Harkiss and Beamish
[2011] FMCAfam 927
•6 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HARKISS & BEAMISH | [2011] FMCAfam 927 |
| FAMILY LAW – Parenting – allegations of unacceptable risk of abuse – allegation of psychological risk to child – issues with Expert evidence. |
| Evidence Act 1995, s.140 Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 64, 65DAA, 67N Federal Magistrates Court Rules 2001, r.15.09 |
| B and B [Access] (1986) FLC 91-758 B and B: Family Law Reform Act 1995 (1997) FLC 92-755 Briginshaw v Briginshaw (1938) 60 CLR 336 Brown and Pedersen (1992) FLC ¶92-271 Leveque v Leveque (1983) 54 BCLR 164 M and M (1987) 11 FamLR 765 McKee v McKee (1951) AC 352 MRR v GR [2010] HCA 4 N and S and the Separate Representative (1996) FLC 92-655 Re G (a minor) (1987) 1 WLR 1461 Re W Abuse Allegations; Expert Evidence (2001) FLC 93-085 Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768 Reynolds v Reynolds (1973) 47 ALJR. 499 S v S [1993] NZFLR 657 TF and JF and Children’s Representative [2005] FamCA 394 V and V [2004] FamCA 1081 W and W (abuse allegations: unacceptable risk) [2005] Fam CA 892 WK v SR (1997) 22 FamLR 592 |
| Applicant: | MR HARKISS |
| Respondent: | MS BEAMISH |
| File Number: | WOC 553 of 2010 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 24-27 May 2011 & 8-9 August 2011 |
| Date of Last Submission: | 9 August 2011 |
| Delivered at: | Sydney |
| Delivered on: | 6 October 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Steward |
| Solicitors for the Applicant: | R & M Legal Solicitors & Attorneys |
| Counsel for the Respondent: | Mr Millar |
| Solicitors for the Respondent: | Dobinson Davey Clifford Simpson |
| Counsel for the Independent Children’s Lawyer: | Mr Maurice |
| Solicitors for the Respondent: | Williamson Isabella Lawyers & Public Notaries |
ORDERS
That the parents have equal shared parental responsibility for making decisions about the long term care, welfare and development of the Child [X] born [in] 2008.
That the Child lives with the Mother.
That within 48 hours of receiving his work roster, the Father is to nominate to the Mother in writing by email (to an email address that the Mother is to nominate within 7 days of the date of these orders) the dates on which he proposes to spend time with the Child pursuant to these orders. If, for any reason, the Father becomes unavailable to spend time with the Child pursuant to his nomination under this order, he must inform the Mother by email or SMS message as soon as possible after he becomes aware of his unavailability.
That the Father is to spend time with the Child as follows:
(a)For four visits after the commencement of these orders, for four hours each visit, not more than once per week;
(b)For a further four visits thereafter, for six hours each visit, not more than once per week;
(c)Until 3 December 2012, for eight hours each visit, not more than once per week;
(d)From 3 December 2012, for two days and one overnight weekly, commencing at 9:00am on Day 1 and concluding at 5:00pm on Day 2;
(e)From the first weekend after the Child commences school, from after school on Friday to before school on Monday, and each alternate weekend thereafter.
That the Father spends time with [X] on special occasions and during school holidays as follows:
(a)Commencing December 2011:
(i)From 9:00am on Christmas Eve until midday on Christmas Day in even-numbered years;
(ii)From midday on Christmas Day until 5:00pm on Boxing Day in odd-numbered years.
(b)Commencing Easter 2013:
(i)From 9:00am on Good Friday until 5:00pm on Easter Saturday in even-numbered years;
(ii)From 9:00am on Easter Sunday until 5:00pm on Easter Monday in odd-numbered years.
(c)On the Child’s birthday ([date omitted]):
(i)If it falls on a school day, from 4:00pm to 6:00pm that night; and
(ii)If it does not fall on a school day, from 9:00am until 1:00pm in even-numbered years and from 1:00pm to 4:00pm in odd-numbered years.
(d)From December 2012, during school holiday periods, for one period of two days and one night commencing at 10:00am on Day 1 and concluding at 5:00pm on Day 2; and
(e)From December 2014 during school holidays periods, for one half of each school holiday period, provided that during the December/January school holidays the period is not to be taken in blocks longer than seven days and seven nights.
That until the Child commences school, the Father is entitled to spend time with her even though it may fall on a day coinciding with preschool, but the Father is required to consider the benefits of the Child attending preschool, as well as continuing to attend her scheduled activities during her time with him.
That changeover is to take place as follows:
(a)A supervised contact centre is to be used where it is available.
(b)Where such a service is not available, the parents are to agree to a neutral changeover place, and if the parents are unable to agree, changeover will take place at the McDonalds family restaurant closest to the Mother if the Father is to collect the Child, and the McDonalds family restaurant closest to the Father if the Mother is to collect the Child.
(c)Until 3 December 2012 the Father is responsible for the collection and return of the Child from a supervised contact centre, or the McDonalds family restaurant closest to the Mother.
(d)From 3 December 2012 the Father will be responsible for collecting the Child from the McDonalds family restaurant closest to the Mother at the commencement of contact, and the Mother is responsible for collecting the Child from the McDonalds family restaurant closest to the Father at the conclusion of contact.
That both parents do all things necessary to facilitate telephone communication between the Child and the Father:
(a)Between 6:30pm and 8:30pm on any day;
(b)At any time in an emergency;
(c)At any reasonable request by the Child.
That both parents do all things necessary to facilitate telephone communication between the Child and the Mother at any time as requested by the Child.
That the parents are to use a communication book for the purposes of transmitting information to each other in relation to the Child. The parents are also to forthwith establish an email address that they can use specifically and only for the purposes of communicating in relation to the Child and keeping the other fully informed about matters relating to her.
That the parties must within 14 days contact Relationships Australia on (02) 4221 2000 to arrange an appointment as soon as practicable for an initial post-separation parenting assessment.
(a)In making their appointment, parties are to state that their attendance is pursuant to an Order of the Federal Magistrates Court.
(b)Parties are to cooperate with providing intake information and details to Relationships Australia and must attend the intake appointment at any reasonable location nominated by Relationships Australia and complete the assessment.
(c)If assessed as suitable and Relationships Australia nominates counselling, mediation including child inclusive mediation or a post-separation parenting course to attend, the parties must attend (as the provider directs) as soon as practicable.
(d)The parties shall comply with the requirements of the nominated program and the recommendations of the program coordinator including any referrals to complementary services.
That the mother is to continue to seek treatment from her doctors and psychiatrists in relation to her depression and post traumatic stress disorder, and to strictly abide by the advice given to her in relation to medication and therapy.
That both parents are restrained from:
(a)Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the Child.
(b)Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the Child or permitting any other person to do so.
That any future application between the parents relating to the Child shall first be listed before Federal Magistrate Altobelli, if he is reasonably available, without precluding either parent from applying for Federal Magistrate Altobelli to disqualify himself from hearing the application.
That the parents have liberty to apply before Federal Magistrate Altobelli in relation to the interpretation and implementation of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Harkiss & Beamish is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
WOC 553 of 2010
| MR HARKISS |
Applicant
And
| MS BEAMISH |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about [X] who is two years old. Her father wants [X] to live with him because he says there is a risk that if she remains in the mother’s home she will suffer psychological harm, and his relationship with her will be undermined. [X]’s mother’s case is that she was the victim of sustained violence and abuse during the period she lived with the father, and that the father sexually and physically abused [X]. Thus she says [X] is at a risk of harm in the father’s household, and his time with her should be both limited and supervised. In determining what order is in the best interests of [X] it will be necessary to closely examine the evidence and make findings of fact in circumstances where the evidence is conflicted.
Background
The father is 35 years old and is an [occupation omitted] working full time, and living in the [S] region of NSW. The mother is also 35 years old, is an [occupation omitted] working part-time, and living in the Canberra region. There are different versions about when the relationship between the parents started and ended, and nothing turns on this. What is abundantly clear from the evidence advanced on both sides is that the relationship was a difficult if not tumultuous one which was marked by periods of separation and then resumption of the relationship.
The mother makes very serious allegations against the father, about violence and abuse perpetrated against her, and [X], by the father.
The father denies these allegations and, amongst other things, claims that the making of these false allegations raises serious concerns about the very nature of the mother’s relationship with [X], and that it demonstrates the lack of willingness on the mother’s part to support and encourage [X]’s relationship with him.
The father’s proposal is contained in his Amended Application filed
11 April 2011. He seeks sole parental responsibility, that [X] live with him, and spend time with the mother in accordance with recommendations of the court appointed Expert. This is significantly different to the father’s original Application filed 13 July 2010 in which he only sought orders to spend time with [X].
The mother’s proposal also evolved during the life of the case. Her original Response, and Amended Response filed 18 May 2011, sought sole parental responsibility, that [X] lives with her, and the father to have contact at a supervised contact centre in the Canberra region. By the morning of 9 August 2011, the sixth and final day of the hearing, her proposal had evolved so that after a period of supervised contact in the Canberra area, the father have unsupervised contact gradually increasing in time and not necessarily limited to Canberra. The Minute of Order sought by the mother on 9 August 2011 is reproduced in the Schedule to these reasons.
