Heinrich and Daniels

FAMILY COURT OF AUSTRALIA

HEINRICH & DANIELS

[2009] FamCA 103

FAMILY LAW – CHILDREN - With whom a child lives - Best interests of child

Family Law Act 1975 (Cth)

APPLICANT:

Ms Heinrich

RESPONDENT:

Mr Daniels

INDEPENDENT CHILDREN’S LAWYER:

Robert Halliday and Associates

FILE NUMBER:

MLF

6464

2001

DATE DELIVERED:

5 February 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Dessau J

HEARING DATE:

5 September 2008, 21 - 23 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Berkovitch

SOLICITOR FOR THE RESPONDENT:

Vivienne Mavropoulos

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Williams

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Robert Halliday & Associates

Orders

That …born … February 1997 (“the child”) shall live with her father.
That the father shall have sole parental responsibility in respect to the child.
That the mother shall be able to communicate with the child by cards and letters and be able to forward gifts to her by mail to the father’s postal address and the father shall immediately notify the mother of any change in that postal address.
That the father shall forward to the mother copies of the child’s school reports, and be permitted to modify the same to exclude the names of teachers and the identification of the school.
That the mother shall be and is hereby restrained from:
(a)Approaching the child or knowingly being within a 500 metre radius of her; and
(b)Attending the child’s school or contacting any members of the staff of her school.
That subject to rights of appeal in this case, the mother shall be restrained for a period of three years from the date of these orders from issuing any further applications in respect to spending time with or communicating with the child without first obtaining the leave of the Court.
That pursuant to section 128(7) of the Evidence Act (Cth), a certificate shall issue to the mother in relation to the evidence transcribed in this case on 21 January 2009 from pages 1 to 11.
That pursuant to s 65DA and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all existing applications shall be otherwise dismissed and removed from the list of cases awaiting finalisation.
That the appointment of the ICL shall be discharged.
That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

IT IS NOTED

That the mother was this day provided with a Certificate pursuant to s 128 of the Evidence Act 1995

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 6464 of 2001

MS HEINRICH

Applicant

And

MR DANIELS

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The subject child is about to turn 12. When she was little she lived with her mother, but for almost eight years now she has lived with her father. For the past almost 3½ years of that time, she has had no face-to-face contact with her mother.
For several years after the child moved to her father’s care in 2001, she saw her mother only for short periods supervised by the Department of Human Services. Then in May 2004 consent orders were made in this Court for a supervised contact regime. Unfortunately, it did not last. Gordoncare refused to continue supervision after four visits. A former DHS worker, Ms Z, then supervised contact on five occasions. She refused to supervise beyond September 2005, after an ugly incident in which, according to her, the mother viciously punched the child in the chest and stomach. That is disputed by the mother, but Ms Z immediately stopped contact, and made a report to police.
The mother wants the child to live with her. She is utterly convinced that the father is a paedophile and that he has sexually abused the child since she was aged about 3.
The father – and the child – are adamant that no sexual abuse has ever occurred. Despite numerous complaints to DHS and the police, no such abuse has ever been substantiated. The mother is critical of the authorities for failing to protect her daughter.
The father wants an order for sole parental responsibility, that the child live with him, and that there be no face-to-face contact at this stage with the mother. He relies upon the substantial expert evidence to the effect that the mother suffers serious mental illness, and that she presents an unacceptable risk of psychological and physical harm to the child. The Independent Children's Lawyer fully supports the father’s position, and his application for an order precluding the mother from bringing any further proceedings before the court for three years, unless she first obtains leave.

