Harris and Jackson

[2009] FamCA 550

FAMILY COURT OF AUSTRALIA

HARRIS & JACKSON [2009] FamCA 550

FAMILY LAW – CHILDREN – Best interests of the child– allegations of sexual abuse – unacceptable risk – with whom a child shall live – with whom a child spends time – parenting capacity

Family Law Act 1975 (Cth)
Family Law Reform Act 1995 (Cth)

CDJ & VAJ (1998) 197 CLR 172
Goode & Goode (2006) FamCA 1346
M v M (1988) 166 CLR 69
Secretary, Department of Health and Community Services v JWB & SMB (1992) 175 CLR 218

APPLICANT: Ms Harris

RESPONDENT: Mr Jackson

INDEPENDENT CHILDREN’S LAWYER: Lisa O’Neill

FILE NUMBER: NCC 1257 of 2007

DATE DELIVERED: 26 June 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 25 & 26 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McGregor of Counsel
with Mr Pieterse of Counsel

SOLICITOR FOR THE APPLICANT: Arnold Lawyers

RESPONDENT: Appearing on his own behalf

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Mr Page SC

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: Legal Aid Queensland

Orders

IT IS ORDERED:

1. That the trial of this matter be listed for further hearing before Murphy J over such number of days as may be determined and on a date to be advised but not earlier than 1 August, 2010 and not earlier than a date 8 weeks subsequent to the delivery of the report contemplated by paragraph 11 of these Orders.

UNTIL FURTHER OR OTHER ORDER, IT IS ORDERED THAT:

1. The mother and father have equal shared parental responsibility for E born … July, 2003 (“the child”).

2. The child live with her mother.

3. The child spend time with her father at all such times as might be agreed in writing between her father and mother and:

   4.1For a period of seven consecutive nights in the June/July and September / October New South Wales school holiday periods; and

   4.2For two non-consecutive periods of seven consecutive nights in the December 2009 / January 2010 New South Wales school holiday period; and

   4.3For the whole of the Easter 2010 New South Wales school holiday period;

   4.4For seven consecutive nights in the June/July 2010 New South Wales school holiday period and

   4.5From 11.00am on Christmas Day until 11.00am Boxing Day 2009; and

1. The child communicate with her father by telephone at all such times as might be agreed between the mother and father and between 6.30pm and 7.00pm (New South Wales time):

   5.1On Monday, Wednesday and Friday each week;

   5.2On the child’s birthday

   5.3On the father’s birthday;

   5.4On Father’s Day.

2. Telephone communication shall be facilitated for the purposes of paragraphs 5.1 and 5.2 of these orders by the father telephoning the number provided by the mother in writing within 48 hours of the date of these orders and for the purposes of paragraphs 5.3 and 5.4 of these Orders by the mother facilitating the child telephoning the number provided by the father in writing within 48 hours of the date of these Orders.

3. For the purposes of the time provided for in paragraph 4 of these Orders the father shall collect and return the child from and to the mother:

   7.1at the Sydney domestic airport and shall advise the mother in writing not less than 42 days prior to the date of departure in each case of the flight details and departure and arrival times and with the costs of air fares to be borne by the father; or

   7.2Provided the father gives not less than 42 days notice in writing of his intention to give effect to this order, at a place to be agreed in Newcastle or, failing agreement, the Newcastle Railway station.

4. The parties shall each do all such things and sign all such documents as might be necessary so as to:

   8.1Advise and keep advised the other of a telephone number upon which they can be contacted;

   8.2Advise and keep advised the other of their respective residential addresses and any address other than each such address at which the child is staying for three or more consecutive nights;

   8.3Inform and facilitate the other being informed of any serious injury or illness suffered by the child whilst in their care and details of any and all medical or other treatment received by her;

   8.4Inform and facilitate the other being informed of the names of any and all doctors, health practitioners, therapists or counsellors upon whom the child might attend for any reason from time to time;

   8.5Permit the other to receive any and all information from any treating doctor, health professional, therapist or counsellor upon whom the child shall attend from time to time

   8.6Permit the other to receive any and all information from the child’s school as to her academic and general educational progress and any and all information relating to any extra-curricular sporting and other activities in which she engages.

5. The parties shall each be restrained from, and an injunction issue restraining each from:

   9.1Denigrating the other parent or any member of the other’s household in the presence or hearing of the child;

   9.2Permitting any person to denigrate the other parent or any member of the other’s household in the presence or hearing of the child;

   9.3Discussing any aspect of these proceedings, or any evidence adduced in writing or orally in these proceedings with the child in any form;

   9.4 Permitting the child from coming into contact with, or allowing the child to remain in the presence of Mr W;

   9.5Video or audio taping the child where any issue relating to any allegations of abuse at the hands of her father, Mr W or otherwise is referred to or discussed, or permitting or encouraging any other person to do so.

IT IS FURTHER ORDERED THAT:

1. That the parties do all such things, sign all such documents and pay all such reasonable fees as might be necessary so as to:

   10.1Facilitate each of them and the child the subject of these proceedings, E, born … July, 2003 participating in a further assessment by Mr C, the interviews for which shall not take place prior to 1 June, 2010;

   10.2Authorise any medical practitioner providing treatment to the child to provide any and all such information as Mr C might reasonably require of them;

   10.3Authorise any person conducting any parenting or other course undertaken by the father or mother directed toward assisting either of them in their parenting and co-parenting of the child to provide to Mr C any and all such information as to the nature and efficacy of the course, and an assessment of the parties’ respective participation in any such course SAVE THAT this order does not require either party to provide any such authorisation where the person conducting any such course certifies that the provision of any such information as envisaged might interfere with any therapy being undertaken by either party.

2. The Independent Children’s Lawyer is directed to facilitate the provision of a further family report by Mr C for use at the further proceedings contemplated by Order 1 with such report to include all such matters as Mr C might consider relevant to the best interests of the child and, without limiting the issues he might otherwise choose to consider in that respect, in particular:

   11.1The mother’s then current belief systems and the impact that same have had on arrangements for the child spending time with her father in accordance with the orders of the court and the likely impact same might have on any future orders;

   11.2The degree to which the capacity of each party to parent and/or their insight into the child’s needs has been aided or otherwise influenced by any courses that either might choose to undertake between now and then;

   11.3Whether, and to what extent, the child has benefited from the relationship between her and the father facilitated pursuant to these orders;

   11.4The degree of stability provided for the child by the arrangements effected by each of the parents in the period between the date of these orders and the date of future assessment including, for example, her attendance and progress at school;

   11.5The nature and extent of the relationship between the child and her father as a result of these interim orders and the relationship developed between the child and any other persons, including grandparents or other members of her extended family.

3. In the week commencing 26 April 2010 and prior to 4.00pm on Friday 30^th April, 2010, each of the parties shall advise the Independent Children’s Lawyer in writing of:

   12.1Their assessment of the efficacy of the interim orders for time and communication made herein in meeting the child’s best interests;

   12.2What issues, if any, remain outstanding between them as to the child’s best interests;

   12.3What course or courses each have undertaken, if any, in the intervening period;

   12.4Whether agreement has been reached between them about any or all issues relating to the future co-parenting of the child.

