HUGHES & KELLY

[2019] FamCA 380

FAMILY COURT OF AUSTRALIA

HUGHES & KELLY [2019] FamCA 380

FAMILY LAW – CHILDREN – With whom a child lives – where the child will commence living with the father forthwith – where there is a change of residence of the child – where the child will initially spend no time with the mother before progressing to supervised time and then time as agreed between the parties –  where the option for unsupervised time and communication has been left open rather than an order for no contact being made – where the parties have been involved in prior proceedings in relation to the child – where the parties agreed on final consent orders in the Family Court of Australia – where the father recommenced proceedings – where the parties were never in a committed relationship – where the mother alleges the child was conceived as a result of a sexual assault – where the father refutes the mother’s beliefs and assertions around conception of the child –  where there is no corroborative evidence to support the mother’s allegation – where a finding cannot be made that the father sexually assaulted the mother – where the mother denigrates and calls the father a rapist in front of the child – where the mother received a notice of decision from the Commissioner of Victim’s Rights as well as some monetary compensation – where the mother believes the decision gives her authority and control over the father and is evidence that she was sexually assaulted – where the mother has consistently threatened the father with criminal proceedings –where the mother has not made a statement to police – where the father has never been charged and the allegations have never been investigated – where the mother has made allegations that the paternal grandfather has sexually assaulted the child – where this allegation has not been substantiated and the paternal grandfather does not pose an unacceptable risk of harm – where there is a risk of psychological harm and to a lesser extent neglect if the child remains in the care of the mother – where the mother was assaulted in the presence of the child resulting in the child entering temporary care with the Department of Family and Community Services – where the mother has an impaired capacity to meet the psychological needs of the child to the extent that she tried to protect the child from risks that are not well-established – where the mother underestimates her capacity to meet the needs of the child when she is impaired by alcohol and/or marijuana – where the child will be in a safer environment emotionally and physically in the care of the father – where the paternal family will act protectively of the child – where orders are made in the best interests of the child.

FAMILY LAW – CHILDREN – Parental responsibility – where the father will have sole parental responsibility – where the father will notify the mother in writing of the decisions taken for the long term welfare of the child – where there is no prospect of equal shared parental responsibility – where the mother regards the father as an intruder in her life – where the father has lost all trust and confidence in the mother and believes she is unstable and a safety risk –  the parent with whom the child lives should also be the decision maker.

Family Law Act 1975 (Cth)
Australian Passports Act 2005 (Cth)
Victims Rights and Support Act 2013 (NSW)

APPLICANT: Mr Hughes

RESPONDENT: Ms Kelly

INDEPENDENT CHILDREN’S LAWYER: Krstina Wooi Lawyer

FILE NUMBER: NCC 1801 of 2015

DATE DELIVERED: 13 June 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 13-14 & 16-17 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Weightman

SOLICITOR FOR THE APPLICANT: LMC Lawyers

COUNSEL FOR THE RESPONDENT: Mr Apelbaum

SOLICITOR FOR THE RESPONDENT: Medcalf Grant Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Mooney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Krstina Wooi Lawyer

Orders

1. That all former parenting orders relating to the child B (“the child”) born … 2012 are discharged.

Parental Responsibility

1. That the father shall have sole parental responsibility in respect of all major long term issues for the child.

2. That each party shall keep the other advised of current address (residential and electronic) and telephone numbers.

3. That the father shall advise the mother of decisions taken about the long term welfare of the child including enrolment at school, specialist medical treatment, religious instruction if any and overseas travel NOTING that compliance with this order by writing to the mother at an address provided pursuant to Order 3 will be sufficient.

4. This Order is sufficient authority to permit the school which the child attends to provide the mother with copies of all school reports and applications for school photographs at her own expense, if any.

Residence

1. That the child shall live with the father commencing forthwith.

Correspondence

1. The mother shall be at liberty to post to the child at the address provided in Order 3 gifts cards and letters addressed to the child and the father shall ensure that the child receives such cards gifts and letters.

Time and Communication

1. That the child shall spend time and communicate with the mother as follows:

   8.1For a period of twelve weeks from the date of these orders no time and no communication;

Communication

8.2Thereafter for a period of six months the mother may speak to the child on each Wednesday at a time between 6.00 pm to 6.30 pm with the mother to initiate the call:

8.2.1The father may have the telephone on loud speaker if he considers it necessary and may terminate the call if the welfare of the child requires it;

Time

8.3Following the period of no time in Order 8.1 the child shall spend time for a period of six months supervised by J Organisation, or in a contact centre, on each alternate Sunday for a period of not less than two hours; NOTING that the mother may bring Y to the visit but no other person;

8.4Thereafter at such other and or additional times as agreed between the parties.

1. That the parties be restrained from changing the child’s name from B.

2. That pursuant to section 11 of the Australian Passports Act 2005 (Cth) the minister issue an Australian passport in respect of the child and may do so without the necessity of obtaining the consent of the mother for that purpose.

3. That the Registrar of this Court will provide a copy of these Orders and Reasons for Judgment to:

   11.1The Commissioner for Victims Rights;

   11.2The Secretary of Department of Family and Community Services NSW;

4. That the mother may provide the following documents to her treating psychologist/psychiatrist and to no other person:

   a)Family Report dated 25 July 2018;

   b)Orders and Reasons for Judgment dated 13 June 2019.