MATERIAL RELIED UPON AND ORDERS SOUGHT

The mother relied upon the following documents:
(a)Her amended application filed 15 January 2009
(b)Her affidavits filed 5 October 2006 and 15 January 2009
(c)Her parenting questionnaire dated 3 September 2008.
She represented herself throughout the hearing. I ensured at the outset that she received copies of pertinent sections of the Family Law Act 1975. She also had the benefit of some small but helpful concessions by counsel. For example, the ICL cross-examined the father first, to help the mother understand the questions she then needed to ask.
The father relied upon the following documents:
(a)His response filed 31 October 2006
(b)His affidavits filed 31 October 2006 and 19 January 2009
(c)His parenting questionnaire dated 2 August 2008.
The ICL relied upon the following documents:
(a)The affidavit of Ms S the Family Report writer, filed 19 January 2009 (attaching the report of May 2007)
(b)The affidavit of psychiatrist Dr E filed 19 January 2009
(c)The affidavit of the contact supervisor Ms Z filed 19 January 2009
(d)The affidavit of DHS worker Ms B filed 10 May 2004.
The DHS worker, Ms B, was required by the mother for cross-examination. Counsel for the ICL advised that she had left DHS and could not be located. That reduces the weight that I can attach to her affidavit. Still, it offers some useful chronological and historical detail about abuse allegations.
The ICL also relied upon the transcript of the evidence of Dr K, given in the proceedings before Young J on 11 May 2004 (before the consent orders were made). Young J ordered that the transcript be made available to the ICL, DHS and the parties. Ultimately the ICL gave it to Dr E, and he referred to it in forming his opinion about the mother’s mental health. Dr K’s evidence related to his diagnosis and treatment of the mother and her failure to comply with treatment. There was no objection to the transcript being before me.

RELEVANT LEGAL PRINCIPLES

Section 60B(1) of the Family Law Act sets out the objects of Part VII of the Act, to ensure 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.
Section 60B(2) sets out the principles underlying those objects. They 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).
In deciding a particular parenting order the best interests of the child are the paramount consideration (s 60CA). Section 60CC(2) and (3) set out the primary and additional considerations for the court in determining what is in the child’s best interests. I will return to the detail below. Section 60CC(4) provides that the court must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent, and the court must have regard in particular to events that have happened and circumstances that have existed since separation (see s 60CC(4A)).
There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA). The presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with each parent. The presumption does not apply if there are reasonable grounds to believe a parent has engaged in abuse of a child or family violence. It can also be rebutted if the court is satisfied that it would not be in the child’s best interests for there to be equal shared parental responsibility.
In the event of an order for equal shared parental responsibility, the court is then required to consider the child spending equal time with each parent, or otherwise substantial and significant time (see s 65DAA).