4. In the event that the parties are agreed, at or prior to 4.00pm on Friday 30^th April 2010 as to future co-parenting arrangements for the child, have reduced those arrangements to writing, signed them and provided them to the Independent Children’s Lawyer:

   13.1Paragraphs 10 and 11 of these Orders shall be vacated upon the Independent Children’s Lawyer advising the court in writing of that agreement;

   13.2Minutes of consent reflecting such agreement shall, by 4.00pm on Friday 7 May, 2010, be forwarded by e-mail, by joint communication of the parties and the Independent Children’s Lawyer and, if considered by the court to be in the child’s best interests, consent orders will be made by the court in Chambers;

   13.3In that event, paragraph 1 of these orders shall be discharged together with such other paragraphs of these orders the subject of agreement between the parties and the Independent Children’s Lawyer shall be discharged upon the making of those orders.

5. In the event that the parties are, at or prior to 4.00pm on Friday 30^th April 2010, not in agreement about the future co-parenting arrangements for the child, each of the parties shall, consequent upon receiving the further report of Mr C, and prior to 4.00pm on Friday 30^th July 2010 advise the Independent Children’s Lawyer in writing of:

   14.1What issues are agreed between them;

   14.2What issues remain outstanding between them as to the child’s best interests that need determination by this Court.

6. In the circumstances contemplated by paragraph 14 of these orders, this matter shall be listed:

   15.1before a Registrar for further directions at a time and on a date to be advised after the earlier of 1 August 2010 or a date eight weeks after the delivery of the report contemplated by paragraph 11 of these Orders.

   15.2thereafter listed for hearing before Murphy J at a date and time, and for a duration, to be advised.

IT IS NOTED that publication of this judgment under the pseudonym Harris & Jackson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: NCC 1257 of 2007

MS HARRIS

Applicant Mother

And

MR JACKSON

Respondent Father

REASONS FOR JUDGMENT

1. The mother in these parenting proceedings has had five children to four partners.  Her youngest child, E (5), who was born in July 2003, is the subject of the current application, brought by her father.

2. Initially, the father’s application sought orders in respect of the mother’s second youngest child, L (10), who was born in March, 1999, but, by the time this matter was heard, his application in respect of L was abandoned.  Each of L and E live with the mother and her current husband and they have done so since about October, 2007.

3. The circumstances in which those children came into the care of the mother at that time, and by which they had been in the care of their father for about eight months prior to that, are the subject of allegations each parent makes against the other.

4. At the core of the mother’s case is a belief that E has been the subject of sexually inappropriate conduct by the father and (I gather separately) by a former housemate of the father’s, Mr M. 

5. At the core of the father’s case is a belief that the mother is mentally unwell (he thinks that her beliefs about sexual abuse are as a result of that).  He considers that she is a neglectful mother and that her care of her older children is testament to that.  He says he does not want E to grow up like the mother’s oldest two children.  He cites their (lack of) education as an example.

6. The allegations of each give an obvious significant context to the ultimate determination of E’s best interests.

Proposals of the parties

1. In her Amended Application filed on 6 October 2008 the mother sought orders that E (and L) live with her and that she have sole parental responsibility for each of those children.  There was no order sought in respect of the father spending time with either child.  In a Family Report dated 15 January 2009 prepared by Mr C, he records the mother’s position as being that:  “She is now seeking that [L] and [E] remain in her care and that there be no provisions for a continuing relationship between the girls and [the father]”.

2. In affidavits sworn four months later the mother swears to being “willing to settle this matter” on the basis stipulated at paragraph 205 of that affidavit.  That paragraph details a position that might be seen to be in stark contrast to the Amended Application filed four months prior to that and the position outlined by Mr C. 

3. In that affidavit the mother’s position, which was confirmed as her position at the hearing, was that the parties have equal shared parental responsibility in respect of E and that the father spend “four block periods of seven days per annum” during the New South Wales school holidays.  Communication by telephone was also provided for, as well as time at Christmas.  Those proposals contained an order restraining the father from allowing E to have contact with Mr M, he being the father’s housemate earlier referred to.  In  final submissions the mother’s counsel, Mr McGregor, indicated his instructions were that the mother was “not fixed on one week periods”.

4. The mother resides in the Hunter Valley area in New South Wales with L and E and her partner.   By order of Federal Magistrates’ Court made in Brisbane on 8 February 2008 the father was to spend time with the children supervised at the Coffs Harbour Contact Centre and the Newcastle Contact Centre or if unavailable the contact centre in Maitland. 

5. The father lives in the Brisbane bayside suburbs area.

6. As earlier indicated, the father initially sought orders in respect of each of L and E but at hearing his proposal was confined to orders in respect of E.  He proposes E live with him – “I don’t agree with her parenting, she’s struggling with school and I don’t want [E] to end up like her older children.” 

7. The father’s proposal as to time that the mother might spend with E is more difficult to articulate.  It seems that, ultimately, he proposes that E spend half of all school holidays with her mother.  However, central to his propositions is an assertion that the mother needs to deal with her beliefs about sexual abuse – “She needs help; she needs counselling”.  The father, in attempting to explain his position, says that the mother needs “an in-depth investigation” and “if that’s all clear, she should get unsupervised visits”.

8. Each of the parties contend for an order for equal shared parental responsibility.  The mother was represented by experienced counsel.  The father represented himself.  I sought to ensure that the father understood that the mandatory requirements imposed upon parents in circumstances where shared parental responsibility, including equal shared parental responsibility, applied to their co-parenting (see s 65DAC).

9. Notwithstanding the profound conflict existing between the two parents, the clear and manifest distrust and, on the part of the mother, an apparently entrenched belief that the father has engaged in sexually inappropriate behaviour with his daughter, each of the parties maintain that such an order should be made.

10. At the end of the hearing, counsel for the Independent Children’s Lawyer, Mr Page SC, submitted that E should live with her father and that there should be “a regime of time unsupervised between [E] and her mother” similar to that which is proposed by the mother for the father.

11. It will be plain that this proposal involves a submission that the court should find that there is no unacceptable risk posed by the father to E.

12. As an alternative to the proposal just described, the Independent Children’s Lawyer proposed that the court should make interim orders leaving E in the full-time care of her mother with orders made for the father to spend time with E.  That submission, too, has at its foundation a finding that the father does not present unacceptable risk to E, but assumes a finding that the court might make about the father’s relative capacity to parent E and findings about the likely impact of separation of E from her mother and sister. 

13. The mother’s counsel, whilst advocating for the outcome previously outlined, recognised that, in the circumstances of this case, the court might find that a balancing of the various considerations directly relevant to E’s best interests pointed to interim orders being made.  It was submitted that such orders might provide “a safety valve”; they will allow E to get to know her father again, allow the mother to attend parenting courses which she indicated in the witness box she was willing to undertake (specifically with a view to addressing a belief system) and allow the court to monitor how E was going.  In that respect, it is pointed out that E is yet very young. 

14. It will be appreciated that, inherent in the submissions just made is, an (at least implicit) acceptance of the likelihood of the court making a finding that E is not at an unacceptable risk of harm (and, in particular, sexual harm) at the hands of her father.  Whilst that submission is, with respect, soundly based on the evidence before me, I consider it nevertheless important that the court analyse that issue, come to an independent conclusion about it and state reasons for doing so.

