risk posed by the father, but all matters in relation to the best interests of this child.  It was also based on her own observations and she referred, in places where her observations and her expertise were confirmed by other material.  It is also a very recent report and it includes in it many documents filed throughout the period.

22. The submissions made on behalf of the Independent Children's Lawyer were that the Court should approach the application with a great deal of caution and particularly because it presents as such a dramatic change in the child’s life. The Independent Children's Lawyer correctly noted that being a parenting application the court has to have regard to section 60B of the Family Law Act 1975 (“the Act”) and also, in particular, to the section 60CC factors.

23. It was submitted by the Independent Children’s Lawyer that the report was untested and that only little weight should be attached to it.  I have already indicated my reasons for attaching significant weight to it but, of course, in saying that, I still have regard that it is untested and that some of the matters, though, in my view, really only a small number of the matters, depend upon the underlying facts themselves also needing to be established.

24. The Independent Children's Lawyer referred to the multitude of allegations made in respect of both households and submitted that the main concern was the risk of harm that arose because of the proceedings themselves and because of the highly conflicted nature of the relationship between parents.

25. In my view, the Family Report goes beyond that.  Certainly in Dr E’s report the author is most concerned about the emotional harm to the child and believes that it is as a result of the conflict from the proceedings, but the Family Report goes further than that and is concerned that the emotional harm arises because of the mother’s lack of insight into her own behaviour, the mother’s preoccupation with the issue of sexual assault, the mother’s failure to facilitate the child’s relationship with her father and the indications that she is not emotionally available to the child and that these are the reasons for the child’s high level of psychological distress.

The Law & Discussion

1. The relevant principles to be applied in relation to parenting, including interim proceedings, are set out in Goode & Goode[1].  In applying the law to the uncontested facts, the Court must uphold the relevant objects and principles in the Act dealing with parenting. The objects that have particular relevance here, are to ensure that the best interests of the child are met in particular ways, such as ensuring the child has the benefit of both of parents having a meaningful involvement in her life to the maximum extent, consistent with the best interests of the child, and ensuring the child is protected from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence, and there are underlying principles, which again contain some of particular relevance in this matter.

   [1] (2006) FLC 93-286, [2006] FamCA 1346

2. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration and the best interest factor or considerations are those set out in section 60CC of the Act.

3. The first considerations listed are referred to as the primary considerations and both of those are very relevant in this matter, being the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

4. The application of the father, as sought if granted, would have a dramatic effect on the relationship between the child and her mother, in particular, and in effect it would be much more difficult to promote a meaningful relationship under those orders.

5. It is not necessarily, I note in this matter, fatal to the relationship because there certainly have been times, and some of them lengthy times, where the father has not seen the child and yet, in the opinion of the Family Consultant and on the basis of her observations and assessment, they have maintained a very good and close relationship.

6. The focus is, of course, on the benefit of a meaningful relationship and there are some concerns about the issue of the benefit of that relationship if it, in fact, is something that is causing harm.

7. As far as the need to protect from harm, the big concern, in this matter is psychological harm and being subjected to abuse and in particular it is alleged emotional abuse on the part of the mother, and as far as the father is concerned, the issue has been raised of sexual harm within his household.

8. As far as the risk of sexual harm is concerned, the father has been assessed as of a low risk for sexual harm to the child in the report of Dr E and I do attach significant weight to that assessment, having regard to that doctor’s expertise and the nature of that assessment.

9. The risks in the mother’s household are concerns about the child being emotionally abused by being isolated, the mother not being available and the mother’s erratic and emotionally abusive behaviour.

10. As I have previously indicated, Dr E identified the main source of risk as emotional harm as well but she felt that was harm arising from the interaction of the parents and their methods of handling the child’s distress.