THE ISSUES

The contentious issues can most conveniently be considered under the umbrella of the s 60CC(2) and (3) considerations. I will first deal with the primary considerations under s 60CC(2).
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
The child says, and the father acknowledges, that she is sad about not seeing her mother. I must weigh that sadness, together with the obvious general principle that it is preferable for children to have a meaningful relationship with both their parents, against the other primary consideration, being the child’s protection. That is a significant issue in this case, as is each parent’s capacity to parent their daughter.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
From the mother’s perspective, the child has repeatedly complained of sexual abuse by her father, but she has never been protected by the police, DHS, or the courts. The mother is aggrieved that the authorities, far from listening to and protecting the child, were instrumental in moving her from her home to the father’s, and then in stopping contact with her. It was clear throughout her evidence that the mother still keenly holds the view that the father is a paedophile, that he abuses the child, that the child is not free to say that it occurs, and that the authorities have been complicit in that abuse.
From the father’s perspective, at the heart of this case is the need to protect the child from her mother’s unrealistic but unwavering view that she has been sexually abused. It is a view that he says has always been and remains completely unfounded, and is a symptom of the mother’s delusional state. The substantial expert evidence as to the mother’s mental state supports the father’s version. So too does the child’s own account. The incidents surrounding supervision in 2004 to 2005 also support the father’s view of the on-going risks to the child in spending face-to-face time with her mother. I am satisfied that the child needs to be protected from her mother’s views. It is essential to her well-being, but I shall consider each aspect in detail below.
I turn to the additional considerations.
(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;
Ms S, the Family Report writer, interviewed the child in the course of six different reports between 2000 and 2007. The last time was at the end of 2007, when the child was 10.
Ms S observed the child to enjoy a comfortable, warm, and close relationship with her father. The child described him as the adult she would like to have on an island with her. She said “He’s really nice.” When asked about his positive attributes she said:
“There’s too many. I can’t think of which ones (good things) to choose.”
She said she had nothing to say that was not good about him.
When she was asked the positive attributes about her mother, the child said:
I can’t remember ’cos I don’t see her too often. I know there is some. I do know that.
The child was asked if there was anything not good about her mother, she said:
Sometimes she scares me a little bit when she does strange things.
The child repeated the concern about her mother’s strange behaviour a number of times. She described it as “strange” when her mother came into her home on Halloween about two years ago. The child said she hid in her room. Although the child said she did not recall when she last saw her mother, she agreed she had a feeling she was scared of the mother because of “…the way she does strange things and I don’t know what the next strange thing might be.”
The child told Ms S that she did not want to see her mother. She said “I think I’d like it if she wasn’t so unpredictable.” She did however concede that she misses her mother. She said that the father talks to her about her mother “sometimes”, and that he sometimes asks her if she wants to see her mother, or how she feels about that. She said that her father never said nasty things about her mother. She said that she did know that her mother loves her and would not intentionally do anything to hurt her. She also spoke about how she thinks her father would not mind her seeing her mother so long as she feels okay about it and she is safe.
Ms S asked the child if there was anything she would like her to tell the judge. She replied “Probably the stuff that I’ve already told you.”
In her evaluation, at para 61, Ms S wrote:
[The child] does not want to see [the mother] or speak to her by phone and is frightened of [the mother] and described her as being weird and unpredictable. [The child] has not seen [the mother] since September 2005, which was when [the mother] allegedly physically assaulted [the child] in front of Ms [Z] who was the supervisor of [the child’s] visits with [the mother]. From 2001, [the mother] has continued to claim that [the father] has sexually abused [the child]. Over the years, [the mother] has questioned [the child], has examined her body and has harassed her about being sexually abused by [the father]. Due to [the mother’s] continual claim that [the father] has sexually abused [the child], [the child] has over the years had to endure many interviews by professionals including counsellors, a psychiatrist, child protective workers and the Police. Through the years up until September 2005, the time [the child] has spent with [the mother] has been supervised. In my view this has continually placed [the child] and [the father] under stress. I believe that [the child’s] view not to see [the mother] should now be given weight and considered strongly.
The ICL spoke with the child just days before this hearing started, and the child remained of the clear view that she did not want to see her mother.
I trust the experience and expertise of Ms S, and accept her professional opinion that the child’s expressed wish not to see her mother should be given weight and strongly considered.
There does not appear to be any substance to the mother’s suggestion that the child feels obliged to say that she does not want to see her, simply to keep her father satisfied. There was no suggestion in the Family Report that the child appeared coached by or frightened of her father. To the contrary, they related warmly. The child was able to freely express that she did miss her mother. It was clear from the child’s casual comments that she can discuss her mother freely in her father’s household. She has photos of her mother on display in her bedroom, as well as family albums with photos of her mother and maternal relatives. Ms S was not concerned that the child felt any pressure from her father. However, over the years, Ms S has been concerned that the child felt pressure from her mother, to please her, by saying what she wanted to hear.
The child has been through a great deal, including many interviews and protracted court proceedings in this and the Children's Court. She is almost 12. I accept the expert evidence of Ms S that her views must now weigh heavily in my deliberations.
(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);
(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:
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
I have no doubt that the mother dearly loves the child. Her profound pain in not being part of her life was palpable. She was sad and tearful when she spoke of that. It is understandable. She was initially the child’s primary caregiver. It is a testament to the bond they shared that although the child does not feel comfortable pursuing the relationship at present, she does talk of missing her mother. There is a base of fondness which hopefully can be built upon, even if it is later than sooner.
I am persuaded by the expert evidence that the mother is unwell, and that her mental illness interferes with her capacity to parent. Unfortunately, to make it worse, she has not accepted the diagnosis, and has not or will not comply with treatment.
Dr E, an experienced psychiatrist, saw the mother for assessment three separate times. The last time was in August 2008. Although only the last report was before the court, the fact that Dr E had the opportunity to make several assessments bolsters the professional opinion now expressed by him.
Dr E diagnosed the mother with a Delusional Disorder. He expressed the following opinions, although acknowledging that he had not interviewed the father or the child:
1.[The mother] has a Delusional Disorder. Treatment by Dr [K] has not brought about any resolution of her delusional state and she remains currently untreated and delusional.
2.[The mother] has no insight as to her daughter’s best interests. She remains firmly of the view that she needs to remove the child from her father in order to save her from further abuse. She believes that [the child] should receive counselling.
3.Such a course of action would be harmful, given there has been no substantiation of any abuse by [the father] of [the child].
4.Given her conviction and her various behaviours in the past, and allegations of abuse of [the child], [the mother] remains a risk to her daughter accordingly.