Ultimate Findings

1. For reasons about to be given, I have concluded that the particular circumstances of this case point to an interim parenting order being made.

2. That order will provide for E to live with the mother and spend time with the father.

3. The significant geographic separation of the parties makes impracticable anything other than block periods of time coinciding with school holidays.

4. Each of the parties urge the court to make an order for equal shared parental responsibility.  I will make such an order on an interim basis.

5. I have, as I am required to do, considered whether equal time or substantial and significant time orders should be made.  Clearly enough, each is impracticable by reason of the geographical separation between the parties.

6. Injunctions will be made that have as their purpose the cessation of E being exposed to “interviewing” by her mother or family members and thereby, or otherwise, engendering a belief on E’s part that she has been sexually abused by her father.

7. There is no necessity to make findings about whether Mr W did, or did not, sexually abuse E.  Neither the father or the mother perceives any detriment whatsoever to either of them – or to E – if an order is made that neither permits contact between E and Mr W.  Mr W’s rights are not directly affected, no order purports to bind him and he does not need notice of any such order or to be heard in respect of it prior to it being made.

1. Whilst in argument the utility of certain courses for each party has been referred to, I will not make any orders compelling their attendance.  Ultimately, it is a parenting decision made by the individual concerned and I consider that courses of that type derive their utility from the willingness to learn that a participant brings to them.

Context of the Current Allegations and Counter-Allegations

1. The parents commenced living together in June 2003, only some weeks prior to E’s birth.  As previously pointed out, at that time the mother already had four children.

2. The parties are unable to agree when they separated.  The father asserts that separation occurred some three or four months after cohabitation commenced in November/December 2003. The mother says that their relationship continued “on and off” for another three years until they finally separated in 2006.  While the father asserts that the parties’ full-time cohabitation ceased a few months after their cohabitation, it seems that he agrees with the mother that the parties lived together “on and off” for various periods up until about 2006.  He says in his affidavit that the parties “finally separated during 2006”.

3. In 2006 and 2007 each of the parties moved a number of times within New South Wales and Queensland.  Their respective histories indicate no real stability during that period.  It appears that the parties did not live together for any significant period of time during the period just described.  The parties appear to agree that the father spent time with E (and the other children) by agreement between the parties.

4. In February 2007 an event occurred which clearly appears to be the catalyst for the current proceedings.  It seems that the mother had been living with the father’s sister in early 2007 in northern New South Wales.  The mother left that property and went to live with her current husband in the Hunter Valley at about that time.

5. The factual circumstances in which the children came into the care of the father at that time are confusing and conflicted.  It is not necessary to resolve them for the purposes of the current proceedings.  It is sufficient to observe that in mid-February L and E came into the father’s care.  He deposes that “I decided that it was in the best interests of the girls that they live with me”.  Thereafter the father refused to return the girls to the mother’s care.  At that time L was enrolled at a school in Brisbane and “in before and after school care from 6.15am to 5.00pm” and E “attended the Learning Centre … from 6.30am until 5.50pm on Tuesdays, Wednesdays and Thursdays”.  At that time the father was living with Mr M in a southern suburb of Brisbane.

6. Thereafter litigation ensued between the parties in different forums.  The mother filed an application for an order that E live with her and spend time with the father as agreed between the parties, as well as an application for a recovery order in relation to both children in April 2007.  An order was made in the Local Court at Maitland.  That court transferred the matter to the Federal Magistrates’ Court in Newcastle and made an interim order for the children to live with the mother and a recovery order.

7. On 14 May 2007 an order was made in the Federal Magistrates’ Court at Newcastle adjourning the matter for interim hearing on 8 June 2007 with directions for material to be filed and the children to be brought to the court on the hearing day.

8. On 7 June 2007 the father filed a response seeking orders for the children to live with him and for them to see the mother for half school holidays with changeovers at Coffs Harbour and that there be adult supervision for the children whenever they were with the mother’s former partner, Mr T.  On that day an order was made by that court transferring the proceedings to Brisbane.  Interim orders were made for the children to live with the father and to spend time with the mother one weekend per month in Queensland and for holiday time in the June/July and September/October school holidays together with telephone communication three times per week. 

9. On 14 August 2007 the matter was first mentioned in the Federal Magistrates’ Court at Brisbane.  It was due to be mentioned again on 29 October 2007.

10. In the intervening time, on 21 September 2007, a notification was received by the Queensland Police Service and the Department of Child Safety regarding allegations relating to sexual abuse concerns with respect to E.  Interviews were undertaken with E and L at the N Police Station.  The father was also interviewed at that time. 

11. Some five days later the mother filed an application seeking interim orders for the children to live with her and to spend time with the father supervised at Coffs Harbour, together with an order that the children not be left in the care of Mr M or have any contact with Mr M whatsoever.  The material filed in support of that application raised concerns about allegations of sexual abuse in relation to the children whilst in the father’s care.

12. Two days later the mother filed a Form 4 Notice of Child Abuse or Family Violence in relation to both E and L.  The allegations contained in that document refer to:

    ·    “Sexual abuse and inappropriate touching made in relation to [L] and [E] against [Mr M] and that both children had complained about their vaginas being sore”

    ·    “The children are afraid of going back into their father’s care”

    ·    The children were “riddled with head lice every time they came into our care and their father refuses to treat their hair”

    ·    The mother’s concern that the children are taken to the father’s sister’s residence where she alleges past incidents of the father hitting his sister’s children and issues of abuse related to those children by their own father

    ·    The mother alleges risk of abuse in the father’s care through lack of safe accommodation and that “he does not care for the children appropriately”.

13. On 22 October 2007 the Federal Magistrates’ Court at Brisbane made interim orders for the children to live with the mother and for the father to spend time with the children at the Newcastle Contact Centre.  A further order was made by that court on 19 November 2007 permitting alternative arrangements for visits between the father and the children to be supervised by a Ms S on specified days between Christmas Eve 2007 and 24 February 2008. 

14. E was seen by Dr J at a medical centre on 27 November 2007 and both she and L were seen by Dr H, a paediatrician, as part of, I gather, a consultation with the Sexual Assault Service attached to the Hunter and New England New South Wales Health Department.

15. A Family Report was prepared by Mr C in January 2008 and, on 8 February 2008, the Federal Magistrates’ Court made an order for the father to spend supervised time at the Coffs Harbour Contact Centre and the Newcastle Contact Centre or, if unavailable, the contact centre in Maitland.  Telephone communication was provided for three times per week. 

16. Further orders on 10 June 2008 provided for L to spend time with the father as agreed between the parents and for E to spend time with the father once every two months at a contact centre in Coffs Harbour. 

17. Between October 2007 and the hearing of this matter (approximately 17 months) the father has spent about 16 hours with E.  At the commencement of that period E was 4 years and 3 months old.  She is currently approaching 6.

18. As earlier referred to, it seems clear that a central component of the father’s case is what he asserts to be erstwhile failures in parenting by the mother of her other children.  Evidence before the court lends weight to those concerns. 

19. The mother’s older three children are D (now 18); A (16) and G (15). 

20. D saw a psychiatrist, Dr K, when she was 14.  He reports that, at that time (2004), she was “… very upset with [the] mother and would not consent to her involvement in any way”.  The doctor reports that “… a friend of her mother’s had sexually abused her [D] on a number of occasions”  It is common ground in these proceedings that, as D reported to Dr K, the perpetrator of this abuse was murdered.  