5. That the father may provide a copy of these orders to the principal of the school in which the child is enrolled.

6. The parties are each restrained from the following conduct:

   a)Discussing these proceedings with the child;

   b)Showing the child the Decision (dated 8 November 2016) of the Victims Rights Commissioner and any related document;

   c)Denigrating the other party or member of the extended family of that party to or in the presence of the child.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC1801 of 2015

Mr Hughes

Applicant

And

Ms Kelly

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for parenting orders in respect of one child, a boy named B (“the child”) aged six, and about to turn seven.

2. The child has lived with the mother since his birth.

3. The parties have never been in a committed relationship to any extent. The mother alleges that the child was conceived when she was sexually assaulted by the father. The father alleges that the child was conceived during one of two episodes of consensual unprotected sex with the mother.

4. The parties have previously been involved in litigation in relation to the child, with final orders being made in this Court, by consent, on 19 February 2016.

The Parties

The Applicant Father - Mr Hughes

1. The father is aged 41 years old. The father is currently self-employed running a business with a partner, providing services in the Newcastle area. The father’s work hours are self-determined.

2. The father re-partnered four years ago. His partner Ms L is aged 45, and she and her daughter TT, aged 17 (about to turn 18) live with the father in Suburb VV, a suburb of Newcastle.

The Respondent Mother - Ms Kelly

1. The mother is aged 39 years old.

2. The mother lives with the subject child and her younger child from a subsequent relationship, Y, aged five, in K Town in the M Region. Y has no relationship with her father.

3. The mother has had several short-lived relationships but apparently does not have a current partner. She is self-employed.

History of Relevant Events

The parties meeting and conception of a child

1. The mother came to the attention of the father in 2011 as someone who regularly came into a hotel in Sydney in which he worked. The mother usually attended in the afternoon, with friends, for a few drinks.

2. On the first of two occasions in October 2011 the mother invited the father home after he finished work and he accepted. Later they walked 800 metres from the shared house of the mother to the father’s house and had sexual intercourse. The following morning the father drove the mother home. On the second occasion two weeks later there was a similar event but the parties went directly from the hotel to the home of the father for the night.

3. The mother does not challenge the factual account. She simply states “In October 2011 I was sexually assaulted by Mr Hughes”.

4. The mother on her own evidence had recently broken up with a long term partner with whom she had begun trying for a child.

5. In November 2011 the mother learned she was pregnant. She assumed the father of the child was her recent partner. Her doctor was unable to pinpoint the exact date of conception. The mother states that at this time “…she was unsure as to whether [Mr Hughes] and I had had sexual intercourse. I believed I had blocked the memory out due to PTSD or the like.”[1]  

   [1] Affidavit of Ms Kelly filed 1/12/2017 par 17

6. The father alleges that the mother informed him that she was nine weeks pregnant and that the baby was his. The father states he then told the mother that he would support her and they had dinner with the paternal grandparents in Sydney.[2]

   [2] Affidavit of Mr Hughes filed 8/03/2019 par 12-13

7. The mother states now that she decided then that she would keep the baby, even though she states that she did not realise that at this point in time it would result in her having “contact with the rapist on such an intrusive and ongoing basis.”[3]

   [3] Affidavit of Ms Kelly filed 1/12/2017 par 19

8. I conclude that the mother in retrospect, perhaps through disappointment or for another reason, came to the conclusion that the father was a rapist who had taken advantage of her. It is likely that that idea appealed to the mother more than having conceived a child with a man she did not know well.

9. The idea that she had been raped by the father has moved in and out of significance for the mother over the following eight years.

10. One part of the explanation for that is the pursuit by the mother for compensation for the alleged sexual assault which culminated in a payment to her in 2016 of $10,000. The history of that outcome follows.

11. On 3 July 2012 the mother self-referred to hospital in respect of depression and a family history of bipolar disorder.

12. In July 2012 the subject child was born.

13. The father flew to Western Australia to visit the child when he was three weeks old with the paternal grandparents flying over a week later.

14. In August 2012 the parents undertook a paternity test which confirmed that the applicant father was the biological father of the child.

15. The mother returned to New South Wales with the child and they lived with the father for four weeks whilst the mother obtained independent accommodation. Two months after the mother moved out she obtained a permanent rental for herself. The father states that during this time he was seeing the child five times a week.[4]

    [4] Affidavit of Mr Hughes filed 1/05/2019 par 26

16. The mother denies this and states that she did not return to Sydney until October 2012, where she stayed with the father and paternal grandparents for a few weeks.

17. Whichever version is correct it is clear that the father and paternal grandparents were engaged with the child and supportive of the mother, who did not reject their help.

18. From January to April 2013 the father states the child was spending time with him and the paternal family on an informal basis at least once each week.

19. In February 2013 the mother commenced a casual relationship with a man nick-named ‘[Mr S]’ and fell pregnant to him with her second child “Y”.