In his evidence, Dr E emphasised the poor prognosis for the mother given that she had not been able to maintain and comply with Dr K’s treatment. He said that even with treatment, her prognosis was “guarded”. She might not improve, given her unchangeable attitude about her daughter and sexual abuse.
Dr K saw the mother 25 times between December 2002 and January 2004, upon referral by DHS. As noted, I have the transcript of his evidence before Young J during the May 2004 hearing. I am conscious that the mother chose not to cross-examine Dr K at that hearing. Although she was unrepresented, she did choose to cross-examine another psychiatrist. In any event, to understand Dr E’s evidence, I need to refer to what Dr K told the court, although Dr E emphasised that he largely based his opinion on his own observations of the mother.
Dr K said he treated the mother for a psychotic illness, and also to support her in dealing with the loss of custody of her daughter. He described the psychotic illness as a “delusional disorder paranoid type”. His diagnosis was confirmed by a psychiatrist colleague from whom he sought a second opinion. Dr K gave detailed evidence about the mother’s delusions not only about sexual abuse, but much more broadly. For example, he said she claimed that strange people had been driving past her house making crucifix signs, and that at one stage she spoke of the child having “lost her nipples”.
Dr K also referred to concerns the mother was non-compliant with treatment, that she and the maternal grandmother had a shared delusional disorder, and that she lacked judgment in her expectations or understanding of the child’s capacity as a five- or six-year-old child. He reported that the mother had been sending him inappropriate SMS messages, including a diagram of a penis and explicit sexual comments about the child’s on-going sexual abuse. Dr K refused further professional involvement with the mother.
Ms S was concerned about the mother’s capacity to care for the child. She expressed her opinion (at para 64 of her most recent report):
It seems that [the mother] has not changed her belief that [the child] has been sexually abused by [the father] and the focus of [the mother] is to have [the child] removed from [the father]. It seems that the manner in which [the mother] continues to hold the belief that [the father] has sexually abused [the child] is consistent with [the mother] suffering delusions. [The mother] has no insight into how the current circumstances have come about and she is not prepared to or she is unable to accept that [the father] is an appropriate and caring parent to [the child]. [The mother] does not attend a psychiatrist and does not accept that she needs to make changes to how she perceives the relationship [the child] has with [the father]. Over the past six years at least, [the mother] has not accepted that [the father] is a valuable and significant person in [the child’s] life and I do not believe that [the mother] will change this view in the future nor will she change her belief that [the child] is at risk with [the father].
It was Ms S’s professional opinion that, as the mother does not appear to have the capacity for change, if the child started to spend time with her again, it is likely that the mother’s anxiety and delusions would be reinforced, and she would not be able to contain her delusional fear of abuse. The child would need to be constantly vigilant and alert when with her mother, and would not be able to relax and enjoy her childhood. Ms S expressed the strong and clear view (at para 66) that face to face contact with her mother is not in the child’s best interests, because the mother’s behaviour is likely to be detrimental to the child’s health, welfare and psychological well-being.
Ms S added that if the child does not see her mother, the child will have time to repair and recover, and to create her own identity outside the context of her mother’s apparent mental health. She was concerned that if the child is not given time out from seeing her mother, she may feel that she has no control over her life. Ms S underlined that the child is on the cusp of adolescence - a vulnerable time - and that there may be risks to her emotional development and mental health, for example, she could develop an eating disorder as an attempt to gain inner control of herself.
Ms S concluded (at para 69) that:
…While it is not generally considered positive for a ten-year-old child not to see a parent, in this case, I believe it is now the only option to preserve [the child’s] emotional well-being.
I note that although only Ms S’s most recent report was relied upon in this case, her involvement commenced with the family in 2001. She wrote six reports. That familiarity underpins and in my view adds weight to her opinions. Her earlier reports apparently did not reach the sad conclusion that the child should not see her mother. By the time of the last report, Ms S believed it was the only remaining option to protect this child.