Indeed, in the mother’s Counsel’s closing submissions her proposal further evolved. If the court was contemplating an interim order rather than a final order, the mother proposed that the father spend time with [X] between 9:00am and 5:00pm, two days per week, for six months, in the Canberra region, supervised by the father’s partner Ms H for a period of two months. Thereafter it would extend to 9:00am on the first day to 5:00pm on the second day weekly, supervised by Ms H for six weeks, and not restricted to the Canberra region. This alternative proposal was expressed to be without prejudice to the mother’s primary contention that there was, is, and continues to be a risk of harm to [X] in the father’s care. It is clear, however, that the mother was advancing a proposal in case the court did not make the findings she was wanting the court to make.
I make no criticism of either parent for amending their proposals, or developing alternative proposals which reflect changes in events, perspectives and evidence. Parenting litigation has a life of its own, running parallel to but not independent of the lives of the protagonists in the litigation. However, the court takes seriously all proposals advanced, and assumes that each parent genuinely believes it to be in the best interests of the child, and is the result of careful consideration and reflection, especially as the evidence in the case emerges.
The Independent Children’s Lawyer’s proposal was that the father have sole parental responsibility, that [X] live with him and have contact with the mother commencing from four weeks after changeover, for gradually increasing daytime hours, and then overnights, and then alternate weekends. The Independent Children’s Lawyer’s proposal is also reproduced in the Schedule to these reasons.
The father was represented at the hearing by his Counsel, Mr Steward. The mother was represented by Mr Millar. [X] was represented by the Independent Children’s Lawyer’s Counsel, Mr Maurice. Whilst this was a difficult, complex case, the court was well-assisted by Counsel.
The main witnesses in the father’s case was the father himself and his partner Ms H. To the extent that other witnesses swore affidavits or gave evidence, their evidence had no impact on the final outcome of the case.
The main witnesses in the mother’s case was the mother herself, the maternal grandmother Ms B, Drs S, Dr L and Dr H and Ms C. The mother’s case also relied on two other affidavits whose deponents were not required for cross-examination.
The witness in the Independent Children’s Lawyers case was the court appointed Part 15 Expert, Ms G, a psychologist. Ms G was extensively cross-examined.
A brief history of the proceedings is useful. When the father commenced this case he had not been spending time with [X] for some time, and in fact could not locate the mother. On 19 August 2010 a location order was made under s.67N(2) of the Family Law Act 1975 addressed to Centrelink. On 21 September 2010, after the parents had attended a Child Dispute Conference, I made an order in chambers appointing an Independent Children’s Lawyer. On 1 October 2010 the mother appeared with her solicitor, and orders were entered into by consent for the father to spend time with [X] supervised by the mother’s sister. On 17 November 2010 the court made orders for supervised time at an agreed supervised contact centre for a period not exceeding two hours weekly. Orders were also made setting the case down for hearing. On 6 April 2011 orders were made by consent appointing Ms G as Expert pursuant to Rule 15.09 of the Federal Magistrates Court Rules 2001. The final hearing commenced on 24 May, running until 27 May 2011, and was then adjourned part-heard to 8 and 9 August 2011.
The Applicable Law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) 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;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) 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;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4 the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
This is a case where it is alleged that the child is at risk of abuse in the father’s care. A comprehensive statement of the applicable law in these difficult cases is contained in the Full Court’s decision in W and W (abuse allegations: unacceptable risk) [2005] Fam CA 892, at paragraphs 92-115. Whilst this extract is lengthy, the law is complex, and the context of these cases is always one of high levels of emotion and concern for the parents and other persons involved. It is important for all who are affected by this case to know what is the relevant law:
92. The High Court’s unambiguous statement in M and M is that a trial Judge should not make a positive finding of sexual abuse unless the high standard of certainty referred to in Briginshaw (now s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”)) is discharged.
Unacceptable risk test
(a) What is meant by “unacceptable risk”?
93. In his submissions before us counsel for the father has referred us to recent decisions of this Court decided after M and M in dealing with cases involving child sexual abuse, and in particular, with the manner in which subsequent decisions have applied the principles enunciated therein.
94. Prior to our consideration of these decisions we find it appropriate, as a starting point, to re-state what may be regarded as obvious, that is, the significant detrimental harm to a child who is sexually abused. Although contained in a dissenting judgment, the discussion of Fogarty J about the effect of sexual abuse on a child remains as poignant and relevant as it was in 1996. In N and S and the Separate Representative (1996) FLC 92-655 at 82,709 his Honour said:
“(i) The reality of sexual abuse
The sexual abuse of a young child by a parent or care-giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur. Regrettably, the actuality is otherwise.
...
It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.”
95. We also have regard to Fogarty J’s acknowledgment of false allegations. At 82,711 his Honour, referring to Thomas J’s judgment in S v S [1993] NZFLR 657, said:
“courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.”
96. The core principles in the determination of a case of alleged sexual abuse are those enunciated by the High Court in M and M:
“In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec. 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec. 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 A.L.J.R. 499; 1 A.L.R. 318; McKee v. McKee (1951) A.C. 352 at pp. 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 C.L.R. 447 at pp. 450, 458, 462, 463-464.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’
His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a ‘risk of serious harm’ (A. v. A. (1976) V.R. 298 at p. 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC ¶91-830 at pp. 76,240-76,242; (1987) 11 Fam. L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B [Access] (1986) FLC 91-758 at p. 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
97. An examination of cases in Australia following M and M and subsequent to the amendments to the Act by reason of the Family Law Reform Act 1995 (“the Reform Act”) demonstrate some of the practical difficulties in applying the principles enunciated in M and M.
98. In B and B the trial Judge was found by the Full Court to have correctly applied the Briginshaw test in reaching his finding that the father had acted in a sexually inappropriate way with the children the subject of the application, and then considering that the children should continue to have access (as contact was then defined) to the father, such access to be supervised for a defined period with provision for a further expert report. In their joint judgment Fogarty, Baker and Purvis JJ at 79,778 discussed the relevant principles to be applied in a sexual abuse case having regard to the High Court’s decision in M and M. Their Honours said:
“The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is:-
‘that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.’ (at page 77,081)
The ‘unacceptable risk’ test is therefore the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access’. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
...
It should be noted that the M and M ‘unacceptable risk’ test is employed within the context of ‘resolving the wider issue’, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be ‘subservient and ancillary’. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act and Brown and Pedersen (1992) FLC ¶92-271.”
99. Their Honours further commented on the fact that a finding of unacceptable risk in respect of unsupervised contact did not “preclude a finding that there is no unacceptable risk to the child if supervised contact is ordered”.
100. One of the issues in B and B was whether an order for supervised contact by a family member or friend was appropriate. The Full Court’s findings on supervised contact have been subject of criticism in subsequent cases (see Re C and J at 83,341 and 83,342 per Fogarty and May JJ). The discussion in the latter case on types of supervision and treatment are particularly apposite in this case.
101. It is however important to note at the time of both decisions the availability in Australia of professionally supervised contact in accredited children contact centres was not widespread, the Commonwealth Government funding the first pilot of 10 children’s contact centres commencing in 1995-1996 through its Family Relationship Service Program.
102. In K v B the father asserted that the trial Judge had not applied the appropriate test in determining whether an unacceptable risk of sexual abuse existed. The trial Judge found, on the balance of probabilities, he could not be satisfied that the father had sexually abused the child, and went on to find however that he could not be satisfied he did not do so. The trial Judge then determined, after looking at the evidence as a whole, there was an unacceptable risk of sexual abuse if he ordered unsupervised contact. In his dissenting judgment Kay J emphasised the right of a child to maintain personal relationships with both parents on a regular basis and said at 80,967:
“With the greatest respect to their Honours in B and B I have difficulty in seeing how that conclusion can be drawn from the words in M and M. All I read M and M as saying in the passage referred to is that the presence or absence of a risk of sexual abuse is not necessarily determinative of whether access is granted. Other issues such as the effects on the child of having to confront the abuser need to be taken into account.”
103. In N and S allegations of sexual abuse of a 4 year old child were made with the child naming the father as the perpetrator. The father denied the allegation. The trial Judge had before him expert evidence from a child psychiatrist. The trial Judge said that the expert had stated that it was most likely that the child had not been abused by either the father or the mother’s new partner, that the child used accusations to get attention from the mother, and the child was not truthful. There was evidence before the trial Judge of a social worker from a child sexual assault service who believed the child had been sexually assaulted by the father. The trial Judge’s findings on sexual abuse were recorded by the majority (Kay and Hilton JJ) at 82,732 as follows:
“Coleman J, as well as Dr Fairley, concluded that he could not entirely discount the possibility that the child may have been sexually interfered with and may have been sexually interfered with by the father. Coleman J concluded on the balance of probabilities that this did not happen. He was not however prepared to conclude that it certainly could not have happened.”
104. Their Honours noted, as in this case, that the appeal was from a discretionary judgment, and the relevant principles to be applied in such a case. They then (at 82,740) referred to the passage in M and M (set out by us in paragraph 96) and said:
“Whilst the High Court did not further expand on what circumstances might create such an unacceptable risk, Coleman J, weighing up all the material before him, concluded that there would be no such risk to the child during the proposed six month access trial.”
105. In his judgment, which was in dissent as to the outcome of the appeal, Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714:
“In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”
106. His Honour went on to discuss the standard of proof necessary for a finding of unacceptable risk. His Honour did not advocate a two step approach, that is, a consideration of whether or not sexual abuse was proved on the balance of probabilities, and a second step of assessing unacceptable risk to the same standard. He expressed the requirement at 82,715 as follows:
“There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.”