20. From April 2013 onwards the father commenced spending overnight time with the subject child.

21. In the months leading up to the birth of the mother’s second child, the child spent more and more time with the father and paternal family.[5] The father states this was one to two nights per week but within a couple of months the father was having him three nights per week, often on short notice.

    [5] Family Report dated 25/07/2018 par 9

22. The father alleges on one occasion when the mother called him and the father said he was at work and could not help, the mother responded “you’re going to have to help.’ The father called his sister and mother. His sister drove one hour and 20 minutes from SS Town to collect the child, and the child ended up spending approximately five days with the paternal grandparents.

23. In late 2013 the mother’s second child Y was born.

24. The father states that following the birth of Y the mother enrolled the subject child in private family day-care owned by a friend of the mother’s. The day-care was not registered with the Government. The father states he researched different day-care options and enrolled the child in a new day-care around the corner from his home that was qualified and insured.

25. In mid-2014 the mother commenced a relationship with Mr P, who lived in the M Region.

26. The father tried to talk to the mother about formalising parenting arrangements but the mother did not want to discuss it.

27. On 4 September 2014, the mother reported to police arguments with the father via text message. Police advised that it is not a police matter and that she needed to obtain Family Law orders. She was referred to a Sexual Assault Clinic and Victims Services in respect of her allegation that she had been sexually assaulted by the father in 2011.

28. In September 2014 the mother states that she received a telephone call from Victims Services who arranged for her to have sexual assault counselling.[6]

    [6] Affidavit of Ms Kelly filed 1/12/2017 par 53

29. On the 17 September 2014 the mother states that she observed the father to post some naked photographs of the child on his Facebook profile picture and that he had no privacy settings. This concerned the mother because she alleges that the father had told her before that he was friends with convicted paedophiles on Facebook.[7]

    [7] Affidavit of Ms Kelly filed 1/12/2017 par 56

30. On 18 September 2014 there is a consultation between the mother and Ms O at Q Hospital. The mother reported a story that Y’s father [Mr S] was heavily assaulted when the mother was pregnant with Y.

31. During her cross-examination the mother asserted that the father was responsible for that assault on “[Mr S].” There is no evidence before me which supports that belief.

32. In November 2014 the mother met Mr T for the first time over the internet.[8]

    [8] Affidavit of Ms Kelly filed 1/12/2017 par 58

33. In December 2014 the mother states that she told the father she was planning on moving to the M Region in order to provide a better life for the children.[9] The father states that the mother moved to the M Region to live with Mr P because they were in a romantic relationship. The mother disputes this and states they were just housemates

    [9] Affidavit of Ms Kelly filed 1/12/2017 par 59

34. Whatever was the case, the mother and children did move to the M Region in late January 2015. She did not inform the father of her new address.

35. On 25 February 2015 the mother states she attended her first session of sexual assault counselling, where she explained that she did not consent to having sexual intercourse with the father and explained his controlling behaviour over the past few years.

36. The mother states that on the advice of the Department of Family and Community Services (“FACS”) and her psychologist she ceased the father’s time with the child. The mother stated that she “felt empowered and that I could stop the time between B and [Mr Hughes], which I felt had not been appropriate for some time.” The mother’s aim at this point was for no contact for the child with the father.[10]

    [10] Affidavit of Ms Kelly filed 1/12/2017 pars 64-65

37. On 26 February 2015 the father dropped the child off at the day-care, where the mother informed him that she needed to travel to NF Town to visit her sick cousin. The mother has stated in her filed material that she needed a ‘plan’ in order to cease the father’s time and told the father and day-care staff that there had been a family emergency.[11]

    [11] Affidavit of Ms Kelly filed 1/12/2017 pars 67-69

38. On 4 March 2015 the father states that he was due to spend time with the child but the mother was not returning his telephone calls. The father states he knew the mother had moved homes but did not have her new address, he sent a text but did not receive a response. The mother states on this day she saw her sexual assault counsellor again, and she was advised to go to the police and obtain an Apprehended Domestic Violence Order (“ADVO”) for the protection of B and herself, saying that she was told by the counsellor the father was a “predator preying on the weak”.[12]

    [12] Affidavit of Ms Kelly filed 1/12/2017 par 70

39. The father alleges, and the mother agrees, that on 5 March 2015 she texted the father saying “I’ve had enough of your threats” and “The child needs time to settle into his own life.” [13] The mother told the father not to contact them for one month.[14] The father states he then spoke with the maternal grandmother who informed him that the mother had cut ties with her.[15]

    [13] Affidavit of Ms Kelly filed 1/12/2017 par 71

    [14] Affidavit of Ms Kelly filed 1/12/2017 par 70

    [15] Affidavit of Mr Hughes filed 1/05/2019 par 39

40. On the 16 March 2015 the father states he tried to contact the mother again but received no response.

41. On 19 March 2015 the mother apparently attended H Town Police Station to apply for an ADVO against the father. When a detective asked the mother whether she wanted to prosecute the father for rape the mother replied that in the present moment she just wished for an ADVO, and that maybe later she might want to press charges but needed to attend more counselling first.