21. Subsequently, D ran away to her mother’s care (she was living with her father in 2004) and Dr K saw her again in 2007 at which time “she was very unwell”.  She was severely psychotic and was eventually admitted to hospital.”   The doctor goes on to report that D’s condition has fluctuated since, but overall she has “managed fairly well”.  The doctor says:

    “She feels a strong connection with her siblings and often talks about them.  She has had a younger brother live with her for a while in an attempt to keep him out of trouble.  She has also had her younger sister and child living with her.”

22. D reports to Dr K that “[S]he has moved in and out of her mother’s home a number of times over the last two years [i.e. when aged 16 – 18] living with her boyfriends or in shared accommodation”. 

23. Matters relating to D’s care by Dr K are an exhibit in the proceedings (ICL 7).  Those notes contain matters of some significance in the context under discussion:

    Tuesday 5/6/2007 12:02pm – “Now staying with mother in [Hunter Valley]. Punched mother last night.

    14/5/08 12.51pm – “She reports that she has been taking her medications, that her mood has been a little depressed, that she has been agitated and angry a lot.  This is to do with her mother.  She cannot accept that her mother has cared so little for her when she was younger as well as now.  She said she wants a mother and that she wants one now.  Has trouble feeling connected to boyfriend and feels like getting away from him.  Explored grief and also the difference between the fantasy concept of mother versus how her mother has really been to her”

    Wednesday 21/5/2008 1:52pm – “Very distressed about her mother.  How can I love her and hate her so much.  She feels that there is no hope.  All she wants now is for her mother to see how much she has hurt her.  She said she feels she has already lost the relationship with her mother so she feels she has little to lose.  She said that her mother would not even look her in the eye when they talk of this. She continues to maintain her mother did not believe her when she first told her of the abuse, that when she first tried to tell her mother she dismissed her and would not listen as she had something else that she wanted to do.  She talked about her suicidal feelings and the pain of living and how she does not know what she would do if her father died.  She continues to be irritable with her boyfriend …”

    Wednesday 6/8/2008 8:52am – “… [She] has returned to live with her father. She lost her medications in the process and has become quite depressed with suicidal ideation but at the same time is making plans for the future and feels the need to support her family.  She said that she now has her 15 year old brother in her custody after he had been locked up by police …”

24. The last reference to her brother is a reference to the mother’s child G now aged 15.  At paragraph 21 of Mr C’s first report dated 18 January 2008 he says:

    “Reportedly, [G] (aged 14) lives with his father, [Mr T].  [The mother] claims that [G] once threatened to hit [E] if she did not perform felatio on him.  It would appear that since that time there has been some safety concerns associated with [B’s] relationship with his sisters.  [The mother] claims that she does not maintain regular contact with her son.”

25. When cross-examined about this incident the mother said that her daughter, D, had told her that L had told D about the incident just described.  The mother said as a result of the incident that she doesn’t “have anything to do with him” (referring to her son G).  She described her daughter D as a “liar”.  It seems to follow logically, then, that the mother acted on the advice of a 15/16 year old “liar” in deciding not to have anything further to do with her then 10 year old son.   I found this evidence remarkable and troubling.

26. The mother’s other child, A, now aged 16, is living with her boyfriend.  She has one child who is nearly two (that is, she became pregnant at 14 whilst living in the mother’s household) and, at the time of hearing, was due to have twins in about 12 weeks time.  A will, then, have three children under three before she is 17 years old.   L now aged 10 sees her father Mr N every second weekend.  The mother describes Mr N as a “binge alcoholic”.

Best Interests – Issues and Considerations

1. As the Act reminds the Court more than once (eg ss 60CA; 65DAA), findings as to best interests are at the heart of the decision and the court’s task is to arrive at orders which best promote the best interests of this particular child in her particular circumstances.

2. That findings as to best interests lie at the heart of every parenting decision is reinforced by the Act providing that those findings are the servant of many masters within the Act, including matters that can be seen as central to Part VII. 

3. Indeed, a central component of the Part – the statutory presumption of equal shared parental responsibility – is, ultimately, governed (in part) by an exception based on findings as to best interests. 

4. So, too, the mandatory consideration of specified periods of time can be seen to be subject to an ultimate consideration of best interests (see the coda to each of the sub-sections of s 65DAA).

5. Ultimate findings about best interests specific to the case before the court rest on a fact-finding or value-finding exercise performed within a mandatory statutory framework.  In particular, the Act prescribes the means by which best interests are to be determined; the heading to s 60CC is “How a court determines what is in a child’s best interests”.

6. Clearly enough, that section, together with complementary provisions of the Act, including the Part’s Objects and Principles, are each central to the court’s role and the orders made by it. 

7. It is, in my view, important to bear in mind that the Act’s mandatory considerations (s 60CC) are, like their predecessor (s 68F(2)), not objective standards (see, eg Secretary, Department of Health and Community Services v JWB & SMB (1992) 175 CLR 218 at 270-2).

8. The s 60CC considerations are signposts or touchstones within which the broad enquiry as to best interests must be conducted.  That the enquiry remains a broad one is evident from the section itself (s 60CC(3)(m)).

9. Furthermore, ascertaining best interests by reference to those mandatory signposts, and that broad enquiry, must embrace the fact that: “[i]t is a mistake to think that there is always only one right answer to the question of what the best interests of a child require … [b]est interests are values, not facts” (CDJ & VAJ (1998) 197 CLR 172 at 219).

10. In my view, then, it is necessary to commence the application of the process required by the Act by examining, and making findings about, the issues specific to the best interests of E and L arising from the issues and proposals previously identified.

11. It will be noted that I have included both girls in the statement just made.  I re-iterate that the father seeks no parenting orders with respect to L.  The father of L is not a party to these proceedings.  I consider it inappropriate to make orders with respect to L at the instance of the mother in circumstances where I have no evidence before me as to either notice to L’s father of these proceedings or any evidence as to his attitude towards such orders being made.

12. However, despite the fact that L is not to be the subject of any parenting orders to be made by this Court, I consider that her best interests are a highly significant matter to be taken into account in considering the best interests of E (see s 60CC (3) (m)).

13. Of course, the sibling relationship and any impact that orders made by this Court have on the sibling relationship, ought be a significant consideration in arriving at E’s best interests (see eg s 60CC (3) (b); (d)).

14. Here, the issues relevant to the parties’ contentions and proposals readily find clear reflection in the mandatory considerations – whether “Primary” or “Additional” – by which the court is to determine E’s best interests.

15. The Primary Considerations are clearly called into question.  The father asserts (implicitly) that E is being denied the benefit of having a meaningful relationship with both parents by being denied a meaningful relationship with him.  Equally, the mother asserts, by reason of her allegations of sexually improper conduct, that E is at risk of physical or psychological harm by being subjected to abuse.