The other evidence before me supported the expert evidence to the effect that the mother has no insight into her disorder or its impact on the child, that she continues to hold the unassailable view that the father is a paedophile and that the child is sexually abused in his care, and that she does not believe that she needs any treatment for her mental health.
The mother would say that the authorities have never properly investigated the sexual abuse allegations. The evidence does not support that. I note the long-term involvement of both DHS and police, and Ms B’s detailed report about four notifications. Although Ms B was not able to be cross-examined, there is agreement about her account that in June 2002, the mother made one of her rounds of complaints that the child had been sexually abused by the father. Despite the concerns in 2001 that the mother’s complaints lacked substance – so much so that the child was moved to live with her father – these 2002 complaints were still not dismissed out of hand. DHS temporarily removed the child from her father while they fully investigated the mother’s complaints. It seems that DHS sought out other experts, such as psychiatrists and doctors, and that the child was examined, interviews were conducted, and the mother’s allegations were given serious consideration, albeit the conclusion was not as she sought, and the child was returned to her father.
Unfortunately, despite the outcome of investigations, the child’s own comments to others, and the repeated positive assessments of the child’s relationship with her father, there is no sign that the mother has mellowed in her long-held belief of sexual abuse. That was evident throughout the hearing. At one point, when being asked questions about child support and making a payment beyond the minimum requirement, the mother volunteered:
I choose not to pay money to a child molester to molest my child.
When asked about what appeared to be a past threat to shoot the father, the mother was fairly casual, indicating it was reasonable to talk of shooting – “or hanging” – a perpetrator of sexual abuse. Her vague evidence about her access to firearms (she has owned a .22 rifle in the past), and whether or not she currently holds a valid firearm licence, did nothing to add confidence about her state of mind. It gave me an insight into how discomforting and unsettling her behaviour has been, and continues to be, for the child and the father.
When asked how she would comply with future court orders, if she had to deliver the child to the father, the mother said:
I would leave her at the police station and make them responsible. I can’t drive her back there. I can’t do it to her.
During 2008, out of the blue, the mother again reported sexual abuse of the child to the authorities. She conceded that on 7 August 2008 she sent an email to a police help-line for children. It was written at 2.01am. It is not only troubling that she raised the issue again, but worse still, she suggested the complaint was written by the child herself. The email reveals the mother’s chaotic thought processes. It needs to be set out in full, to impart the flavour:
Subject: SOS SOS SOS SOS SOS
HE TOUCHES ME THERE ITS DANCING DAY I WEAR NO UNDERWEAR PHOTOS ARE TAKEN IM NOT ALLOWED TO LOOK AT THEM THE OTHERS ARNT AS BAD AS HIM. MY MUM GAVE ME A PHONE HE TOOK IT AWAY FROM ME I HAVE TOLD CHILD PROTECTION EVERYTIME I DO IM NOT ALLOWED TO SEE MY MUM HE MAKES ME LIE. AND I WILLNOT WRITE MY LAST NAME ON SCHOOL BOOKS MY TEACHER SAID. SHE KNOWS WHAT HER PASSPORT SAYS BUT THE PEDOFHILE SAYS SHE IS SOMEBODY ELSE I GO TO [M] PRIMARY SCHOOL AND ARE IN GRADE 6 NOW ITOLD MY MUM WHEN I WAS 3 SHE DID NOTHING TO HELP SHE GOT A SOLICITOR ON MY 4^TH BIRTHDAY 26.3.97 I TOLD MY OMA ABOUT DANCING DAY AND THEN I TOLD MY MUM ABOUT THE OTHERS WHICH WEREN’T AS BAD AS HIM WHITE STUFF GOES IN MY MOUTH ETC REFER TO THE DEPARTMENTAL OF CULTIVATE THE PEDOFILES BECAUSE HE IS ALLOWED TO DO AND IM NOT ALLOWED TO TELL. BECAUSE MY MUM SAID I NEED TO TELL AND THEY ARE TO BUSY TO HELP ME OR NOT EVEN. MR [R] 6R [M] PRIMARY SCHOOL. MY MUM SAID DONT YOU WORRY ABOUT THAT I WILL TAKE CARE OF IT. WHY AM I STILL WITH THE PEDOPHILE WHY AM I STILL WITH THE PAEDOPHILE. Y AM I STILL WITH THE
PEDOFILE.YYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYY
The upshot of the email was that the child and the father were both interviewed by police. That means that once again the child was hauled before authorities to be questioned. Again she denied any abuse. She also denied writing the email. It could only be traumatic for the child, and for her father, for the old wounds to be opened, and for there to be yet another interview.
The police questioned the mother about the email, it seems with a view to a possible charge of making a false report. Although she has now received a letter from Victoria Police saying that at this stage there is insufficient evidence to charge her, to be cautious, I granted her a certificate under s 128(7) of the Evidence Act (Cth) in respect to her evidence on the topic.
Since the 2004 orders, there have been several other relevant incidents that highlight the dangers for the child in seeing her mother. The most serious was the incident that occurred in September 2005 that brought Ms Z’s supervision of contact to an end after only five sessions. Although the mother disagreed with Ms Z’s account, of the two witnesses I found Ms Z the more reliable and objective and I accept her account which was reported as follows:
On September 17, mother was e [sic] few minutes late and appeared under the influence of something, her eyes were extremely bright and she was quite aggressive. Asking where [the child] was. When I told her that she was in the toilet mother went to get her. I followed and before mother could get into toilet I called out to [the child] that her mother was here.
When [the child] came out the mother grabbed her head and hair twisting and shaking her head. [The child] became quite frightened and I told mother to stop. We then went to the visitors room and when [the child] went to give her mother a cuddle, the mother sat up straight, yelling “don’t touch me”
[The child] cowered and sat back on a chair. Then suddenly the mother punched [the child] in the chest with both hands and twisted the skin. [The child] cried out. The mother than [sic] grabbed and punched her low in the belly screaming “You let your Dad do it so I can too, stop telling lies and tell the truth about your father” She then grabbed [the child’s] head twisting and shaking it pulling her hair in the process.
I told the mother this is enough I am stopping this visit and told [the child] to take her jacket that we were going.
Ms Z described how at first the mother would not let go of the child. Finally she did, and Ms Z quickly removed her. The child was crying and very upset, saying it was the worst visit and she was scared and did not want to see her mother again. It took time to calm the child down and when she saw her father she burst out crying again. Ms Z described the attack as “vicious”, the child as “petrified”, and that the mother was “oblivious” to the child’s distress.
Ms Z notified the police. She said that she received a phone call from the mother that night in which she was speaking “gibberish”, with “long pauses and unintelligible rambling on about her little girl but most was incomprehensible.”
Ms Z described the mother’s “obsession” with the fact that the father was a paedophile having “become much stronger” over the last few months of the supervised time, and that she had said she would not take any notice of court orders, saying “they are crap anyway.” Ms Z expressed the strong view that the child was in both physical and emotional danger in having contact with her mother.
Although the violent incident was the one that finally made contact untenable in Ms Z’s view, she had been concerned already in earlier visits that the mother spoke inappropriately in front of the child, put unreasonable pressure on her about the surname she used, and tried to give her a mobile telephone, so she could speak to her and circumvent court orders. The mother said the mobile was “only a gift”: something every eight-year-old girl was receiving that year. I do not accept that as a forthright answer. In the context of all the evidence, and the mother’s perceived need to extend a “life-line” to the child to save her from her father, Ms Z’s concern about the mobile, as well as the mother’s conduct in sessions, was well-founded.
Frighteningly for the child, after contact was stopped, the mother went to the father’s home unannounced on Halloween 2005, and tried to take the child. The father claimed that the mother slapped him and he took out an Intervention Order against her. The mother denied his account. It is however supported to some extent by the child’s account to Ms S. Again, the mother showed no insight into the trauma for the child.
The mother was given ample opportunity to say something positive about the father’s parenting. Although it is not unusual in court to see one parent find it difficult to make positive concessions about the other, the mother was at the extreme end of the spectrum. She seemed non-plussed by the questions put by counsel for the ICL in this regard. At one point when she was asked directly:
Can you say something positive about him?
she answered simply:
I’m not aware of anything positive about him.
The mother’s genuine lack of capacity to acknowledge anything positive about the father is out of touch with the reality that the child is looked after by a caring and loving father who has offered her security and stability and a setting in which she appears to be flourishing. I base that conclusion on the child’s good school reports, her father’s consistent (and welcome) involvement in her schooling, the apparent satisfaction of DHS at various times that the child be placed with or continue to live with him, the child’s presentation to Ms S in interview, Ms S’s observations over an extended period of the child and her father together and their easy relationship, and Ms S’s conclusion from her observations and the information gathered, that the father meets the child’s intellectual and emotional needs to the best of his ability.
I am particularly impressed that in her father’s care, the child has been emotionally free to exhibit fondness towards her mother. She has photos of her, and expressed readily that she sometimes misses her mother, and that her father never says nasty things about her.