42. The police refused to grant the ADVO because the mother informed the police that she was not physically scared of the father. The mother states she only told the police that because, through her counselling, she had been taught, that to say that (she was scared of the father) would give the father power over her.[16]

    [16] Affidavit of Ms Kelly filed 1/12/2017 par 72

1. The mother also stated that the police told her that an ADVO was a bad idea because the mother would have to provide an address to the father so that he could not come near her, and that it would be better if the mother stayed away from him and hoped that he does not find them.

2. The police told her that she could apply for an ADVO when circumstances changed.[17]

   [17] Affidavit of Ms Kelly filed 1/12/2017 par 75

3. This attendance at the police station exemplifies the elusive nature of the mother’s thinking.

4. In March 2015 the mother commenced counselling with D Sexual Assualt Clinic Sexual Assault Clinic and received twelve sessions.

5. In April 2015 the mother stated that Mr T contacted her wanting to know where she lived, the mother stated she disclosed to him that she lived in Suburb NG in the M Region.

6. In April 2015 the father commenced employment in NS Town and relocated to that area.

7. On the 4 April 2015 the father tried to contact the mother again and received no response. The father realised the mother had blocked his number.

8. In May 2015 the father commenced a relationship with Ms L.

9. In May 2015 the father found out where the mother was living in the M Region and travelled to see her. The mother was reversing out of her driveway when he arrived. She drove back and remained in her car. The mother did not invite him in. She told him that he needed to leave and that “the child has a new life now.”[18] The father left because he said he did not want to expose the children to the conflict. The father then engaged with a lawyer to attempt to spend time with the child.

   [18] Affidavit of Mr Hughes filed 1/05/2019 pars 44-45

10. The mother’s recollection of that event is that the father turned up at the house and jumped under the garage door. She said she was extremely frightened as the father was not supposed to know where they lived. She said the father left after she told him to get out. The mother states she then went outside the house to talk to the father about how it was inappropriate he turned up and that he should have just contacted her, she then states she said to him “[Mr Hughes] do you not get it I don’t even remember having sex with you and I’m having counselling, you need to back off.”[19] The mother states she attempted to obtain an ADVO against the father in relation to the incident but the police refused to grant one. The mother states she then lost her job.

    [19] Affidavit of Ms Kelly filed 1/12/2017 pars 78 & 80

11. On 8 May 2015 the father was issued a s 60I certificate by Relationships Australia after the mother refused to participate in mediation.

Court proceedings commence - Application to the Federal Circuit Court

1. On 7 July 2015 the father commenced proceedings in the Federal Circuit Court (“FCC”) seeking orders for equal shared parental responsibility, for the child to live with the mother and spend defined time with the father.

2. It is self-evident that at that time the father was confident that the mother was able to provide adequate care for the child.

3. On 21 August 2015 the mother completed 10 sessions with D Sexual Assualt Clinic Sexual Assault Service.

4. The mother filed a Response seeking orders for equal shared parental responsibility, that the child live with her and spend no time with the father.

Transfer to the Family Court of Australia

1. On 26 August 2015 the proceedings were transferred from the FCC to this Court.

2. In August 2015 the mother ceased counselling with Ms O.[20]

   [20] Children and Parents Issues Assessment dated 11/01/2018 par 8

Single Expert appointed

1. On 7 September 2015, orders were made appointing Dr V as a single expert to prepare a report in relation to the nature of any psychiatric condition, psychological condition, or personality disorder suffered by the mother; and the extent to which, if at all, such condition or disorder impinged upon her parenting capacity.

Application under the Victims Rights and Support Act 2015

1. On the 21 October 2015 the mother applied for a recognition payment pursuant to s 43 of the Victims Rights and Support Act 2013.[21]

   [21]Victims Rights and Support Act 2013 (NSW)

2. In November 2015 the father began spending supervised time with the child at a playground. The mother would often bring Y and the father would pay for her entry as well. The visits were not particularly beneficial as the child and Y would play in the “adults restricted” area and as such did not allow him to spend much time with the child.

3. He also stated that the mother would commence each visit politely but within five-10 minutes she would commence yelling at the father demanding money and saying things like “You’re taking me to Court and saying I’m crazy. You’re the crazy one. You are a rapist and I am protecting B.” The father alleges the mother also said that the court case was causing problems for her and Mr P.[22]

   [22] Affidavit of Mr Hughes filed 1/05/2019 par 49

4. On 25 November 2015 the mother contacted police and reported that she was sexually assaulted by the father and that she does not have any fears for her safety as the father has a physical ailment. The mother wanted the police to make a record,. The next day a letter is sent from Victims Services to the police.

Interim Orders by Consent - 11/12/2015

1. On 11 December 2015 interim consent orders were made providing for the child to spend time with the father for two hours each Tuesday, initially supervised by the mother and then either by the mother and/or either of the paternal grandparents.

2. In January 2016, the child met the father’s partner Ms L for the first time.

Final Parenting Orders by consent (“2016 orders”)

1. On 19 February 2016 final orders were by consent in this Court.

2. These orders provided for the parties to have equal shared parental responsibility, for the child to live with the mother and spend unsupervised time with the father every Monday night and for the last weekend of every month.