107. The Full Court in WK v SR (Baker, Kay and Morgan JJ) at paragraph 48 reaffirmed the consequences to a child in a residence or contact dispute of a finding of sexual abuse proved to the standard required by s 140 of the Evidence Act and held:
“...In these circumstances, evidence which, for example, is relevant and probative in relation to the question of unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incidence of abuse has in fact occurred.”
108. In V and V [2004] FamCA 1081 Finn, Kay and Holden JJ considered specifically s 60B of the Act and whether the benefits of contact for the children outweighed the risks of such contact. In this case the trial Judge found that the children had been sexually abused, but was unable to determine the identity of the perpetrator. The trial Judge refused to make orders for either supervised or unsupervised contact on the basis that such contact would pose an unacceptable risk to the children. Having carefully reviewed the evidence in the case, their Honours set out the submission made by counsel for the Child Representative at paragraph 56 as follows:
“Accordingly it was put by Mr [M] that any finding that the father had in fact been involved inappropriately with these children, or might have been inappropriately involved with the children to the point where he would create a serious danger to the children could only be sustained if the Court had been properly aware of the gravity of upholding such an assertion in accordance with Briginshaw principles. An order for no contact is a grave order which should only be made upon very strong proper supporting evidence.”
109. The Full Court held that the trial Judge was in error in finding there was a real risk of sexual abuse if there was unsupervised contact, having made no positive finding that it was more likely than not that the father was the perpetrator.
110. In TF and JF and Children’s Representative [2005] FamCA 394 May J highlighted that the “concept of unacceptable risk is one that is far from settled in its application to many family situations”. May J, having found that the evidence in the case, “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised...” then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then said:
“Whilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored.”
111. In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
(b) The contact issue
112. In Re W (Sex abuse: standard of proof) at 93,192 and in TF and JF at paragraph 53 the Court emphasised the importance of maintaining a worthwhile relationship between a parent and child, and that termination of such relationship “ought, in most cases, be the course of last resort”. We acknowledge that s 60B emphasises the objects of Part VII of the Act and that generally children have a right to know and be cared for by both their parents. This provision was the subject of discussion by the Full Court in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,213-84,217. The objects provision is, of course, subject to the exception that the provisions do not apply when it is or would be contrary to a child’s best interests.
113. The practical difficulties in assessing an unacceptable risk are highlighted by May J at in paragraph 74 of TF and JF. Further, at paragraph 94, the tension between the protection offered by supervised contact (and the maintenance of a child’s relationship with his or her parent) and that child’s emotional well-being is considered. We have not in our discussion of unacceptable risk canvassed in any detail the question of the impact of contact on the resident parent as it is not relevant in the actual circumstances of this case, nor is E’s emotional well-being in issue.
114. Further we note it is not always possible to provide for appropriate supervision particularly if a children’s contact centre is not a practical option. Centres too have their limitations. The guidelines established between courts administering the Act and children’s contact centres accredited by the Commonwealth Department of Family and Community Services recognise that “long term supervision may not be in a child’s best interests” and place emphasis on the need to move to “self management” by parents and others availing themselves of the present restricted services.
115. We appreciate that the decisions in these difficult cases have the potential for long term consequences for a child, and that they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement. The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.
In WK v SR (1997) 22 FamLR 592 the Full Court emphasised the standard of proof that applies in these cases at para.47:
In children’s matters under Part VII of the Family Law Act, where the issue is a child’s contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
In Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768, in referring to WK v SR the Full Court observed at paras.18 and 19:
18. In setting out those authorities it does not appear that his Honour paid any attention to the views of the Full Court in
WK v SR where the Court emphasised the very high standard by which a Court needs to be satisfied on the balance of probabilities that something has actually occurred. Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.
19. The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to be remain conscious of this imperfection at all times.
In that same decision, the Full Court made some important comments about expert evidence in the context of these cases, at paras.38 and 39:
38. In Re W Abuse Allegations; Expert Evidence (2001) FLC 93-085 Nicholson CJ and O'Ryan J (with whom Kay J agreed on this point) warned of giving weight to expert evidence of a psychiatrist who had not seen the parties nor the children but had reviewed the material. Their Honours said at para 147 "...there are grave dangers in reliance upon expert evidence given in such circumstances."
39. Whilst much of their Honours' rejection of the evidence of the psychiatrist in Re W appears to turn on the fact he was retained by one side and must have brought unconscious bias to his task, in our view the criticism of relying upon an opinion about the ultimate issue from a witness who has not seen the parties nor the children remains just as valid when the witness is called by the court. If an expert witness still purports to give an opinion as to the ultimate issue then such opinion would be expected to be heavily qualified by the expert having regard to the fact that the expert had not seen the parties nor the children.
Another important statement from this Full Court decision is found in paragraph 45. It is important because it is in the interests of the administration of justice, and more importantly in the interests of the children involved in these cases, that sensible concessions be made so that both interim and final hearings can focus on real issues.
45. The concession by counsel in final address that the evidence would properly lead the trial Judge to conclude the much lower barrier of "unacceptable risk" had been reached could not be seen as some sort of admission of guilt by the husband and those appearing for him. It was no more than an acceptance of the forensic reality. The child had made damning disclosures. The father had denied them. All the Court needed to be satisfied of was whether an order for contact "would expose the child to an unacceptable risk of sexual abuse". An acceptance of the husband's unshaken denials would leave the child's disclosures unexplained. An acceptance of the disclosures as proof that the father behaved with gross impropriety towards G would mean a total rejection of the denials. In our view an acceptance by counsel that the likely outcome lay somewhere in between was not surprising nor could it be seen as an admission of guilt.
The Expert’s Evidence
Ms G is a forensic and clinical psychologist appointed with the consent of the parties to be the Part 15 Expert in this case. Her report dated
16 May 2011 was received by my chambers on 18 May 2011 and released to the parties the next day. Her report follows a familiar format, setting out the order for her appointment, sources of information to which she made reference and listing the interviews, assessments and observations made. The report is a very long one (over 100 pages including annexures). The Expert uses strident language throughout her report. As the mother’s case involved a sustained, systematic attack on the weight that should be given to the Expert’s Report, it is necessary to closely examine it, together with the oral evidence given by the Expert personally.
There are a number of observations and conclusions made in relation to the mother that clearly form the basis of the reports’ subsequent summary and conclusions. It is therefore necessary to refer to these. At page 9 under the heading of presentation of the mother the report states:
What became clear as the assessment process evolved, was
Ms Beamish’s repeated messages of victimisation and persecution, and being forced to make the decisions she has made. Although she reported internalising blame for all events in the past, she actually externalised blame for all events to the bad intentions of others, the failure of systems, and demonised
Mr Harkiss [sic] in any way possible.
Many aspects of the information she provided appeared either confabulated, exaggerated, or skewed, to present herself as the naïve and well meaning victim. Much of the information she provided was either in contrast to the information provided previously in documentations, or in contrast with information provided by other sources (which will be outlined below).
As a result, Ms Beamish was not seen to be a valid historian. She appeared to be motivated to portray herself in an overly positive and humanitarian light, as the victim of very serious and at times grotesque abuse. She minimised any problems with family and friends (despite evidence that this was the case, as described below), minimised her own personal limitations and failings (as evidenced below), and magnified any negative aspect of
Mr Harkiss [sic]. She appeared extremely motivated to portray Mr Harkiss [sic] as malicious, malevolent, cunning and manipulative, and took minor pieces of information and skewed these to fit this picture.
Furthermore, Ms Beamish depicted [X] as severely impacted by Mr Harkiss [sic], despite no available evidence to support these notions, and certainly no observations that would be consistent with such extraordinary depictions of behaviour. She at times described [X] as a part of herself, and aligned [X]’s behaviour and affect as that of her own, displaying an enmeshed pattern of relating to [X].
Ms Beamish’s composure was interspersed with periods of apparent distress and fear, which was accompanied by an overall bodily reaction. Despite such a show of emotion, her demeanour was changed quickly. This, combined with evidence that the information provided was either implausible or confabulated, led the expert to the conclusion that Ms Beamish has a heightened ability to create an appearance of distress and fear which is convincing.
As is apparent the Expert refers in the passage above to the information on which she founds her observations and conclusions in relation to the mother. I do not intend to examine this evidence in detail as much of it will be considered elsewhere. I am satisfied that the material in question does for the most part provide a reasonable basis for a conclusion that may include that reached by the Expert. I am not satisfied that the material in question necessarily leads only to the conclusion drawn by the Expert.
The Exert administered psychometric testing to both parents, including a Personality Assessment Inventory (PAI) the mother’s score exceeded the cut-off for profile validity, thus invalidating the test so that no clinical interpretation could be provided. At page 29 the Expert states:
Given Ms Beamish is a woman of at least Average – High Average intellectual functioning, has achieved well in academic pursuits, and is clearly intellectually capable, the interpretation that the test results were invalidated by lack of understanding, poor literacy, or confusion about the questions is improbable. Rather, it could be hypothesised that given an understanding of psychometrics and the ways in which these self-report questionnaires can be used, Ms Beamish intentionally avoided answering certain questions, and provided inconsistent and infrequent responses, so that the psychometric data could not be used.