16. So too, the Additional Considerations can be seen to be thrown into stark relief by the issues and proposals of the parties:

    ·    The nature of the relationship of E with each of her parents;

    ·    The willingness and capacity of each of the parents to facilitate a close and continuing relationship between E and the other parent;

    ·    The likely effect of any changes in E’s circumstances including any effect on E of separation from her mother and her sister;

    ·    Face to face time, if ordered, will involve significant practical difficulties and some expense; and

    ·    Inferentially at least, the cases presented by each party raise issues about the attitude to E and the responsibilities of parenthood demonstrated by each of them.

Harm and Unacceptable Risk

1. “Unacceptable risk” is, of course, an expression (sometimes said to be a test) which, in this jurisdiction, has been used where allegations of sexual abuse are made in respect of a child (M v M (1988) 166 CLR 69).

2. It is important to record part of what the High Court said in that case (at 76):

   “Viewed in this setting, the resolution of an allegation of sexual abuse against a person as 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…”

3. Further, in the passage just quoted, the High Court, prior to the passing of the Family Law Reform Act 1995 (Cth), pointed out that:-

   “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.”

4. That is, it seems to me, all the more so now consequent upon the passing of the Reform Act which introduced changes to Part VII of the Family Law Act.

5. Now, just as when M v M was decided, an allegation of potential risk of harm ought not divert the court from the central task of assessing the best interests of E, in which, of course, an assessment of the risk of harm is a “primary consideration”. That the inquiry about harm in the current legislative context occurs in the context of a broad assessment with an ultimate focus on best interests is clear from a number of sections within Part VII, for example, s 65CA and s 60CC(3)(m).

Family Sexual Abuse as a Background to Risk

1. It is significant in my view to record the role that child sexual abuse has played in this family.  The mother told Mr C that L was “sexually abused some years ago by the brother of one of her friends.  She claims that she reported the incident to the appropriate authorities but the man was never charged.” 

2. That same report records the mother telling Mr C that “… [D] was sexually assaulted at aged seven … by [L’s] paternal uncle, Mr […].  [The mother] claims that [the uncle] was subsequently killed by a man who was outraged by the sexual abuse and that man is serving a custodial sentence as a consequence”. 

3. Additionally, there is the incident whereby the mother apparently believes (on the hearsay account of her child whom she described as a “liar”) that her son (then aged 10) threatened to hit E (then aged two) if she did not perform felatio on him.  At the time of the second report (January 2009) the mother reported to Mr C that in respect of G (aged 15) she had not “seen him for some time and does not know where he is currently residing”.

1. The father asserts that the mother indicated to him during the course of their relationship that she too was the victim of childhood sexual assault.  The mother denies this.  Whilst emphasising that I make no finding with respect to whether the mother was or was not sexually assaulted, I prefer the evidence of the father over that of the mother in respect of whether that topic was raised by her in the manner he alleges.

2. In his second report, Mr C arrives at a conclusion which, on the whole of the evidence before me, I agree with.  Mr C says:

   “76.In my opinion, it is unlikely that there will ever be a conclusive resolution to the allegations of child abuse.  In fact, it is my view that the activities, or investigations, of [the mother] and [her husband] have significantly contaminated the issue and compromised any possibility of getting greater clarity.  I consider it likely that at this point [E] has no idea whether or not she was abused by her father.”

3. That opinion is informed by opinions earlier expressed by Mr C in the same report:

   “71.     It continues to be my view that [E] and [L] are most strongly attached to their mother and likely to receive an adequate level of care.  Furthermore, [the mother] can provide continuity and the opportunity to maintain sibling relationships.  Consequently, I consider it appropriate that the girls remain predominantly in her care.  It is my view that the significant issue relates to whether or not [the father] should maintain a relationship with his only child and, if so, how that should occur.

   72.In this regard the question of risk has significance.  [E] made some concerning remarks in regard to her father but I do not consider her comments to be reliable.  It would appear that police and child protection officials are not pursuing the matter.  The children have been medically examined and the findings were inconclusive.  As stated at the time of the initial report it is conceivable that [E] could confuse things that she has heard about and things that she has experienced.

   …

   74.When interviewed at the time of the initial report [the mother] reported that her daughter [D] had been sexually abused by [L’s] paternal uncle, [L] had been sexually abused by an adult friend of her former partner [Mr T], and [G] had attempted to sexually abuse [E].  Regardless of any childhood experience which [the mother] may have had, child sexual assault has had a significant impact on his family.

   75.It appears to be clear that [the mother] and [her husband] are running their own child abuse investigation gathering related “evidence”, although I am confident that they simply do not have the knowledge and skills to do this in a way that would make their evidence at all reliable.  I consider it likely that [the mother], and perhaps [her husband] have been both tenacious and reckless.  Furthermore, it is my view that their activities in this regard have likely resulted in considerable duress for the children.”

4. I agree with the conclusions reached by Mr C in the passages quoted and, specifically, the opinions expressed at paragraph 75 of that report.

E’s  Maturity and Statements Made by Children

1. Of considerable significance, as it seems to me, is that statements recorded as originally having been made by E make no reference whatsoever to the father but only to Mr M (see exhibit ICL4). 

2. It also seems clear that, despite receiving advice from the Queensland Police that they considered that E was not mature enough to comprehend the concepts the subject of the interview, or provide further details of the offence, the mother nevertheless set about on an investigation of her own by, in particular, sustained questioning of E.  The “flavour” of the steps taken by the mother in attempting to elicit disclosures can best be summed up, I think, by the exchange of comments quoted by Mr C at paragraph 53 of his first report:

   “[The mother] claims to believe that the girls were sexually abused by Mr [M] and [the father].  She acknowledges that she has no information in regards to the outcomes of any police or child protection investigations and consequently “I’m just going off what my children tell me.”  She states “I have to believe my children”, although at the same time, in regard to [L’s] alleged disclosures, [the mother] comments “I can’t get a lot out of her”.  The mother reports that both girls have been medically examined with inconclusive results.”

3. The questioning of the child by both the mother and her husband can be summed up by borrowing the mother’s words:  that they were an attempt to “get a lot out of” L and E.

4. Part of the investigation initiated by the mother was to have her sister-in-law (Ms B, who works in the computer industry) conduct questioning of L and E in October 2007.   In providing a prelude to that interview, Ms B deposes to a conversation with the mother where she said “Well, [L and E] have been saying things about being touched by [Mr M].  I am wondering whether you may be able to sit down with [L] and [E] and speak to them about what has been happening, the reason I ask is because [L] has told me that she would be happy to sit down with you and talk about it”.

5. It is also significant to note on the latest occasion when E visited her father, she was aged about 4 years and 3 months. Accordingly, any “disclosures” made by E are made in the context of a nearly 6 year old child purporting to record what had occurred to her when she was no older than 4 years and 3 months.

6. At paragraph 91 of his first Report, Mr C provides the opinion:

   “[E] is of an age and developmental stage [she was aged about 5½ years at the date of interview] where she could lay down memory tracks that would not necessarily distinguish between things she had heard about and things that she had experienced. Furthermore, “touching on a rude part” could be associated with something as innocent as the provision of toileting assistance. [There are allegations that the child made additional specific comments but are considered somewhat difficult to rely on.] In my opinion, in the absence of corroborating information, it is difficult to draw conclusions from the child’s disclosure”.

7. At paragraph 93 of the same Report, Mr C said:

   “However, it is of some relevance that [E] is not of an age and developmental stage when she will have the capacity to clearly articulate her experiences of [the father] or to develop protective strategies. These factors contribute to a level of continuing risk”.