3. The mother states she agreed to settle the matter due to her feeling that she had no privacy in her life or in respect to her mental health records.[23]

   [23] Affidavit of Ms Kelly filed 1/12/2017 par 87

4. Whatever her motivation the decision of the mother to consent to the orders is inconsistent with any concerns being held by the mother for the safety of the child in the care of the father.

5. I am reasonably confident that if the mother had simply complied with the orders to which she consented the matter would not have come back to this Court.

Events following February 2016 Final Orders

1. From March 2016 the mother requested that the father spend time with the child outside the allocated time.

2. In April 2016 the father and Ms L commenced a de-facto relationship.

3. In May 2016 the father corresponded with the mother regarding a passport for the child. The father wanted to take him on a holiday. The mother told him that if he paid for the passport she would sign it, and she wanted to know the details about the trip. The father booked the flights and accommodation, and told the child about the holiday however the mother then refused to sign the passport application. The father states that at no point did he indicate to the mother than he was relocating overseas, which was her explanation for refusal.[24]

   [24] Affidavit of Mr Hughes filed 1/05/2019 par 54

4. In June 2016 Mr P contacted the father and informed him that his relationship with the mother was over.

5. In October 2016 the mother moved into a rental property in K Town, assisted by her friend Mr T, whom she had met online in October 2014.

Decision by Commissioner of Victims Rights

1. On 8 November 2016 the mother received a Notice of Decision from the Commissioner of Victims Rights.

2. She was awarded $10,000 “to recognise the trauma the applicant suffered as a result of the act of violence (sexual assault)”.[25]

   [25] Affidavit of Ms Kelly filed 1/12/2017 Annexure ‘A’ ‘Notice of Decision’ pages 43-44

3. The decision, the reasons and the subsequent payment of $10,000 had a powerful impact on the mother.

4. The mother has stated to this Court and to third parties that the Commissioner had decided that the mother was a victim of sexual assaults, by which she had become pregnant, and that B was a child of the sexual assaults.

5. The mother stated that she also found out that she had sustained injury as a result of the assaults.

6. The mother informed this Court that herself, B and Y were also given 72 hours of free counselling.

7. The mother stated that B was originally given his own counsellor, but she requested the same counsellor for the children and herself.[26]

   [26] Affidavit of Ms Kelly filed 1/12/2017 par 99

Allegation of sexual assault of Y by a third party

1. On 25 November 2016 the mother states that an incident occurred in relation to Y while she was spending time with her maternal cousins. The subject child was at the father’s house for the weekend. Y was at the home of her cousin, and a maternal uncle. The mother states that Y was sexually assaulted that weekend.

2. Towards the end of 2016, the father states that the mother was becoming more demanding and was starting to ask the father for money more frequently. The father states he also noticed that the mother was becoming more aggressive on the telephone and because of these concerns he began to keep a record.[27]

   [27] Affidavit of Mr Hughes filed 1/05/2019 par 59

The thong incident - January 2017

1. On the 3 January 2017 the father dropped the child off at the mother’s house. His version of events is that the mother behaved in an aggressive manner, came at him and assaulted him by hitting him over the head with his rubber thong, shouting at him words to the effect of “You’re a rapist.”[28] The children were both watching by the screen door.

   [28] Affidavit of Mr Hughes filed 1/05/2019 par 61

2. The mother acknowledges the incident generally but denied hitting the father with his thong. She also denies that the children were watching.

3. The father states he put his hands over his head to defend himself and then left, going straight to Suburb NR Police Station to report the incident. On that same day the father received a text message from the mother stating words to the effect of “Cut all contact with my mother. She supports rapists. Make sure our son is safe or your life won’t be worth living.”[29]

   [29] Affidavit of Mr Hughes filed 1/05/2019 par 62 - page 19 father’s ‘Tender Bundle’

4. The mother states the incident occurred when the father returned the child to her house and that it occurred because the father was in contact with the maternal grandmother alleging that the mother had mental health issues and was accusing him of rape.

5. The mother stated in her affidavit that she told the father about the Victims Rights Decision on this date. She went on to say “I had hoped that we could agree to treat me with respect moving forward or risk me proceeding with criminal charges and possibly sending him to prison.”[30]

   [30] Affidavit of Ms Kelly filed 1/12/2017 pars 121-122

6. It is apparent that the mother felt she now had authority and control over the father because of the decision. That is to say that if the father did not treat her the way she wished to be treated she would make a statement to police. I infer that the mother considered that, since she now had written evidence from the Commissioner of Victims Rights, conviction and incarceration would inevitably follow.