The mother was cross-examined about this, as was the Expert. I do not accept the Expert’s hypothesis that the mother avoided answering questions to invalidate the test. There is no evidence before me to support that hypothesis, other than the Expert’s own opinion.
The report sets out observations of [X]’s interactions with both her parents, at pages 43-44.
The Expert’s summary and conclusions commence at pages 45-46 where she discusses [X] and her attachments and relationships:
In this matter, the expert had the pleasure of meeting and assessing a very bright and extremely likeable little girl. [X] is 2 years and 4 months old, and presents intellectually and socially/emotionally as a child much older than her chronological age. She possesses a vocabulary which exceeds developmental expectations. She displays a degree of empathy and social understanding that is not usually seen in a child so young. All areas of her development are adjudged to be superior to that of other children her own age. It is without doubt that [X] has been well cared for and provided with appropriate guidance, stimulation, and nurturing. There is no evidence at all that this child suffers from any anxieties or attachment difficulties. In lieu of this, the expert believes that the child is robust enough to cope with changes in her circumstances, if they were to arise.
It is therefore unusual for an expert to consider changing the present context in which the child lives, especially since this child is ostensibly progressing so well. However, as the expert proceeded in assessing this case, she began to formulate an opinion that in this matter, the mother was acting in such a way to deceive other parties, and present information to meet her own goals. A mass of contradictory, and at times what appeared to be fabricated information was presented by the mother, that raised serious concerns for the expert. It caused the expert to question the motives of the mother to vehemently portray the father in such a derogatory and malicious manner. It caused the expert concern that the mother seemed to truly believe such information, even in the face of a lack of evidence, contradiction, and implausibility. Her affect and demeanour was such that the recipient of the information is easily convinced that such materials could actually be true. It is thus concerning for the expert that such behaviour, which if allowed continue, would seriously compromise parenting in the future, and have significant ramifications for the overall development of this child. It is therefore the opinion of the expert, based upon this, that what would be in the best interest of the child in the long-term, is a placement with the father.
The first paragraph contains conclusions about the absence of anxieties and attachment difficulties that are well-supported by the observations made a pages 43-44 of the Report. If one were to read the first paragraph in isolation, one would from the view that [X] had been more than adequately provided and cared for, and was progressing satisfactorily from a developmental perspective.
The second paragraph stands in stark contrast. The expert casts a dark shadow over [X]’s welfare based, in effect, on perceived serious deficits in her mother that threaten [X]’s future parenting and development. These are expanded below. Before explaining this, however, I observe the Expert’s use of quite strident language, e.g. “mass of contradictory, and at times what appeared to be fabricated information”. One wonders whether such strident language was in fact necessary to support the assertion the Expert clearly intended. For one thing it conveys a conclusion of intention to deceive when such conclusion is clearly not the role of the Expert. That is not to deny that one possible finding is of maliciousness on the part of the mother, but there is a range of possible and equally plausible alternative findings that can be made about the mother’s behaviour.
The Expert provides an insight into her methodology at page 46:
In order to arrive at a psychological formulation of how the parties have come to this point in their lives, the expert undertook a longitudinal assessment of the ways in which each party views the world, experiences affect, behaves in various circumstances, and has presented to others. Accordingly, when the expert gathered information about both the mother and the father’s histories and what these histories mean to them now, two different ways of approaching the world were noted. The father, from the available accounts, is a man who has come from a relatively stable upbringing, has had a clear attachment to his own family, and has pursued careers and relationships with commitment. He has a good work history, no criminal history, no psychiatric history, and no evidence of behavioural disturbance. His combative training has resulted in him learning to manage fight in controlled ways, and he displayed a genial demeanour, rather than an aggressive one.
The Expert clearly believes that the father had a stable past. She goes on to discuss the allegations against him, and is clearly quite impressed by him:
The expert noted the allegations made against the father, in particular the allegations of the serious sexual assault against an infant child. Such an act could only be described as particularly heinous, and would be the act of a deranged and emotionally disturbed individual. Child sex offenders do not typically offend against infant children, with such behaviour usually the act of a psychiatrically disturbed individual. Bearing this in mind, and bearing in mind Mr Harkiss’s [sic] personality and background, and given the ongoing contact sought by Ms Beamish at the time, it is probable that such an event never occurred.
From all accounts, the evidence presented to the expert supports the father’s construction of events, commitment to the child, and appropriateness of the father’s involvement in the child’s life. The child, even with disrupted contact with the father, can be seen to have a genuine attachment to him, and understanding of him as someone special in her life. She displays no apprehension, no anxiety, and seeks him out. As is the case in parenting matters (especially when no abuse is evident), the child would be of great disadvantage by the exclusion of her father in her life. Therefore, what is needed is a way in which the father can be involved in the child’s life effectively.
As it turns out, having regard to all the other evidence before me, I accept what the Expert says, though not necessarily for the same reasons. The Expert then considers the mother:
The expert is then left with the conundrum about what this means in relation to the mother’s role. The evidence available to the expert suggests that the mother confabulates and acts with complete disregard to the child’s needs but rather focuses upon her own agenda. Thus far, her agenda has been to demonise the father and portray herself as the vulnerable, protective, and solely responsible parent for [X]. Her objective has been to have [X] completely as her own to fulfil her own need to be completely wanted and loved by another to the exclusion of all others. This agenda has not been inconsistent with the present needs of the child at a day to day level. Indeed, it has been in the mother’s interest in prosecuting her agenda (i.e., demonising the father), to do a good job in parenting [X].
However, if it no longer was permissible for the mother to pursue this agenda, and indeed the father took on an active role in the child’s life without the mother being the centre of his attention, then the evidence is clear that when relationships end, the mother’s behaviour becomes volatile and manipulative. The mother’s own background is one in which she has reported relationship instability, has reported abandonment by others (which are likely to be fabricated rather than based upon reality), and has acted in pathological ways to show herself as an unfortunate victim. Of note, each voluntary admission to psychiatric hospitals appear to have occurred in the context of avoiding something she didn’t want to do (e.g. the investigation into the harassment at work when she was to be interviewed, but the following day showing a remarkable improvement in functioning), or some problem in relationships, either intimate or work related.
The mother, unlike the father, does not have a stable work and relationship background. When events occur which do not go her way, she ‘decompensates’ and creates events to show herself as the victim. Of note, in the matter with [X]’s father, Ms Beamish has began to notice these “pathologies” in [X] (such as banging her head on concrete floors, night terrors, and extreme anxiety) which no one else has seen, but then spontaneously remit when Ms Beamish’s agenda has been met (i.e. the father is no longer present). This has lead the expert to be worried about the mother creating pathologies in [X]; to use her for her own pursuit of an agenda, much akin to what can be develop into Munchhausen by Proxy.
Therefore, how can [X] maintain a relationship with her father under the current circumstances? Do we allow the father to have no place in the child’s life in order to maintain the mother’s sense of ownership and control and thus keep the child safe for now, knowing that this may change when [X] grows up and begins to assert herself as an individual, or [X] also begins to display the same pathology? Or, do we allow the father to control the child’s exposure to the mother on the basis of his stated beneficence?
To answer this, one needs to consider the best interests of the child. [X] is a child who displays a clear attachment to both her mother and father, albeit stronger in the mother for the reasons of having had minimal access to the father. The only way [X] can continue to benefit from an ongoing relationship with both her parents (and continue to develop the secure attachments she needs) is if the father is given control of the access between both parents, rather than the mother. The father is more level-headed, he has sought and used services to make this happen, and he has shown that he has tried to keep contact thus indicating he will continue to do so in the future.
As it turns out, having regard to all the other evidence before me, I accept the Expert’s conclusion that the mother confabulates, but as will be seen, I disagree that it is intentional and malicious. Nonetheless the first paragraph in this extract makes the point clearly about the risk to [X] arising out of a relationship with the mother than excludes all others, especially the father. In cross-examination the Expert explained it in terms of the mother’s inability to allow the child to have a relationship with the father, and her own inability to separate from the child (transcript, page 40, lines 37-40) and the mother’s need for [X] to be completely enveloped in her so that she can say she a good mum. (transcript, page 41, lines 29-31). She distinguished this from an enmeshed relationship because of [X]’s young age, but explained that “the mother is enmeshed in the child, more so than the child enmeshed in the mother” (transcript, page 21, lines 7-25).
I am satisfied that there is sufficient evidence before the Expert and the court to make findings consistent with the Expert’s conclusions about the mother’s background in the second paragraph of this extract. The third paragraph in this extract is, however, problematic. There is no evidence before the court to support any suggestion that the mother is “creating pathologies in [X]”. Indeed, whilst as will be seen I have some reservations about the mother’s evidence of abuse and violence perpetrated by the father, I generally accept the evidence she gives about [X] and her behaviour. In cross-examination, moreover, she sensibly conceded that some of [X]’s behaviours which she attributed to the father were developmentally normal. The issue becomes the mother’s willingness to misattribute [X]’s behaviour to the father, rather than whether [X]’s behaviours are in fact real.
In am troubled by the fourth paragraph in this extract. It seems, almost in a rhetorical manner, to create only two limited options for this case – either the mother’s controlling exclusion of [X] from her father’s life; or the father’s generous and inclusive involvement of [X] in her mother’s life? It seems to me, however, that there are more than just the stated options in this case, and one wonders whether this sort of absolute either/or thinking by the Expert has blinkered her consideration of what is the best interests outcome for [X], even if all of her factual assumptions are correct?