(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;

I am satisfied that the father has encouraged the child’s relationship with her mother, to an appropriate extent. That is, he has made genuine efforts for the child’s relationship with the mother to be fostered. In 2004, despite all the heartache of repeated unfounded allegations against him, he still consented to a regime for the child to see her mother. It was only after the events of 2004 to 2005, that he finally concluded that the child was better off not seeing her mother. That was a reasonable and proper conclusion. Nevertheless, she has remained free in his care to speak openly of her mother and of her feelings, and recently she sent a Christmas card to her mother.
I cannot have the same confidence that the mother will be able to encourage the child’s relationship with her father. The mother sees him as a monster. She does not hide that.
The mother was critical of the father for keeping the child from her maternal family. That criticism is unfair. Despite all the traumas to the father, as well as to the child, as a result of the mother’s unswerving view about sexual abuse, and despite the maternal grandmother’s apparent support of the mother’s version (although she was not a witness before me), the father has kept the child in touch with her maternal family. He has not done so as freely and as fulsomely as the mother would like. That is understandable. He explained that if he simply left the child with the family, without supervision, he feared she would be brought into contact with her mother. In the circumstances, it is to his credit that he has at least arranged meetings at shopping centres, and occasional meals or exchanges of presents.

(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;

That the child remain safe and settled is an important consideration, given the upheavals in her young life. I am satisfied that her well-being requires such upheavals to stop. They include the direct and indirect rigours of on-going litigation.

(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;

This in itself is not an issue in this case.

(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;

Ms S emphasised that the child’s age, and approaching adolescence, puts her in a vulnerable zone in emotional terms. She is just starting high school. She has expressed clear and mature views and wishes. In Ms S’s opinion it is important for the child to see that her views have been heard.
In general terms, there is no question that for the child, as a young girl growing into womanhood, a relationship with her mother would be very important. I need to weigh that against the other considerations in this case. And I note that in her father’s care, the child is kept in close contact with a range of female relatives including the paternal grandmother and aunt. I do not suggest that provides an adequate replacement for her mother, but the support of close females is likely to be helpful to her.

(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;

This is not a relevant consideration in this case.

(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;

I have dealt with these aspects so far as relevant above.

(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;

I have already noted that in this case the expert evidence is clear. The child needs to be free of the on-going pressures that have unfortunately consistently arisen when seeing her mother, and the on-going pressures of litigation.