11. The order proposed certainly would be an order that would give very extensive effect to the need to protect the child from the psychological harm that she is said to be experiencing in the mother’s home and in fact it almost inevitably would reduce the emotional harm arising from the interaction of the parents and their methods of handling the child’s distress because the father’s proposed order would effectively put all of the day to day parenting in the hands of the father.

12. In relation to the views expressed by the child, there is no doubt at all that this child has been impacted by the conflict between her parents and she has repeated that in all sorts of contexts, including in documents that she has completed for school, in reports to Dr E and in reports to the Family Consultant.

13. She has expressed the view that she would prefer to live with her father.  I attach some weight to her view but not significant weight given her age and I am also quite concerned that she had a sense that she needed to be fair, though this appears to be a perception that might have influenced her in her attitude towards her mother’s home where she says, on balance, that she would prefer to live with her father.

14. In terms of the relationship between the child and each parent, it is described as an established relationship with both parents, though the Family Consultant had greater concerns about the nature of the relationship with the mother.  In fact, significant concerns.

15. There are other significant adults in the child’s life and she spoke with particular affection about her maternal grandfather and there is also reference to time she spent in her grandparent’s home.  The father’s application does not allow particularly for this relationship, but there is no reason why he could not agree to this on conditions that he finds suitable, such as if the mother was not present.

16. Of course, in the mother’s proposal, that relationship can be, and is, facilitated.  One of the big factors in this case is – in the sense that it’s a factor to which I attach great weight – is the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.  In that regard, I refer to those portions of the Family Consultant’s report that express concern about the mother’s willingness to facilitate the relationship with the father as demonstrated in particular by the separations in the past, for which she was found to have contravened Court Orders without any reasonable excuse.

17. In terms of the likely effect in the change in circumstances that would come about by the father’s proposal, as I say, I certainly approach this with great caution, because the order that is being sought is a very dramatic one.  As far as the relationship with the father is concerned, it is the opinion of the Family Consultant that, given the child’s observed relationship with her father and her stated views, she would successfully adjust to a change of residence.

18. The Family Consultant described the father as someone who appeared to be sensitive to the child’s needs and appeared to be able to prioritise her needs.  In terms of the separation from her mother, I would have to say, I would be quite concerned about that, considering that the mother has been the primary caregiver, notwithstanding the issues in relation to the quality of that care that are raised by the Family Consultant, and I am very concerned that the order that the father is seeking involves no contact with the mother.

19. In relation to the practical difficulty and expense of the child spending time with and communicating with the other parent, on the father’s proposal, being the dramatic one described, there would be no spending time with or communicating with the mother.  On the mother’s proposal, the current arrangement would simply continue as it is. 

20. I do not know about what the practical difficulty and expense would be if the Court were to make an order that there be some time with the mother (if the child were to change residence and live with the father).  It is simply something that hasn’t yet been explored, except there were statements from the bar table about long waiting lists at contact centres and matters of that kind. 

21. In relation to the capacity of each parent to provide for the child’s needs, again, this is matter which, in my view, has great significance in this matter.  In particular, the issue of the capacity to provide for the child’s emotional needs.  I refer to the concluding paragraph of the Family Consultant’s report that the father appeared to have the greater parenting capacity. 

22. In relation to the mother’s capacity, I refer in particular to the issue of the fixation on sexual abuse.  As I noted earlier, it was interesting that it was put forward by the mother as an example of the fact that she is emotionally available to the child and able to offer her comfort and talk to her about matters of concern, that she relays an incident which she says occurred on 18 November, where the child is said to have revealed more extensive and certainly more concerning features about the alleged incident of sexual harm or of a sexual nature with P. This is at a time where Dr E, who prepared her report in August 2013, said that:

    [The child’s] current descriptions of her relationship with [P] indicate that she no longer feels troubled by the incidents in 2010.

23. Even more so, when the Family Consultant interviewed the child, she said she did not appear to have any memory of the spiders game, and yet, the mother says at approximately the same time, in fact a week after, the child is telling the Family Consultant that she has no memory, she is having the child – according to her evidence - spontaneously giving far more graphic details of this alleged incident.