In the fifth paragraph in this extract the Expert raises what I believe becomes one of the most significant issues in this case – [X]’s attachment to her parents. I will explore this in greater detail below. The paragraph regrettably contains some of the “blinkered” thinking evident in the preceding one – that the “only way” [X] can have a relationship with both parents is if she lives with her father.
The Expert then specifically addresses the assessment questions commencing at page 47. I will only reproduce the relevant ones, and comment as appropriate.
a. whether the child is at risk of being exposed to any physical or psychological harm from being subject to or exposed to abuse, neglect or family violence;
It is the expert’s opinion that [X] has not been exposed to physical abuse or neglect or family violence. Rather, she will be at risk of ongoing psychological harm whilst remaining in the sole custody of her mother, as outlined above.
As it turns out, and for reasons I explain in more detail below, I accept that [X] has not been exposed to abuse or family violence. I accept that there is some risk of psychological harm if [X] remains in her mother’s care and her relationship with the father is not facilitated and encouraged. I will discuss this in more detail below.
c. the relationship between the child with each of his parents and any other relevant person;
[X]’s capacity to form relationships with others has been decided by her mother, in the context of who the mother believes she is getting her own needs met. As such, [X] has not had the opportunity to spend time with her father and paternal family, or extended paternal family and friends. Despite this, [X] knows her father and displays an understanding of him being an important person in her life.
At this stage, [X]’s attachment to her mother is clear. She seeks her mother out for comfort and knows only her mother in her life. She has contact with her maternal family, and displays no apprehension with other people.
I find it interesting that the Expert reports on [X]’s clear attachment to her mother, and indeed elsewhere to her father, though her evidence in cross-examination was more ambiguous. For example, at page 6, lines 16-30 she states:
Is that what you’re referring to as his attachment with [X]?
‑‑‑Well, what it is I’ve said here – what I’ve said throughout is that [X] has an attachment but attachment occurs on a continuum. A secure attachment is what we strive for when we’re actually looking at child development. What I’ve said here is that she would benefit from an ongoing relationship with both her parents and continue to develop the secure attachment she needs.
Right?
‑‑‑Now, I hadn’t said anywhere that she actually has secure attachments. I’ve said she has a genuine attachment.
Yes?
‑‑‑I’ve said that she – a genuine attachment to her mother and I’ve said that she actually has an attachment to her father, just as she would with other relatives, but a secure attachment is really what the goal is and I’m unsure about whether [X] actually has a secure attachment to anyone at this stage. It’s not something I have enough information to be able to comment on.
The distinction she draws in cross-examination between a genuine attachment and a secure attachment is not a distinction discernible from the Report. Indeed the inference in this passage that [X] may not have a secure attachment with her mother is startling. One would have expected the Expert to say this in the Report, if she was in a position to do so.
The Expert was cross-examined about the impacts on attachment of separating [X] from her mother, at page 16, line 37 to page 17, line 5:
Is it the case that every child whose attachment is broken suffers long term impacts on their mental health and emotional wellbeing?
‑‑‑No, it’s not the case. Not every child.
So it’s a risk factor?
‑‑‑It’s certainly a risk factor, yes.
Can you put it any higher than just being a risk factor?
‑‑‑Well, it really depends upon the actual quality of the relationship which you’re – the attachment that you’re breaking in the first place. It depends on the resiliency of the child, it depends on the developmental status of the child, it has such a large number of factors. So it is one of those risk factors but we see children all the time who are removed from parents for child protection issues who then – during their formative years, who are able to then develop without serious pathology as well. And certainly we see people with serious pathology who’ve lived with their primary attachment figures for all of their lives as well.
The Expert acknowledges the risk factor for [X] in being removed from her mother’s care, a move that she links to “child protection issues”. The only child protection issues that the Expert could be referring to is the risk of ongoing psychological harm whilst remaining in the mother’s care, as previously articulated. The nature and degree of this risk is hard to discern in a case where [X] was observed to have such positive interactions with her father. Nonetheless the Expert reiterated in cross-examination (e.g. page 27, lines 38-39) that she regarded this as a care and protection matter, and that [X] was at risk.
Further in cross-examination the Expert left me in doubt as to what, precisely, her evidence was in relation to [X]’s attachments. She says at page 31, line 37 to page 32, line 15:
Well, that’s everything you say is based on the information you had, isn’t it?
‑‑‑Yes.
From the sources we agreed you had before?
‑‑‑From, from the observations that I made, that's correct.
So why wouldn’t you say she had a secure attachment with her mother?
‑‑‑Because, again, I had a limited amount of information. I also – I had some – the concerns about why I didn’t put secure attachment was because I did have the mother telling me about the anxieties that the child exhibits when she’s not there or is seeking her which is more an insecure type of attachment.
But, hang on, have I got you wrong? I thought you agreed with me a moment ago that she does have a secure attachment to her mother?
‑‑‑No, I said that – you asked me about whether my observations were consistent with a secure attachment.
No, I didn’t say that. I said do you agree that she had a secure attachment with her mother?
‑‑‑No, I didn’t say that.
No?
‑‑‑I said that I couldn’t form that opinion.
Right, so you couldn’t form it, so do you say that she has an insecure attachment with her mother?
‑‑‑Again, I can’t form either. Certainly the last type of information that we have from affidavits would indicate an insecure attachment if they were true.
Unless they’d been going on for a long time and they’re not of recent origin, would that make any difference?
‑‑‑Yes, it would, yes.
Whilst the Expert is quite clear that the mother is [X]’s primary attachment figure, she could neither say that it was secure nor insecure. Indeed recent anxieties deposed to by the mother in her last affidavit of 2 August 2011 suggested it could be insecure. The difficulty I have with this evidence is that later in cross-examination the Expert acknowledges that the very behaviours which she says might indicate insecure attachment is in fact normal developmental characteristics for a child (page 49, lines 1-46). Once again, the impression I form is that out of evidence the significance of which is mainly about the mother misattributing otherwise normal behaviour to the impact of contact with the father, the Expert seeks to draw conclusions about the nature of [X]’s attachment to her mother. To the extent that the Expert seeks to do this, I do not accept her evidence. The possible consequences of the mother’s behaviour is a quite separate issue to the nature of the child’s relationship with both parents.
Regrettably I find the Expert’s evidence about [X]’s attachment to her mother and father to be superficial insofar as it purports to explore the consequences for [X] of being removed from her father. In the absence of a pressing child protection consideration, the court must be very hesitant to venture into the unknown.
d. 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;
As discussed above, the other is both unwilling and unable to facilitate and encourage a close and continuing relationship between [X] and her father. Her father, on the other and, is both willing and able to do so.
This conclusion seems to give very limited weight to the clear evidence that, notwithstanding all of the mother’s concerns about the father’s behaviour, she has encouraged [X]’s relationship with him. As I have previously indicated I cannot find that the mother acted maliciously in making what I will find to be primarily false accusations against the father about violence and abuse. I will find that it is more likely than not that the mother had genuine, subjective concerns with no objective foundation to these concerns. Notwithstanding this, the father continued to have contact until shortly before these proceedings commenced. A constant thread in the mother’s evidence is that she wanted the father to have a relationship with [X] despite her concerns about his behaviour. Indeed it is her explanation for nor reporting incidents earlier.
Indeed the clear evidence is that when the Expert went to interview the mother and mother and [X] at their home, [X] showed the Expert a photo of her father in her bedroom. In cross-examination (page 33) the Expert agreed that it was significant that [X] identified a photo of her father to the Expert whilst in the presence of her mother:
Yes. If, even at her young age, [X] had any perception of anxiety, hostility, whatever negative characteristic we might call it, her mother had towards her father, you might have expected that she’d be quite reluctant to do just that ‑ ‑ ‑?
‑‑‑That's correct.
‑ ‑ ‑ while her mother was present, wouldn’t you?
‑‑‑That's right.
Indeed, were you not surprised to find that there was a photograph of the father at all in the house if the mother ‑ ‑ ‑?
‑‑‑I
‑ ‑ ‑ Can I just add this?
‑‑‑Yes.
If the mother is as malicious as one might think she was reading your report?
‑‑‑No, I wasn’t surprised. The mother had said that she wanted to remind [X] of her father and she told me that there was a photograph in there, so I wasn’t surprised that there was a photograph in the room.
Later in cross-examination the issue of the photo arises again, though in a slightly different context. This important extract comes from page 42, line 39 to page 43, line 44:
But you wouldn’t be surprised at all would you for a mother, who thinks as you suggest this mother does, that she would have made it clear to that child, even at her young age, that she shouldn’t recognise the father at all in her household?
‑‑‑Sorry, can you repeat that question.
Yes. You would expect wouldn’t you that if a mother was behaving as you’ve suggested this mother does, with the allegations she makes, that she would have made it clear to a child, even of this young age, that she should not identify her father in this household?
‑‑‑Well, we are again assuming that what the mother has said is accurate. We don’t know how much the mother talks to the child about the father. We don’t know whether the photograph was really there beforehand. We don’t know any of those sorts of things at all.
I see. Did you notice the child being at all anxious in the presence of her father?
‑‑‑Not at all.
Recoil from the father?