8. Within the context of Mr C’s own assessment, Mr C says:

   “50.[L] reports that she does not visit [the father], and this is in accordance with her wishes. She claims that her position is founded on her understanding that “he did stuff”, to her sister. It also comments that “I don’t remember” what transpired as “I forgot last year”.

9. Similarly, Mr C asked E a series of “random leading questions” which he says “consistently provided the anticipated response”. He used examples at paragraph 58 of his second Report. He concludes that “… [E] had a tendency to be easily led. In my opinion this would not be unusual in consideration of the child’s age and developmental level, and clearly indicates that a level of expertise would need to be employed when interviewing a child in order to secure reliable information”.

10. Paragraph 59 of the same Report provides this troubling observation:

    “In regards to the note presented by [the mother] [E] advised that the contents are “I hate Dad [Jackson]”, and claimed that her mother had told her what to write. When asked if she thinks that her mother is happy for her to spend time with her father, [E] replied “no””.

Observations of Relationships

1. Mr C’s observations of the father with E during the assessment process were:

   “61.… In the session with her father, [E] appeared to be relaxed, interactive and chatty. She and [the father] played with the toys provided. There was no indication of any discomfort or reticence on the part of the child. At the conclusion of the session [E] farewelled [the father] with a hug”.

2. It is to be observed that at the time when Mr C conducted the assessment process, E had seen little of her father in the preceding 14 months or so.

3. An important consideration in allegations of the type here under consideration is the evidence of each of the respective parents. 

Attitudes of the Parents and Veracity

1. Here, despite the orders which the mother now seeks, she clearly spelt out her position with respect of the father sexually abusing the children, and E in particular.  She was asked whether, if the court made specific findings that the children had not been sexually abused, how she thought she would react.  She responded that she would “still believe the children”.  She said in the witness box that she “wouldn’t encourage [E] to see her father unless she was ordered to” do so but she would if she was ordered to do so.  She also said that she had “considered having [E] hypnotised to prove that she had been sexually abused but doctors told her not to”.

2. A DVD was played at the request of the mother.  It was a DVD she had taken of the child.  She said it included disclosures made by the child.  That DVD became exhibit ICL1. 

3. In general terms, the DVD seems to me to disclose language and behaviour consistent with the police conclusion about E’s incapacity to provide a coherent account that might have forensic meaning. 

4. The child is chided by the mother for not answering “sensibly”.  E is told that she is “being silly”.  My observation was the child was being a perfectly normal young child enjoying her bath time.  The mother specifically asked the child “Does anybody touch your bum?” to which E made no reply.  When asked why her “bum was sore” E answered “Because”.  She gave that same answer twice, in response to the twice-asked question.  The mother then asks the child “What does mummy do when she touches your bum?”.  The child responds “Don’t look at it”.  The mother then asks “Why do I look at?”.  The child responds “Sore”.  The child was then asked “Why does daddy touch your bum?”  The child’s response is “Make stuff … Food and that”.  On the second part of the video, taken (allegedly) a couple of days after the part in the bath (both parts of the video occurring after E had spoken to the police) E was asked whether “you were scared when in Brisbane with [the father]”.  The child responds “No”. 

5. The mother indicated in the course of evidence that a number of bits of the video had been left out.  In short, the DVD was edited by her.

6. I found the mother’s evidence in respect of the shooting of the video footage, the compilation of it and the compilation of the CD on which it is now contained to be utterly unsatisfactory.  I consider her explanation for why bits were left off it to be unsatisfactory and I strongly suspect that the video has been edited so as to provide what the mother, at least, considers to be the impression most unfavourable to the father.

7. In final submissions it was submitted on behalf of the Independent Children’s Lawyer that the mother’s allegations of abuse were “contrived” and “fabricated” and had been done in an “opportunistic” manner and in an insightless manner.  It was submitted that the timing of the allegations, which are coincident with the existence of proceedings and the children living with the father, provided a basis for drawing such an inference.  Secondly, it was submitted that there were inconsistencies between parts of the affidavit material of the mother and what had been said by her to other authorities. 

8. I do not consider the evidence referred to by counsel for the Independent Children’s Lawyer is such as to allow me to draw the inference sought.  Such a finding is a matter of considerable gravity and I would not make such a finding on the balance of probabilities unless I was firmly convinced that there was a cogent evidentiary foundation for it.  I am not convinced that that is the case here.

9. I find that the father was an essentially truthful witness.  I consider him to be an unsophisticated man. Equally, as will emerge, I consider that he is an inexperienced parent who possesses little real insight into the day to day issues, practicalities and concerns relevant to day to day parenting.

10. The father denies categorically any sexual impropriety toward his daughter.  So, too, he denies any sexual impropriety of any type towards L.  I believe him.

11. I am satisfied on the whole of the evidence before me that I can find that the father does not present an unacceptable risk of harm to either child.  Specifically, I am unable to find that the father spending unsupervised time with E gives rise to the need to protect her from harm or is likely to expose her to abuse or harm of any kind.

Considerations and Advantages and Disadvantages of Proposals

Views

1. Plainly enough, E is too young to express any views in the sense of statements that might indicate a mature and considered approach to aspects of her co-parenting.

2. However, E’s voice is heard in these proceedings by reference to the observations of Mr C, including the things that E has said, also, and a consideration of more subtle manifestations of her views through, for example, her attachment to each of her co-parents.

Fulfilment of Parental Obligations

1. Section 60CC(4) and (4A) oblige the Court to consider the extent to which each of the parents have fulfilled their parental responsibilities and obligations including, in particular, events that have happened and the circumstances that have existed, since separation between the parties occurred.

2. As is recognised in s 60CC(4) this obligation overlaps to a certain extent with the obligation to consider, if relevant, “the attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child’s parents” (s 60CC(3)(i)).

3. I have already referred to the chequered parenting history of the mother with respect to her older children. The evidence provides other examples of the exercise of parental responsibility by the mother that falls short of that which might be expected of a responsible parent.

4. E and L (then aged 3 and 7 approximately) were left in the care of the mother’s child D when D was about 15, whilst the mother and her partner went to W. Her reason for doing so, was her partner at the time “had an appearance in court”. It will be remembered that D suffers from various significant mental health issues and has had what the mother admits is a “on and off” and at times “angry and difficult” relationship with her.

5. It will also be recalled that the father took possession of L and E in February 2007 and refused to give them back into the care of the mother.  E had not been absent from her mother’s care (or alone in her father’s care) for any significant period of time. Whilst the father’s motives, in that respect, might – at least from his perspective – have been child-focussed and borne out of concern for the children’s well-being, I consider that the father’s evidence, when taken as a whole, exhibits very little insight into the possible effects of the children’s separation from their mother.

6. The mother agreed that the children’s school records (L is in year 5, and E in year 1) indicated “numerous occasions” when the children were late or absent. When asked to explain this, the mother said that the children were “having nightmares” and it was taking ages for them to wake up. When asked about absences as a result of sickness, the mother said this was “mainly from nightmares” and when asked to explain further, indicated that they were sick from “not getting enough sleep”.