7. On 4 January 2017 the father received a telephone call from the NSW Police who informed him that they had spoken with the mother who confirmed the father’s version of events with the Police.[31]

   [31] Affidavit of Mr Hughes filed 1/05/2019 par 63

8. On 6 January 2017 the father called the police who advised him that they were not investigating any rape charges.[32]

   [32] Affidavit of Mr Hughes filed 1/05/2019 par 64-65

9. On 10 January 2017 the mother received the recognition payment of $10,000 from Victims Rights.

10. On 11 January 2017 the mother was assigned a FACS case worker. The mother’s belief was that this resulted from the father reporting that she was no longer a suitable mother.[33]

    [33] Affidavit of Ms Kelly filed 1/12/2017 pars 128-129

11. On 25 January 2017 the mother arrived home to find a calling card from FACS informing her that they wished to attend her home. The mother reports that FACS told her that they cannot divulge who reported the children being at risk. The mother states that she believes it was the father who was attempting to “bring me down.”[34]

    [34] Affidavit of Ms Kelly filed 1/12/2017 pars 135-136

12. On 26 January 2017 the mother texted the father:

    So this month you have reported me to the police and now to FACS…I think we all need to sit down together which is with the authorities. [Ms L] and [TT] (sic) need to know they’re living with a rapist.[35]

    [35] Affidavit of Mr Hughes filed 1/05/2019 par 66

13. The father states that he never contacted FACS but had contacted police in relation to the assault on 3 January 2017. The father believed around this time that the mother was on drugs because she was agitated at changeovers, fidgeting, unable to concentrate and had lost a lot of weight. The mother denied being on drugs when the father asked her.[36]  The same day the father alleges that he received another text message from the mother stating “Fuck off out of my life. You evil little man”.[37]

    [36] Affidavit of Mr Hughes filed 1/05/2019 par 67

    [37] Affidavit of Mr Hughes filed 1/05/2019 par 68 - page 27 father’s ‘Tender Bundle’

14. The mother refused to let the father spend time with the child on the weekend. The father alleges the mother texted him “Are you two sick fucks trying to get both children? Fucking creeps. I feel so sorry for the child.” [38] The mother also told the father she had been advised that until she had mediation she did not need to contact him anymore.[39] This same day the father states he is contacted by the maternal grandfather stating that they are concerned about the mother’s safety stating “We’re concerned about [Ms Kelly] and her behaviour, she seems to have gone off the rails again, she (sic) back to saying you raped her”.[40]

    [38] Affidavit of Mr Hughes filed 1/05/2019 par 68 - page 29 father’s ‘Tender Bundle’

    [39] Affidavit of Mr Hughes filed 1/05/2019 par 69

    [40] Affidavit of Mr Hughes filed 1/05/2019 par 69

15. On 29 January 2017 the father alleges that the mother called his partner and claimed that the father was raping her child [TT] in their home, and that she was letting it happen.[41]

    [41] Affidavit of Mr Hughes filed 1/05/2019 par 70

16. Since there is no suggestion in the evidence of a factual basis for the mother’s allegation about TT it appears to be the mother reacting in anger directed at the father through his partner.

17. In either January/February 2017, the mother commenced seeing psychiatrist Dr W. The mother was prescribed Dexamphetamine to treat Attention Deficit Hyperactivity Disorder (“ADHD”).

18. On 30 January 2017 the father was due to spend time with the child. The mother originally wanted to cancel the visit as the child was sick, however agreed to facilitate time when the father informed her he was already at the changeover location at the day-care centre.

Day-care incident

1. On 30 January 2017 the mother alleges that when she arrived at the day-care centre, the father’s partner commenced filming the interaction between the parties, the mother stated she found this behaviour to be extremely odd. The mother states she refused to hand over the child because the father had not complied with court orders and provided the mother with details of his residential address. The mother states she tried to provide the father’s partner with a copy of the notice of decision so that “she could be aware that she was in fact living with someone who was potentially very dangerous” but she declined.[42]

   [42] Affidavit of Ms Kelly filed 1/12/2017 pars 137-145

2. The father denies the mother’s version of events. His version was that the mother arrived late and was confrontational. The father states the mother kept demanding his partner’s contact details.

3. On 1 February 2017 the mother contacts police and advises that she wishes to commence proceedings against the father regarding the sexual assaults in 2011. Police declined to proceed. The mother refused to provide a statement.

Mother assaulted by Mr T - 03/02/2017

1. On 3 February 2017 the mother attended a “party” at a friend’s home in Sydney. She took a camping trailer for the children.[43] In her oral evidence the mother clarified that the party was a televised fight between two international boxers.

   [43] Affidavit of Ms Kelly filed 1/12/2017 pars 147-158

2. The mother said she consumed a bottle of wine during the night. The mother became annoyed that Mr T was trying to obtain any spare alcohol and was being noisy while she was trying to get the children to sleep. At midnight the mother left the tent and tried to ask the few people still awake to keep the noise down.

3. There were, according to the mother, five children including her own two children at this event and otherwise adults drinking steadily and focused on the fight. It was never going to be an enjoyable event for the children and could be viewed as inherently risky for them. In retrospect, the mother did not think so.

4. The mother states that Mr T dragged her away from view of the adults, but still in sight of the children, and pushed her onto the ground. The mother says she got up onto all fours in an attempt to get up, and as she looked at him he belted her over the head with a kick start off his motorbike, splitting her head and then tackling her to the ground in an attempt to stop her leaving, further assaulting her on the ground. The mother states she played dead on the ground for a few minutes, believing that he was going to kill her.

5. The mother stated she heard the children screaming and crying for her witnessing the assault through the gauze of the camper. She managed to escape his grip.

6. The police were then called. A neighbour collected the children and took them inside. The mother was taken to hospital via an ambulance. Mr T was arrested at the scene. The mother states that the incident resulted in a provisional ADVO being taken out for her protection. Mr T was charged with Grievous Bodily Harm (“GBH”) and an AVO was pursued.