‑‑‑Not at all.
Didn’t show any sign did she, according to your observations, that would suggest she’s been encouraged to be fearful of him or concerned about him?
‑‑‑Not when I saw the observations, no.
Or to not recognise him?
‑‑‑That’s right. No, she knew who he was.
Her response to him was entirely appropriate wasn’t it?
‑‑‑That’s right.
Yes. And I suggest to you that that’s something for which her mother deserves great credit, isn’t it?
‑‑‑Well, certainly the child doesn’t fear the father, that’s right.
No but what I asked you was, that’s something for which the mother deserves great credit wasn’t it?
‑‑‑Assuming that it was the mother that actually instils that.
Well, she’s the primary attachment figure isn’t she?
‑‑‑Yes I know but I’m not there all the time.
No but the mother is, isn’t she?
‑‑‑That’s right.
And she unquestionably deserves credit for that doesn’t she?
‑‑‑Again, all I can say is that this was all happening within an assessment period.
Yes?
‑‑‑And within an assessment period people can make significant changes for an assessor.
Ma’am, you have trouble giving the mother credit in that way, don’t you, because of this adverse view you’ve formed about her based on the credibility problems you’ve identified in your report?
‑‑‑No. I have trouble making absolute statements when I can’t call upon a whole range of evidence for that. I’ve given a cross-sectional analysis in this particular instance and I’ve said that obviously [X] doesn’t feel uncomfortable with her father, that that is likely to have come from encouragement from the mother to go to contact and be with the father and see the father and speak to the father. So that’s likely to be the case but I can’t comment on whether or not the mother has made a long term effort to have the father as a primary partner in the mother’s – in the child’s life. I can’t make that comment.
In this passage the Expert implies two things – firstly that the mother trained [X] to identify her father in the photo, i.e. that it was a conditioned response from which no inference can be drawn about supporting [X]’s relationship with him. The second implication is that the photo of the father may not have been there before the Expert visited. Quite apart from the mutual inconsistency of these two hypotheses by the Expert, it is mere supposition on her part, totally unsupported by the evidence. The Expert is clearly suspicious of the mother, does not accept what the mother says, and is not prepared to give her much or any credit when it comes to [X].
e. the likely affect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of the parents or any other person with whom the child has been living with;
[X] has never been apart from her mother, and would typically find any change in her now established routine difficult to manage initially. However, given her relatively young age coupled with a remarkable social and emotional maturity for her age, it is likely that [X]’s would be able to adapt with a change over time. What would be most damaging to [X], is if she is exposed to emotional outbursts or pathological behaviour by the parents, linked to spending time with the other parent. If this occurred, over time, [X] will associate being with the other parent as traumatic and alienation is likely to eventuate (Kelly, J. & Johnston, J.R., 2001).
The difficulty I have in understanding this evidence is that it was written in a context where no proposal was formulated for [X]’s time with her mother, on the assumption that she lives with her father. Hence assessing the likely effect of change was a rather academic exercise. It was not until the Expert gave oral evidence that her recommendations became apparent, and even this took some time. The close link between the issue of [X]’s attachments, and the nature and frequency of the time she should spend with the other parent, became evident in the Expert’s oral evidence.
The Expert was concerned that the mother would not be able to foster [X]’s transition to her father’s home, so she recommended “a swift removal” (page 7, lines 3-4) followed by a period of time when [X] would have no contact with the mother, in order to develop her further relationship with the father. Eventually she settled on a recommendation of a month, describing this as follows at page 7, lines 30-36:
The very best would be, I would say, a month. I would say a month for [X] to just spend that good solid time with her father, her father’s partner, her father’s family, develop that relationship, settle herself, because this would be a change in environment, it would be a change in town, it would be a change in everything for the child, before we then start to reintroduce her back to her mother and the mother’s family.
The Expert was robustly criticised in cross-examination by Counsel for the mother, particularly as to why she had not expressed an opinion about contact in the Report itself. She explained why at page 26, lines 29-38:
Now, it’s the case, isn’t it, that nowhere in the report do you actually proffer any opinion of what time [X] should have with her mother if she were to live with her father?
‑‑‑No, I don’t.
Why not?
‑‑‑Because it’s – as I explained before, it’s actually quite a difficult opinion to write. It very much depends upon how [X] adjusts. It depends upon the decisions made by the court. It depends upon whether or not the court sees that the purpose is for restoration back to the mother or some sort of shared care arrangement or whether it’s for identity purposes only. So all of those things are dependent upon – it’s all dependent upon that.
This evidence does suggest that the Expert was perhaps unfamiliar with her role in proceedings under the Family Law Act. Her advice and prognostication about how [X] would adjust was required as part of the Report, not as an after-thought to it, dependent in some way on observations that might never take place. It begs the question that if this evidence is correct, in the absence of evidence about how [X] adjusts, how could she conclude that a one month separation from her mother was appropriate, let alone an as yet unspecified proposal for contact? Nonetheless when pressed in cross-examination about the one month no contact proposal the Expert was firm in her belief that it was in [X]’s best interests. It’s just that there is no evidence before the court as to why two, or three months or even one week, is any less or more in [X]’s best interests.
The rest of the Expert’s proposal for [X]’s contact with her mother only emerged in the course of cross-examination and, specifically, a robust reality-testing of the consequences of the Expert’s recommendation. For example, at page 34, lines 34-46:
One of the things you said was there would need to be an absolute swift removal from the mother’s care?
‑‑‑Yes.
Now, imagine this order has been made and so there’s no contact with the mother for, say, a month. How is this going to happen? How is this handover or removal or whatever it is of [X], how is that actually going to happen?
‑‑‑Again, this is something for the parties to decide.
No. We’re here because the parties can’t decide apparently. So the court is going to have to decide about the orders and whether or not the orders get down to this level of detail, I’m asking you as the psychologist who has studied all of this, how do you envisage is it actually going to happen for [X]?
‑‑‑Best case scenario would be that a third party would take [X] to her father.
It is more likely than not, I believe, that some of the behaviours reported by the mother about [X] fall within what Ms C describes.
The Best Interests of [X]?
The first of the primary considerations indentified in s.60CC(2) requires the court to consider the benefit to [X] of having a meaningful relationship with both her parents. I do not regard this as a significant issue in this case. All proposals advanced satisfy this, though to different degrees.
The main issue in this case is that identified in s.60CC(2)(b) – the need to protect [X] from physical or psychological harm. On the facts of this case it does not matter whether the question is framed using the language of s.60CC(2)(b), or the language of unacceptable risk of abuse as used in W and W (abuse allegations: unacceptable risk) [2005] FamCA 892 and the other cases referred to in the section of my reasons dealing with the applicable law. On either analysis, and using the Briganshaw standard, the result is the same.
Whilst not required by the authorities to make positive findings, on the facts and evidence of this case, which I trust are evident from my discussions of the evidence above, I find there was no sexual or physical abuse of [X] perpetrated by the father, or any other person. I do not accept the mother’s evidence in this regard. On the evidence before me I find that there is no risk of abuse to [X] from her father, and no need to protect her from the harm referred to in s.60CC(2)(b).
Part of the father’s case was that [X] needed to be protected from the psychological harm arising out of the mother’s overly-close indeed almost stifling relationship with [X], that precluded a relationship with him. I find on the facts before me that there is no such risk of psychological harm that [X] needs to be protected from. I do not accept the Expert’s evidence in this regard, for the reasons I have stated above.
Part of the mother’s case is that [X] needs to be protected from the harm arising from exposure to family violence that the father perpetrated against her. I find that whilst there was family violence, it was limited in nature, of low potency, and not part of a pattern. I find that there is no risk of harm in respect of which [X] needs to be protected. I do not accept the majority of the mother’s evidence about the violence and abuse she alleges the father perpetrated. I prefer the father’s evidence in this regard.
There are no views of the child that are relevant in the present context [s.60CC(3)(a)].
I find that the nature of the father’s relationship with [X] is a good one. This is consistent with the Expert’s observations which were unchallenged. Indeed it was part of the mother’s own case that [X] had a good relationship with her father, thus demonstrating that even if the mother had sought to undermine it (which of course the mother denied) she had most certainly failed. Indeed, given that [X] has spent such limited time with her father, and within the constraints of a supervised contact centre, it is hard to resist the inference that, at the very least, the mother has not sought to inhibit this, and at most, has actively encouraged it despite her concerns about the father. The mother’s repeated and consistent evidence before me was that she wanted [X] to have a relationship with her father. The fact is that as at the date of the hearing, that relationship is a good one.
The nature of the mother’s relationship with [X] is more complex, and it may well reflect some of the emotional vulnerability and fragility that the mother herself brought into the relationship with the father. It is clearly a close, loving relationship. The Expert reported that her attachment to the mother was clear. I do not accept, however, the Expert’s view that the mother is controlling [X]’s capacity to form relationships with the father. That is plainly inconsistent with the evidence before me about [X]’s relationship with her father. It is probably the case that some of the mother’s own needs are being met out of her relationship with [X], but there is no evidence to suggest that this is outside of normal limits, or that it has hindered the child’s relationship with her father. There is no doubt that the mother is clearly protective of [X], and may have failed in the past (and indeed may well fail again in the future) to protect [X] from her own anxieties, apprehensions and misapprehensions. None of that detracts from a finding of a positive, important and psychologically healthy relationship between [X] and her mother.