24. Returning for a moment to the likely effect of any change in the child’s circumstances, the Court knows about the effect of there being no contact with P and under the father’s proposed order, the order prohibiting the father from allowing P to come into contact with the child would be removed.  The child described by the Family Consultant as pining for him and missing him.  I also note that it even seems to be acknowledged by the mother, and I must say I cannot quite understand why this was organised in light of the rest of her evidence, that she even organised for the children to have contact.  Now, I am not sure why it is that P poses no risk to the child if it is contact organised by the mother and yet the father has been required to agree, or an order has been put in place, so that he is not to facilitate P coming in contact with the child.

1. Certainly, the other evidence from Dr E and from the Family Consultant about the relative lack of seriousness of the incident relating to P, especially given his age and all of the circumstances and the appropriate way in which both experts conclude that the father handled it, it does not seem to be appropriate for such an order to continue, especially since the mother, has herself, facilitated contact.

2. There are, in my view, no particular issues that arise in relation to subparagraph (g) under 60CC of the Act. We are not dealing with an Aboriginal child and the only other remaining factors that seem relevant are the attitude to the child and responsibilities of parenthood demonstrated by each parent. I think that both parents are conscientious parents and do their best but the issues of biggest concern in this matter are more the lack of the mother’s own awareness of the risk that she poses of emotional harm, which does fall to some degree within responsibilities of parenthood, but really has been covered in the other relevant factors.

3. The issue of family violence I do not think is really a matter of main concern.  Technically, an allegation about making the child feel frightened and the breaking of the windows would fall within that definition.  That is simply one of the incidents related by the child to the Family Consultant and, in my view, whether it did or did not occur is not really a matter of great significance and cannot be determined in these proceedings in any event.

4. Taking all of these matters into account and considering the weight I attach to the Family Consultant’s report, I am of the view that it is in the best interests of the child to reside with the father.  The biggest risks that arise, currently, are issues of emotional abuse and, in my view, the far greater concern is that it arises in the mother’s household. 

5. As far as the issue of parental responsibility is concerned, the father is seeking an order of sole parental responsibility. There is a matter which must be considered and that is that under section 61DA of the Act, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.

6. However, the Court is not required to make such an order on an interim basis of the Court considers that it would not be appropriate in the circumstances for the presumption to be applied and, in this case, bearing in mind that it is an interim hearing and that a number of the matters that relate to parental responsibilities are simply not known.  In my view, it is not appropriate to apply that presumption.

7. So far as the presumption is concerned, this is a matter where there is clear evidence that these parents are not able to cooperate.  There has been a long, documented history of many- many years of them failing to be able to cooperate and communicate, even on the simplest of issues and the high level of conflict, of itself, causing harm to the child.

8. In my view, in those circumstances, parental responsibility should not be shared and should be allocated to the parent with whom the child is living, as that is the parent that will have the main responsibility for day to day issues as well as those other issues that may come up in the interim, and accordingly, I allocate sole parental responsibility to the father.

9. I am concerned, however, particularly in light of the factor of the likely effect of the change in circumstances and the nature of the relationship of the child with her mother about the issue of the benefit to the child having a meaningful relationship with both of the child’s parents.  Notwithstanding the concerns raised by the Family Consultant, I am not of the view that it would be in the child’s best interests to have no contact with her mother and I think it is appropriate for an order to be made.  However, that raises a practical issue in the circumstances that it will need to be supervised. 

10. So the orders of the Court are that the father has sole parental responsibility for the child, and that I will mark that order that has been handed up as Court’s Exhibit “A” and make orders in terms set out in that document.

11. Therefore, the mother’s time is to occur at the maternal grandparents’ home or such other location regarded as suitable by the maternal grandparents.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 18 December 2013.

Legal Associate:      

Date:    24 January 2014