7. The mother states that the police spoke to her about the children’s father coming to collect them, but the mother told the police that both children were not to have contact with either father.[44] If this is true and it probably is, the mother was focused on herself and not the needs of the children at that point.

   [44] Affidavit of Ms Kelly filed 1/12/2017 par 158

8. The mother was taken by an ambulance to hospital with injuries and was described by paramedics as extremely intoxicated.

9. This incident led to the two children being placed in the care of FACS for five days.

10. On 4 February 2017 the mother states that she was discharged from hospital at 5.30 am and caught a taxi to Suburb Z Police Station and was told the children could not be returned to her as they were still in the care of FACS. The mother was told to attend the FACS office on Monday morning.[45]

    [45] Affidavit of Ms Kelly filed 1/12/2017 pars 159-161

11. It is likely that the mother did not have a clear memory of the events of the weekend. Her oral evidence suggested that she expected that the children would still be at the police station.

12. Following on from this incident FACS commenced active involvement with the mother following a number of reports that the children were at risk of significant harm. They provided support to the mother over the next 15 months.[46]

    [46] Family Report dated 25/07/2018 par 16

13. On 6 February 2017 the father was due to spend time with the child. At 2.10 pm that day he received a text message from the mother informing him that she had “had a bad accident on the weekend” and that she was out of hospital and stable but she could not make the child available until 5.00 pm. The father states the mother said to him words to the effect of “FACS are aware that I am unable to meet the arrangement today”.[47] The father stated that at that point in time he did not find the FACS reference strange because the mother would regularly make flippant comments about contacting FACS.[48]

    [47] Affidavit of Mr Hughes filed 1/05/2019 par 74 - page 29 Father’s ‘Tender Bundle’

    [48] Affidavit of Mr Hughes filed 1/05/2019 par 74

1. The mother stated that the father replied with ‘okay’ to her text. The mother described herself as upset that the father did not ask about the wellbeing of the child.

2. Significantly the mother went on to state that (in that moment) she “strongly believed that [Mr Hughes] [the father] had set  [Mr T] up.”[49]

   [49] Affidavit of Ms Kelly filed 1/12/2017 par 174

3. This was the mother asserting that the father was responsible for causing Mr T to assault her. There is no evidence at all of such a plan or any criminal connection between the father and Mr T. Nor is there any evidence that the father knew of the mother’s plans on that occasion.

4. For that to be true, considering the matter as a theoretical possibility, the father would have to be callously indifferent to the welfare of his child to arrange for the mother’s companion to randomly assault her, with the high probability that the child would be in the vicinity.

5. The evidence supports a finding that the father is engaged as a parent, loving and protective.

6. I conclude that the mother makes connections between unrelated events arising from her own thoughts and fears and this assertion is one example of her doing so.

7. On 6 February 2017 the mother went to FACS to beg for the children to be returned to her. The mother stated she informed FACS that she opposed both children going into the care of their fathers.

8. While she was in H Town the mother attended the police station to discuss reporting the incident that had occurred on 30 January 2017 [incident between father and mother at day-care] and also past sexual assault by the father.

9. The children were returned to the mother that afternoon.

10. On 13 February 2017 the father collected the child from day-care and the mother was present using either a walking stick or a crutch.[50] On this date the mother declined to make a statement to the police regarding the alleged sexual assaults perpetrated by the father.

    [50] Affidavit of Mr Hughes filed 1/05/2019 par 75

11. On 21 February 2017 the mother attended the father’s home to collect the child. She wanted to go into the father’s home and he allowed her to do so.

12. The mother considered that the father was “acting suspicious” when he would not let her go down to TT’s room. The mother alleges that the child has told her that the father sleeps in TT’s room sometimes.[51] The father said the mother wished to have a tour of the house and wanted to go into TT’s room, but he thought it was not appropriate as she was in there at the time.[52]

    [51] Affidavit of Ms Kelly filed 1/12/2017 par 182

    [52] Affidavit of Mr Hughes filed 1/05/2019 par 78

13. The granting of the request to come in and look round the house reflects well on the father as does his protection of the privacy of his teenage step-daughter TT.

14. On 3 March 2017 Y allegedly reported sexual assault by her maternal grandfather in November 2016, to the mother.

15. On 3 April 2017 the father informed the mother that he wished to take the child to the Sydney Royal Easter Show. The mother informed the father that due to his social anxiety and autism, the child would not cope. This was the first the father had heard of a diagnosis of social anxiety and autism for the child.

16. The father and his partner took the child to Easter Show and the father stated that the child had a good time.[53]

    [53] Affidavit of Mr Hughes filed 1/05/2019 par 79

17. I note that there is no report referred to or firsthand observation made by the Family Consultant of the child being socially anxious or showing indications of autism. Playful, clearly spoken and responsive is a reasonable summary of the observation of the child.[54] The mother may have been reaching for an excuse to object to the planned excursion or she may have in that moment believed that the child was affected in that way.