CONCLUSION

The father and the ICL have asked me to make an order that the father have the sole parental responsibility in relation to the child.
I am satisfied that the presumption of equal shared parental responsibility, referred to in s 61DA(1) of the Act, does not apply in this case. There are reasonable grounds to believe that the child’s mother has engaged in abusive conduct towards her, by her repeated allegations of sexual abuse, when there has been no sound factual basis for such allegations to continue. Even if the presumption of equal shared parental responsibility were to apply, I would be satisfied that the evidence is sufficient to rebut the presumption. Given the mother’s beliefs and behaviour, her illness, her lack of capacity to accept treatment, and her lack of insight as to the child’s needs, the detail of which is discussed above, I conclude that it is not in the child’s best interests for her parents to share those responsibilities.
I also accept the submissions for the father, and the ICL, that the child should continue to live with her father. That accords with her wishes. She is happy, settled, secure and stable. It accords with the expert evidence, most particularly the Family Report written by Ms S, an experienced report writer who was involved with the family over six reports and six years.
Despite the mother’s ardent desire to be seeing her daughter, I am satisfied that at this stage it is not in the child’s best interests for that to occur. Again I refer to the child’s views, and the expert evidence that supports her in her wishes. It was apparent to experts, and apparent in evidence, that the mother still retains the firm view that the child is at serious risk with her father. I cannot be satisfied that if the child lived with her, the mother would hand the child back to her father to live with or spend time with him. And I have no confidence that she would comply with any orders, for example to prevent her discussing these aspects with the child, or to prevent her from traumatising the child with further medical and police and/or DHS investigations. Her discussions with the child and her treatment of her, even in the presence of an experienced supervisor like Ms Z, leave me with no confidence that the child can be protected in the course of any face-to-face time with her mother.
Communication by way of letters, cards and gifts should continue. As previously, communications from the mother to the child should be via the father, sent to his postal address. Unfortunately, telephone contact is likely to be riddled with the same sorts of problems that would arise face-to-face, and I do not propose permitting such contact.
The mother has been permitted to attend parent-teacher interviews in the past. I have heard evidence of difficulties. I did not hear direct evidence from the school, but the mother conceded what she called a “mix-up” early in 2008, when she arrived at the school during school hours rather than when scheduled for after-school. It is a difficult balancing act. There is no doubt that her capacity to speak directly with the child’s teachers would keep her well-informed about her daughter’s progress. But the child’s interests are paramount. I agree with the father that it is important for the child to be able to make a fresh start at high school, without the concern that her mother might turn up, or create a scene by spreading her views that the father is a paedophile and that the child has been abused by him. That is something that the mother has done openly in various other contexts, and could only cause the child embarrassment and grief. Unfortunately, there is every reason to believe it would be highly likely to occur again.
It is important that the mother receives copies of school reports. There is a suggestion that has not happened in the way that it should have. I am not sure if blame lies with the father or with the school, but I will make it clear that it is the father’s responsibility to ensure that reports are forwarded to the mother. That is important. However I agree that the names of teachers and of the school and any other identification should be excluded, and the mother should be restrained from approaching the child or the child’s school in any way. The child, and her father as primary caregiver, need that security and assurance.
That brings me to the proposal for an order that the mother be restrained from bringing proceedings without the leave of the Court for three years. I am satisfied that would promote the child’s best interests. It gives her the respite that the experts say that she needs. That accords with commonsense, after all she has endured. It gives the child three years to mature before the issue might arise again. It leaves open the possibility of contact then, should it be in her interests at that time. In the meantime, it does not preclude the mother from applying for leave in changed circumstances, if for example she seeks help, has treatment, and becomes well enough to appropriately participate in parenting the child. And, I am satisfied that if the mother is well, or the child expresses a strong desire to see her mother, her father will facilitate that in a safe setting.
The mother was adamant that the child needs on-going counselling. I am satisfied with Ms S’s recommendation that it should only occur if the child seeks or needs it. Ms S expressed no professional opinion to the effect that the child needs it. She said that at present the child’s interests are best served by just being a child and enjoying her childhood, free from such interviews or discussions unless her health demands it. Her father is well placed to make that call. He clearly meets her needs for care and support, education, extra-curricula and peer group activity. Although the mother has a more cynical view, I accept that he will translate his desire to support the child into counselling if necessary for her.
That leaves the issue of the child’s surname. Her birth certificate shows Heinrich. Over the last eight years with her father, at least at school, and possibly otherwise, she has used the name Daniels. The ICL and the father seek an order that the father be permitted to formally change the name on her birth certificate to Daniels.
The surname has been a nagging issue. It was at the base of the mother’s violent attack on the child in September 2005. The father and the ICL argue that it is in the child’s interests for the question to be concluded clearly once and for all. On balance I conclude that the child’s interests are probably best served by maintaining the status quo. She uses the name Daniels at school. She suffers no embarrassment or difficulty having to explain a different name from her father’s. At the same time, I want to ensure that bridges that will hopefully be re-built between mother and daughter in future will not be, in the meantime, further weakened or damaged by severing the link of identity with her mother that exists via her birth certificate. In addition, I know the overall decision in this case will be sadly and keenly felt by the mother. She need not suffer the further blow of having her name removed. It is likely she would feel crushed and discouraged by that. It is important for the child’s well-being that, to the contrary, her mother be encouraged, in the hope that she may seek help and comply with treatment, so that she might participate fully again in the child’s life.

THE ORDERS

The orders I propose are as follows:
1.That …born … February 1997 (“the child”) shall live with her father.
2.That the father shall have sole parental responsibility in respect to the child.
3.That the mother shall be able to communicate with the child by cards and letters and be able to forward gifts to her by mail to the father’s postal address.
4.That the father shall forward to the mother copies of the child’s school reports, and be permitted to modify the same to exclude the names of teachers and the identification of the school.
5.That the mother shall be and is hereby restrained from:
(a) Approaching the child or knowingly being within a 500 metre radius of her; and
(b) Attending the child’s school or contacting any members of the staff of her school.
6.That subject to rights of appeal in this case, the mother shall be restrained for a period of three years from the date of these orders from issuing any further applications in respect to spending time with or communicating with the child without first obtaining the leave of the Court.
7.That pursuant to section 128(7) of the Evidence Act (Cth), a certificate shall issue to the mother in relation to the evidence transcribed in this case on 21 January 2009 from pages 1 to 11.
8.That pursuant to s 65DA and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
9.That all existing applications shall be otherwise dismissed and removed from the list of cases awaiting finalisation.
10.That the appointment of the ICL shall be discharged.
11.That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate:

Date: 5 February 2009

[2009] FamCA 103

5 February 2009

Key Legal Topics

Areas of Law

Family Law

Evidence

Statutory Interpretation

Legal Concepts

Injunction

Jurisdiction

Procedural Fairness

Remedies

Standing

Statutory Construction