Another major issue in this case is whether the mother truly is willing and capable of facilitating and encouraging a close and continuous relationship between [X] and her father. On the one hand the evidence indicates that [X]’s relationship with her father is a good one, and has survived a very difficult relationship between the parents, as well as stressful, dramatic legal proceedings. There is also the mother’s consistent assertions that she wants [X] to know and have a relationship with her father. The father himself concedes that if the mother was trying to undermine his relationship with [X], she had certainly failed to date. Against this there are what the father asserts to be contrary indications. Thus it was only the initiation of litigation that resulted in a parenting order that has consistently provided to him time with [X], as unsatisfactory as he may well have perceived this to be. Moreover the allegations of abuse and violence by the mother, maintained right throughout this case, are said to be strong contra-indicators of her willingness to encourage this relationship. I do not accept this. I think that her allegations, as misconceived as I find them to be for the most part, do not necessarily indicate the intention that the father attributes to them. I am prepared to give the mother the benefit of the doubt and find that she did not act maliciously. I accept she genuinely believed that the events she referred to constituted the violence and abuse she deposes to. I am prepared to give her the benefit of the doubt in this case because of a number of factors. Firstly, the fact is that [X] does have a good relationship with her father which is more consistent with a mistaken belief rather than a poorly executed malicious belief. Secondly, I find the mother to have been in a vulnerable, fragile, emotional state at the beginning of this relationship, and certainly after its conclusion. She is in that condition presently. I cannot ignore this vulnerability in the present context.
In any event one must refer back to paragraph (c) of s.60CC(3). It looks at both the past and the future. Insofar as this consideration invites a retrospective perspective, the mother’s lack of willingness to facilitate and encourage [X]’s relationship with her father must be seen in the context of the matters I have referred to in the preceding paragraph. Insofar as this consideration is prospective, I am left with no doubt that one consequence of this litigation is that the mother is keenly aware of her legal obligations as a parent. I am sure she realises that her future conduct is likely to be as scrutinised as her past in this case. Whilst I accept her evidence that she does encourage, and will facilitate [X]’s relationship with her father, I am also sure she will be mindful of the consequences if she does not.
Section 60CC(3)(d) requires me to consider the likely effect of any changes in [X]’s circumstances, including the likely effect of separation from a parent. On the mother’s proposal there will be minimal change. Both the father’s and Independent Children’s Lawyer’s proposals present formidable, and in my opinion, unmanageable change for [X]. The fact remains that [X] has never spent a night with her father, away from her mother. She is only just being weaned off her mother’s breast. She has never spent any period longer than a few hours alone with her father before separation, and never alone since then. On the father’s proposal [X] would be cared for by him, his partner, and probably a substitute carer. There would be a team of carers who, in effect, take shifts in looking after her. The father’s partner admitted that they sometimes pass “like ships in the night”. By contrast [X] is primarily cared for by her mother, with assistance at times from her maternal grandmother and other family members. As well as the emotional changes inherent in the father’s proposal, there are dramatic physical changes as well. [X] is removed not just from her mother, but is taken to a place several hours away by car. Any upheaval and distress she will suffer, even in the short term, is exacerbated by this distance. I am not satisfied that the impact of this change is ameliorated by hearing her mother’s voice on the phone, or seeing her mother’s image on Skype. Whilst the evidence about attachment was less than satisfactory in this case, I do not need expert evidence to tell me that [X] is at a very important, sensitive, developmental stage of her life. Removing her from her mother is conceivable in circumstances where I am satisfied there is some risk to her. The evidence before me does not establish that risk.
It is hard to imagine a case that creates a more perfect storm of issues of practical difficulty [s.60CC(3)(e)]. There is no satisfactory communication or trust in existence between [X]’s parents. This litigation has stamped out the likelihood of this ever changing. They live several hours drive away from each other. The mother works part-time, sometimes on shifts. The father and his partner work shifts. [X] is young, is being weaned off her mother’s breast, and is demonstrating insecure but otherwise unsurprising developmental behaviours including clingyness. Against all of this, however, I have no doubt that the father is willing to do the travel and in fact do what it takes to sustain his relationship with [X]. I am also satisfied that the mother will comply with the orders I make. One must also not lose sight of the fact of the reality of change, and the way in which this potentially reduces the practical difficulty issues. Thus, [X] will grow out of this developmental stage and become more resilient and mature and the mother will hopefully recover from her depression and become stronger emotionally. Reducing the geographical distance between them is something that the father seemed to contemplate in his evidence, though it was not advanced as a proposal. I am satisfied that whilst there are issues of practical difficulty that might affect [X]’s right to maintain relationships with both parents, they are not insurmountable on the facts of this case.
Section 60CC(3)(f) requires me to consider the capacity of each parent to provide for [X]’s needs. The father’s capacity is relatively unknown, simply because he has not had the opportunity to demonstrate this so far. What is known, however, is that his capacity to meet [X]’s needs is dependent on the assistance of at least his partner, and in my opinion, other carers as well. The mother’s capacity to provide for [X] is tried and tested. Indeed the father, given the opportunity to criticise the mother’s care of [X], was unable to save for his concern, put at its highest, that in view of false allegations made against him, she would not be able to meet [X]’s emotional need to have a father in her life in the future. I do not accept that this concern has a legitimate basis, after considering all the evidence before me.
Section 60CC(3)(g) requires me to consider the maturity, sex, lifestyle and background of the parents and [X]. Most of these issues have been discussed elsewhere in my reasons. The mother’s background involving a sexual assault and harassment in the workplace has resulted in her suffering depression and post traumatic stress disorder that seems to have abated, but then returned as a result of these proceedings. One cannot help but wonder whether the mother’s fragility and vulnerability, as I have described it elsewhere in these reasons, is part of who she is, with the consequent possibility that she may suffer relapses, or may even make future poor choices in relationships. I take this possibility into account in these reasons, but remain of the view that just as she has been able to prioritise [X] to date, and sustained a relationship with [X]’s father, she will continue to do so.
Parental attitudes is the focus of s.60CC(3)(i), and this is related to issues of insight. Both parents demonstrated lack of insights about [X], suggesting to me that at times, they were more focused on themselves than [X]. Whilst I have found that the father’s violence towards the mother was quite limited in its scope, it is nonetheless clearly irresponsible and demonstrated lack of insight about how this would affect the mother, [X], and the proceedings about her. I consider there to be a degree of irresponsibility in the father’s proposals for [X] at the hearing, in that they were poorly considered and not reality tested. The mother was, in my opinion, clearly irresponsible in making allegations that I have found to be false. I accept she clearly believed them to be true, a belief that seems to have deepened as the litigation progressed, but there was ample opportunity for the mother to take a reality check herself in relation to her allegations. She would have spared both [X] and herself much stress and cost if she had done so, especially in circumstances where she was so well-advised. In the mother’s quest to protect [X], she was actually doing her more harm than good.
I am required to take into account family violence and I am satisfied that I have done so.
Paragraph (l) of s.60CC(3) requires me to make the order that is least likely to lead to the institution of further proceedings in relation to [X]. I have given consideration, but ultimately rejected, making an interim order and then reviewing it at a later date. The obvious advantage is that whatever parenting order I made would be under the court’s indirect supervision, thus maximising the parents’ accountability for their actions. But that would come at a great cost to the parents, and the prolongation of proceedings for [X]. This case needs to be finalised. It is clear, I trust, from a reading of these reasons that I do not believe it is in [X]’s best interests for her to live with her father, at least not for the time being. The focus should be on sustaining and strengthening her relationship with her father, and making the mother accountable for that. A measure of accountability may be achieved by making an order that any future litigation involving [X] must be first listed before me, provided that I am reasonably available. Of course both parents will retain their rights to ask me not to hear the matter because of the findings I have made. Then again both parents may well want me to hear any further applications because of the intimate knowledge I have about this case. For example, and this is but judicial speculation of course, the father might want me to hear this matter because he believes I would not give the mother another chance. And the mother might want me to hear this matter because no-one else would give her another chance. Whatever parents may think, orders about [X] are always made having regard to her best interests at the time. I cannot rule out the possibility of future litigation about [X]. If the mother fails to comply with these orders I suspect she knows that the father will not hesitate to enforce them. Of course there is just as significant an obligation on the father to comply with these orders, and to maximise all opportunities he has to build his relationship with [X].
Parental Responsibility
Both parents seek sole parental responsibility. Pursuant to s.61DA I am required to apply a presumption of equal shared parental responsibility unless subsections (2) or (4) applies. [X] has not been abused. There is no violence such that the presumption should not apply. I heard no convincing argument that the totality of s.60CC considerations lead to a conclusion that equal shared parental responsibility is not in [X]’s interests. I accept that there are both communication and trust issues affecting both parents, but that is not enough on the facts of this case. I fear that in this case whoever receives an order for sole parental responsibility may well use it against the other. I will not take the risk that this happens. [X] is very young. These parents will simply have to learn to communicate better about her, using such resources as are available to them in the community.
Equal time or substantial and significant time
Section 65DAA requires me to consider this. Neither parents sought equal time, and it is neither reasonably practical nor in [X]’s best interests. I am not satisfied that this is feasible because of the matters referred to in s.65DAA(5)(a)-(d). However, substantial and significant time may be possible over time, and my orders will reflect this.
What orders are in [X]’s best interests?