7. I doubt the truth of these statements. Whilst it may be correct to say that each child has suffered nightmares, I do not consider that those nightmares provide an explanation for the children being late to school, or their absence from school through “sickness”. I consider that the children’s attendance records at the school reflect poorly on the responsibilities of parenthood exhibited by the mother.

8. In cross-examination it was put to the father that he had received from the mother’s lawyers, an authority signed by her permitting him to receive all such information as he might reasonably desire from the children’s school. He said he “put it aside and didn’t read it”. He agreed that at no time prior to receiving that letter had he taken any steps to try and contact the school to ascertain any information about the progress of either child.

9. The father attempted to explain the absence by reference to the conflict that had existed between he and the mother. I am not satisfied with his explanation, and I consider that his failure to take any steps to make any enquiries about the children’s progress at school reflects poorly on his responsibilities as a parent. Whatever failings the mother may have as parent – and I consider the evidence reveals that she has significant failings in that respect – the evidence plainly indicates that E is closely attached to her. The evidence is equally plain that the mother is the parent who has provided the vast majority of E’s day-to-day needs and nurturing since she was born.

Nature of Relationships

1. At the time of Mr C’s first assessment in January 2008, he described both children as appearing “to be developmentally within the normal range, although [E’s] speech was perhaps less clear than what one might anticipate of a child her age…”

2. At that time [L] described to Mr C living with her mother and her husband as “good”. L and E lived with the father for approximately 9 months between February and October 2007. Of that time, L told Mr C that she “missed her mother a lot”.

3. It is to be observed that there was, (what I consider to be significant) incongruity between statements made by L on that occasion, and the observations of the interaction between L and the father.

4. In summarising his assessment of the nature of (both children’s) relationships with their parents at that time, Mr C said:

   “In summary, [L] and [E] appear to be well-cared for. I consider it most likely that their strongest bond is with their mother. However, there is no indication of any discomfort while in the company of [the father] and their demeanour with him can be appropriately described as relaxed.”

5. Twelve months later, Mr C’s assessment of E (then aged approximately 5.5) was that:

   “52.She attended well and her comprehension was good, although her articulation continued to be somewhat unclear…

   …

   54.… [E] generally enjoys good physical health, and appeared to enjoy her kindergarten experience. She identifies no particular developmental problems.

   …

   61.… In the session with her father, [E] appeared to be relaxed, interactive and chatty. She and [the father] played with the toys provided. There was no indication of any discomfort or reticence on the part of the child. At the conclusion of session [E] farewelled [the father] with a hug.

   62.In summary, [L] and [E] present as well cared for. I consider it most likely that their strongest bond is with their mother. However, [E] also presented as relaxed and happy in the company of [the father].”

Changes and Parental Capacities

1. I consider that “the likely effect of any changes in [E’s] circumstances, including the likely effect on [E] of any separation from [the mother, her husband and L] with whom [E] has been living” (s 60CC(3)(d)) to be a particularly significant issue in determining E’s best interest.

2. Amidst what I have found to be aspects of a failure in the exercise of appropriate parental responsibility on the part of the mother, and a significant lack of stability, I consider the relationship between E and L to be particularly important and beneficial for each of them.

3. On the whole of the evidence, I am satisfied that the relationship between the mother and her husband has introduced a level of stability into the mother’s life, and the children’s lives, probably not present prior to that.

4. A move for E to her father’s care would see her moved to an unfamiliar place with unfamiliar surroundings; a new school; new friends and peers; and into the full-time care of her father whom she has only seen for a total of about 16 hours in the last 18 months or so.

1. Significantly, as it seems to me, such a change would also necessarily involve a disruption in the day-to-day relationship with her sister L.

2. It is argued that the father is an “untested parent”.  Whilst this expression is frequently used in proceedings in this Court, it needs to be observed, in my view, that every parent is, before they have a child, and untested parent.

3. Here, though, there is evidence that the mother provided the vast majority of the nurturing of E during her life (albeit, as I find, with some deficiencies) and, importantly as I see it, the father’s insight into the nature and breadth of day-to-day parental responsibility as a single parent, to be significantly lacking.

4. In his oral evidence, Mr C described the removal of E from her mother and being placed with her father full-time, and the separation of E from L as being “a huge step” for E.

5. Mr C was specifically asked in cross-examination whether, before taking such a step, it was better to first ascertain whether a meaningful relationship could be developed by E spending block periods of time with her father. Mr C described such a proposition as “better by a country mile than shifting [E] at the moment”.

6. In giving that evidence, Mr C acknowledged that there were risks of emotional harm to E in leaving her in the mother’s full-time care.  He described those risks as, in effect, being exposed to allegations against the father by the mother; failings in parental responsibility reflected in attendance at school; and an unwillingness to promote the relationship between E and her father in an appropriate and meaningful way.

7. It is also relevant to consider, in the context of an analysis of the parties’ respective capacities to parent, the opinions of Dr U, consultant psychiatrist.

8. Dr U is of the view that neither party “exhibited a psychiatric disorder”. However, she was of the view that “the mother gave a history of a chaotic lifestyle suggestive of a non-specific personality disorder”.  The doctor was of the view that “the father had some features of an anti-social personality disorder”. In respect of each, Dr U is of the view that “the likelihood is that these personality disorders would have an impact on the children and on the parent’s capacity to support the relationship with the other parent”.

9. Dr U is also of the view, in respect of the specific allegation by the mother that E was urinating on towels and clothes, that, if this behaviour was accepted by the Court it “may indicate psychological abuse”.

10. I accept the evidence of the mother that E engages in that behaviour, but my overall view of the veracity of the mother is such that I am left in some doubt as to the nature and frequency of that behaviour. However, the “investigation” carried out by the mother in respect of what she apparently believes to be the sexual abuse of E, is, in my view, likely to have caused E significant stress and might be seen as a form of emotional abuse.

11. That last matter is, in my judgment, also a very important consideration in the determination of orders which best meet E’s best interests.

Willingness and Capacity to Promote Relationship

1. An important part of the willingness and capacity of the mother to promote a relationship between E and the father relates to the mother’s belief that he has engaged in sexually inappropriate behaviour toward her.

2. Whilst I am tolerably satisfied that the mother’s belief is genuine, I consider that it is impacted upon by the apparent prevalence of sexual abuse within her immediate family; her personality structure commented upon by Dr U; and her attitude towards the father which allows her to readily accept any information adverse to him and exclude other explanations.

3. The evidence of the mother herself, referred to earlier in these Reasons, that she would not encourage E to see the father unless she was ordered to do so, but would encourage her to do so if ordered. Such a statement not only gives cause for concern about the mother’s sincerity in promoting and encouraging a relationship between E and her father, but also gives rise to concerns about her capacity to do so.

4. It is submitted on the mother’s behalf that there is no degree of contrivance on her part, in seeking to put forward her beliefs about sexual abuse and that I would find the mother to be an unsophisticated person who has accepted at face value what her two youngest children have said to her.

5. It is also submitted that people can learn from their mistakes and the mother has, and can continue to do so in the future. Mr McGregor points to there being no involvement with the Department of Communities (Child Safety Services) since the children were returned to the mother in October 2007 despite there being relatively significant involvement prior to that time.