The Minute of Order sought by the mother, and submitted on the last day of the hearing, provides a template of sorts to assist me in making orders. They are significant, insofar as they relate to [X]’s time with her father, because they reflect what the mother herself considers to be developmentally appropriate and in [X]’s best interests. Clearly, however, I reject any suggestion of there being any risk to [X] whilst in her father’s care, hence there is no need for supervision. Nonetheless, wherever possible changeover should take place at a supervised contact centre, or when this is not possible, at a public place. The mother’s proposal also ignores the reality of the father’s shift work, and this needs to be reflected in the orders, at least until [X] commences school. Before [X] commences school, her time with the father is more important than anything else she does, including preschool, though I would urge the father to consider taking [X] to any scheduled activities she might otherwise be undertaking, more for [X]’s sake than his.
There is ample evidence before me to sustain orders for the parents to attend a post-separation parenting program, for the mother to continue to receive treatment from and abide by the advice of her doctors in relation to depression and post traumatic stress disorder, and for mutual non-denigration and non-discussion orders.
I certify that the preceding one hundred and seventy-nine (179) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Date: 6 October 2011
Schedule A
Mother’s Minute of Order
1.That [X] live with the mother.
2.That the mother and father have equal shared parental responsibility with respect to [X], noting that this Order will apply to the making of long-term decisions with respect to [X].
3.That [X] spend time with the father as follows:-
a.For a period of one month from the date of Orders, [X] spend four hours each week with the father, such time to be supervised at [omitted];
b.After the above period, [X] spend time with the father for a period of four hours per week between 9:00 a.m. and 5:00 p.m. in Canberra for a period of one month;
c.Thereafter, for a period of one month, [X] spend a period of six hours per week between 9:00 a.m. and 5:00 p.m. with the father in Canberra;
d.Therefore, for a period of one month, [X] spend a period of eight hours per week between 9:00 a.m. and 5:00 p.m. with the father in Canberra.
4.That after the expiry of the periods referred to in 3 above, the mother will bring [X] to [N] on one occasion per month for her day visits with the father.
5.That until [X] is four years of age, [X] will spend no more than two hours in the care of a person not directly related to her for a period of three months.
6.That the father be at liberty to spend time with [X] during her scheduled activities, for example, swimming lessons, art, gymnastics, with the mother providing the father notice of these upcoming activities once per fortnight.
7.From 2012 onwards, [X] will spend a minimum of six hours with the father on his birthday and on Father’s Day.
8.Upon [X] turning four years of age, she spend from 10:00 a.m. on Saturday until 3:00 p.m. on Sunday with the father, every second weekend, with the first four overnight visits to occur in Canberra.
9.That until [X] is five years of age the father’s time with [X] pursuant to the above orders be supervised by Ms H or an alternate female agreed upon by the mother.
10.That unless otherwise agreed, [X] spend time with the father on special days as follows:
a.Commencing Christmas December 2012:
10.1.1From 9.00am Christmas Eve until 12noon Christmas Day in even numbered years;
10.1.2From 12noon Christmas Day until 5.00pm Boxing Day in odd-numbered years.
b.From Easter 2013:
10.2.1From 9.00am Good Friday until 5.00pm Easter Saturday in even numbered years;
10.2.2From 9.00am Easter Sunday until 5.00pm Easter Monday in odd-numbered years.
c.[X]’s birthday ([date omitted]):
10.3.1If it falls on a school day, for two (2) hours after school between 4.00pm and 6.00pm the night; and
10.3.2If not on a school day, from 9.00am until 1.00pm in even numbered years and from 1.00pm to 4.00pm in odd-numbered years.
11.Upon [X] turning five years of age, [X] spend time with the father:
a.from 6:00 p.m. on Friday to 4:00 p.m. on Sunday every second weekend; and
b.one week or such other time as may be agreed between the mother and father during each school holiday period applicable to [X].
12.That the father will promptly contact the mother if on any occasion [X] is unable to be settled while in his care so that the mother can try and settle [X] over the telephone.
13.That the mother will be entitled to make arrangements for [X] to attend pre-school as follows:-
a.One set day per week until [X] turns three years of age (most likely a Friday);
b.Two set days per week until [X] turns four years of age (most likely a Wednesday and a Friday);
c.A maximum of three set days per week up until [X] turns five years of age (as set by the school, with the mother giving the father notice of what arrangements are made by the pre-school).
14.The father is to provide the mother two months’ notice of the proposed dates of his visits with [X].
15.In the absence of agreement handovers for the time the father is to spend with [X] is to take place at [M].
16.Telephone communication between [X] and the father:
a.Between 6.30pm and 8.30pm on any day
b.Any time in an emergency
c.At any reasonable request by [X]
17.Telephone communication between [X] and the mother:
a.At any time as requested by [X]
18.Parties to notify each other immediately where there is an event requiring [X] to attend hospital. Parties to notify each other as necessary when [X] attends a medical practitioner.
19.That the father and the mother each complete a ‘Parenting after Separation’ program within three (3) months of the date of these Orders.
20.That the father complete an Anger Management Course within three (3) months of the date of these Orders.
Independent Children’s Lawyer’s Minute of Order
That the father have sole parental responsibility for the child of the relationship, namely [X] (“[X]”) born [in] 2008 including:
1.1.for the making of an application for his name to be recorded on [X]’s birth certificate, as the father, without the mother having to be a party to that application or to sign or consent to it; and
1.2.for the making of an application for a passport to be issued for [X] without the mother having to be party to that application, or to sign or consent to it, subject to the father providing the mother with 28 days written notice of his intention to travel overseas with [X].
That the father keep the mother informed of all decisions pertaining to [X]’s long term care, welfare and development.
That the child live with the father.
To facilitate the change in [X]’s living arrangements, that the parties, within 7 days, contact [M] Contact Service to arrange the for the changeover of child coming to live with the father at the premises of the Service, which changeover to take place within 21 days of these orders.
That the child spend no time with the mother for a period of four weeks after the changeover of the child pursuant to order 4.
That, thereafter, the child spend time with the mother as follows:
6.1.for a period of 3 hours on one day in each week for four consecutive weeks, and in lieu of agreement, each Saturday from 10am until 1pm, which shall take place in the [B] locality on the first and third occasion, and in the Canberra locality on the second and fourth occasion; and thereafter
6.2.for a period of 8 hours on one day in each week, and in lieu of agreement, from 9am until 5pm each Saturday for four consecutive weeks, which shall take place in the [B] locality on the first and third occasion, and in the Canberra locality on the 2nd and 4th occasion; and thereafter
6.3.from 10am on the first day, until 5pm the second day on one occasion each week, for four consecutive weeks, and in lieu of agreement, from 10am Friday until 5pm Saturday; and thereafter
6.4.until [X] attains 3.5 years of age, for two periods of overnight time, (ie. two 24 hour periods) consecutively if possible, in each alternate week at such times as are mutually agreeable between the parents, and in lieu of agreement, to coincide with the father’s night shifts and days that the mother is not working, which time shall be suspended for two one week blocks of time when [X] will remain with her father; and
6.5.once [X] attains 3.5 years until [X] attains 4.5years of age:
6.5.1.for two periods of overnight time, (ie. two 24 hour periods) consecutively if possible, in two out of every three weeks at such times as are mutually agreed between the parents, and in lieu of agreement, to coincide with the father’s night shifts and days that the mother is not working, which time shall be suspended for two one week blocks of time when [X] will remain with her father; and
6.5.2.for two, one week blocks of time which may be taken consecutively;
6.6.once [X] attains 4.5 years of age:
6.6.1.during school terms-
(a)from after school Friday until 4pm Sunday each alternate weekend (excluding the weekend during which father’s day falls); and
(b)if the parties live within 10km of each other’s home, from 3pm or after school each Wednesday until the commencement of school each Thursday; and
(c)from 3pm of after school Friday until 4pm Sunday on the weekend which includes mother’s day;
6.6.2.during school holiday periods, for one half of each NSW Public school holiday period, and in lieu of agreement, the first half in odd numbered years, and the second half in even numbered years; and
6.6.3.from 4pm Christmas day until 4pm Boxing day in the years that [X] spends time with her mother in the second half of the holiday period; and
6.6.4.the time [X] spends with the mother shall be suspended from 4pm Christmas Day until 4pm Boxing day in the years that [X] spends the first half of the holiday period with her mother.
That, after the commencement of the child spending time with the mother, the child communicate by telephone with the parent with whom she is not living or spending time, not less than 3 times in each week and not more than once in each day, at such times as are mutually agreed.
To facilitate the time the child spends with the mother in the [B] locality, the mother shall collect and return the child to and from the father’s home at the commencement and conclusion of such time.
To facilitate the time the child spends with the mother in the Canberra locality, the father shall deliver the child to the mother and collect the child form the mother at an agreed location, and in lieu of agreement, from the mother’s home, at the commencement and conclusion of such time.
10. That once the child commences spending time with the mother overnight, unless otherwise agreed between the parties, the mother collect the child from the father’s home at the commencement of such time, and the father collect the child form the mother’s home at the conclusion of such time.
11. That each parent be restrained from relocating the child’s home at which she lives with or spends time with that parent without first providing the other with 30 days written notice.
12. That both parents be restrained from taking the child to or seeking treatment of the child by a counsellor or psychologist except with the consent of the other parent.
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