6. Dr U (and Mr C) are each relatively pessimistic about the prospects of counselling assisting either party and, in particular, assisting the mother in respect of her belief system.

7. Mr McGregor submits on the mother’s behalf, that there is a distinction between cases where insight can be gained from within on the one hand, and where insight can be gained from external sources on the other. He submits that the latter is applicable here, and that the mother can learn from qualified specialist outside sources.

8. Dr U is of the opinion that the father “appeared to possibly have some cognitive difficulties”. I am also very conscious of the fact that the father represented himself in these proceedings.  Nevertheless, the proposal of the father for time between E and her mother presents some significant concerns.

9. It will be recalled that the father proposes that the mother expunge her belief systems about him by reference to an appropriate specialist and, once that is done, he sees no restriction on time between E and her mother (save as imposed by the geographical separation between them).

10. When questioned about this, the father said “hopefully we can get this medical thing sorted out and only need one supervised visit”.  Yet, when asked how important he considered the mother was in the lives of the children, including E, he thought for a considerable period of time and then said “she has to know her mum, but I just don’t agree with her parenting.” He went on to say “I think [E] could have a better role model”.  When asked what he thought the mother could offer to E, he responded “I think she loves [E].”

11. In submissions, the father said that the mother’s mental health, and in particular, her belief system “needs an in-depth investigation”.  He went on say “If that’s all clear, she should get unsupervised visits”. He indicated, when this was explored with him in evidence that he couldn’t say how or when this might occur because he didn’t have medical expertise: “that wouldn’t be my decision because I don’t understand the medical side of it… I need someone with medical education to prove that [the mother] is over the problem”.

12. Clearly enough there are difficulties and uncertainties inherent in any such proposal.  That such a proposal is put forward in those terms, also though, casts doubt, if not upon the sincerity of the father in seeking to nurture and develop a relationship between E and the mother, then at least on his capacity to do so.

13. The question is immediately begged: when, if ever, and how could the father ever be satisfied that the mother’s “mental condition” had been expunged to his satisfaction?

Best Interests - Summary

1. I have some significant doubts whether the mother will promote a meaningful relationship between E and her father if she is to remain in the full time care of her mother.  

2. Further “investigation” of a belief by the mother that E has been abused at the hands of the father will, I find, be extremely difficult for the mother to curtail, particularly if unsupervised time is ordered with the father.

3. However, if I am tolerably satisfied that orders, including injunctive orders, addressed to the mother as well as the hearing process itself and these reasons – and particularly the determination of the issue of unacceptable risk – can be a catalyst for change on the part of the mother. 

4. There is good evidence which satisfies me that E should enjoy a relationship with her father that has meaning for her, bounded though it will necessarily be, by the geographic separation between her parents.

5. I find that no unacceptable risk (of sexual or other harm) attends E spending such significant time with her father as the bounds of their geographic separation will permit.

6. I consider that the past parenting of the mother and the father has had some significant failings.

7. I consider it likely that, since her marriage to her present husband, the mother has attained greater stability in her personal life, and parenting, than she has had in the past.

8. However, the mother’s past history and, in particular, the manifestation of her beliefs about sexual abuse including the continued interviewing of both children, and E in particular, about that sexual abuse has caused E significant emotional stress and might even provide an explanation for E’s urinating behaviour about which the mother is concerned.

9. Behaviour by the mother, (by words or deed) which inculcates or continues a belief in E (or L) that either has been sexually abused at the hands of the father is likely to be emotionally damaging to them if it does not stop.

10. My concerns about the impact of the mother’s attitudes and behaviours discussed in these reasons is such that E being placed in the full time care of her father is indicated as a real possibility in her best interests. 

11. However, I consider that such a placement represents a very significant change for E and presents a substantial risk to her emotional wellbeing.

12. Conversely, E’s current circumstances include a day-to-day relationship with her sister L.  I consider the continuation of that to be highly important to E’s emotional wellbeing (and, equally, it might be said, L’s emotional well being).

13. But, the mother’s attitude and behaviours need to change. If they can, and E can have as meaningful a relationship with her father as geographic circumstances allow, E will have the opportunity to experience her father’s co-parenting and involvement in her life into the future. In those circumstances, a change of E’s full-time care is contra-indicated in her best interests. As such, E should remain in her current environment which, very significantly as it seems to me, would see the continuation of her relationship with her sister. 

14. I accept ultimately the submissions of Mr McGregor that a combination of the proceedings, these reasons for judgment and the mother’s access to professional assistance provide a basis for optimism about the capacity of the mother to change.

15. In the latter respect, I do not consider that I should order either party to attend any form of counselling – that is a decision, as it seems to me, for them to make by themselves by reference to what they perceive (as distinct from what the court perceives) to be the need for same and the degree to which it may assist them as parents.

Interim Orders?

1. Each of the Independent Children’s Lawyer and the mother contend that interim orders should be made if I consider a move to the father’s full-time care is not in E’s best interests.

2. Interim orders have the very significant disadvantage of not bringing finality to litigation (and the behaviours associated with litigation and the stresses it brings on all parties, and, most particularly, children). This is an outcome which the Act itself sees as undesirable and which, in any event, I would have thought is undesirable in the best interests of children in the usual case.

3. An outcome resulting in interim orders is a solution significantly less than ideal. However, alternative proposals for E’s care are also significantly less than ideal.

4. The proposal of the father results in the changes and the uncertainties with respect to time between E and her mother to which I have already referred.

5. Final orders as sought by the mother do not allow the court to do such as it can to facilitate change on the part of the mother so as to promote appropriate involvement of both parents in E’s life.

6. Significantly, interim orders provide the opportunity for both parents to grow, as parents, to change and to instigate, and make work, court-ordered time arrangements.

7. In addition, interim orders might be seen as providing the court with significant additional information in respect of a child who will be older and parented by the parties who have had the opportunity to hear what was said in the proceedings and to have considered the matters contained in these reasons for judgment.

8. On balance, then, I propose to make interim orders whereby E continues to live with her mother but spends periods of block time with her father consistent with the geographic separation between parents and E’s schooling.

9. I propose to do so in circumstances where a future report from Mr C will potentially illuminate any actions, or inactions, on the part of the parents in an approximate 12 month period from the date of these orders.

Equal shared Parental responsibility

1. It is submitted by counsel for the Independent Children’s Lawyer that, in the event that the court intended to make interim orders, the question of whether equal shared parental responsibility should be ordered should be “deferred”. The Full Court in Goode & Goode [2006] FamCA 1346 held:-

   “65…. …
   3. If it is appropriate to apply the presumption it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the court considers it would not be appropriate in the circumstances to apply it (s.61BA(1) and s.61BA(3)).”

2. Here, the parties each seek an order for equal shared parental responsibility although the self-represented father made no distinction between interim and final orders in that respect.  Nor were any submissions made on behalf of the mother in the specific respect.

3. It seems to me unlikely that any decisions about “major long term issues” are likely to be need to be made in the 12 – 18 months contemplated by the interim orders which I will make. During that time an Independent Children’s Lawyer will remain and the orders I will make contemplate a further report by Mr C.

4. In all of those circumstances I consider it appropriate to make an interim order in respect of equal shared parental responsibility.

I certify that the preceding one hundred and seventy eight (178) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate: 

Date:  26 June 2009