    [54] Family Report dated 25/07/2018 par 99

18. The mother said that on 5 April 2017 she discovered some lumps on the child’s back. The mother took the child to the hospital and was told that it was a disorder where a person can become covered in hundreds of warts, and that it is a genetic condition. The mother states she believes that the condition has come from the father. The mother states that the warts grew and multiplied and that with treatment she hopes they will go away.[55] There is no medical evidence about that issue.

    [55] Affidavit of Ms Kelly filed 1/12/2017 pars 186-187

19. On 12 April 2017 the mother reported Y’s report of sexual assault to her D Sexual Assualt Clinic counsellor Ms CC.

20. On 18 April 2017 the mother made a notification to the FACS Helpline that Y had been sexually abused in late 2016 by her maternal uncle Mr DD.

21. On 28 April 2017 the father alleges that the mother informed him that she wished for him to have the child every second weekend, as it would be easier for her with Y and would result in less face to face contact.[56] The mother states that they came to this agreement in order to limit the time and it was to commence after Mother’s Day, however shortly after coming to this agreement the mother contacted the father and asked him not to contact her for three months.[57]

    [56] Affidavit of Mr Hughes filed 1/05/2019 par 82

    [57] Affidavit of Ms Kelly filed 1/12/2017 pars 197-198

22. On 2 May 2017 the mother took Y to JIRT to be interviewed in relation to the alleged sexual assault perpetrated by the maternal uncle.

23. On 8 May 2017 JIRT closed the case in relation to Y and the alleged sexual assaults were not substantiated.

24. On 10 May 2017 the mother did not allow the father to spend time with the child on the weekend.

25. On 15 May 2017 the mother attended the Local Court in relation to the assault charge against Mr T.

26. On 25 May 2017 the mother attended her local GP to discuss the possibility of herself and both the children all having Autism Spectrum Disorder.[58]

    [58] Affidavit of Ms Kelly filed 1/12/2017 pars 209-210

27. This focus on autism by the mother does not appear to be supported by medical evidence or triggered by recommendation for assessment. Y too was interviewed for the Family Report. Similar to the subject child, she was observed to be playful, confident, with clear speech and developmentally appropriate for her age.[59]

    [59] Family Report dated 25/07/2018 par 106

28. On 2 June 2017 the father found out the truth of the incident that occurred on 4 February 2017 involving the mother and Mr T. That is to say that it was not “a bad accident” as described by the mother, but an assault on her.

29. The father received a telephone call from the mother’s step-father Mr G Kelly who the father says informed the father that the children had been taken into the care of FACS in early February 2017 after the police became involved in an incident involving the mother.

30. The father then called FACS, who informed him of the events that transpired and of concerns about both children due to the mother alleging that both children had been sexually abused by the mother’s uncle.

31. The father states that he was informed that the mother was also making allegations that she and her sister had been sexually assaulted by her step-father’s friend and that her family is aware.

32. The father had several conversations with FACS. He was informed that workers at the child-care centre had reported welfare concerns due to children being dirty and showing signs of neglect.

33. Over the next few weeks the father maintained contact with FACS, and informed them that he accepted that if urgent action needed to be taken, he would take not only the subject child but Y too into his care.[60]

    [60] Affidavit of Mr Hughes filed 1/05/2019 pars 84-86

34. The mother states that on 2 June 2017 the father called the child’s day-care and tells them that FACS are coming to take the children.[61]

    [61] Affidavit of Ms Kelly filed 1/12/2017 par 209

35. On 6 June 2017 the father alleges he received a telephone call from the maternal grandmother stating that she was concerned about the safety of the children that the mother was manic and unfit to care for the children, and that she had been in contact with FACS.[62]

    [62] Affidavit of Mr Hughes filed 1/05/2019 par 89

36. There was no direct evidence from the maternal grandmother. However FACS was engaged with the mother at this time due to welfare concerns about the children. Accordingly this hearsay information is given some weight.

37. On 8 June 2017 the mother states that FACS attended her home and demanded she sign a medical release form. The mother alleges that FACS used their powers to obtain her consent on the form.[63]

    [63] Affidavit of Ms Kelly filed 1/12/2017 pars 213-217

38. On 16 June 2017 the father states he collected the child from day-care and his clothes were filthy and he had holes in his shoes.

39. On 29 June 2017 the child is reported by his mother to have disclosed to her that he has a ‘baddie’ like his sister, and that he could not tell her who it is.

40. The child told her that his baddie made him watch DVDs he did not really like. The mother said she assumed this means he has been exposed to some form of pornography.[64] The mother states that the child also disclosed that the father knows the ‘baddie’. The mother then arranged a meeting with the father and day-care director. [65]

    [64] Affidavit of Ms Kelly filed 1/12/2017 par 228

    [65] Affidavit of Ms Kelly filed 1/12/2017 pars 229-230

41. On 30 June 2017 the father alleges that the mother telephoned him at work and accused a family friend, Mr NS, of exposing the child to pornography. The father stated he told the mother that this would have been impossible because the child had only spent time with Mr NS in the presence of the father once.

42. Later that day, the father met the mother at the carpark of the child’s day-care for a meeting with the day-care director.

43. The father states that the mother then continued to make further allegations that the paternal grandfather [Mr F Hughes] and the father’s brother-in-law [Mr FF] had molested the subject child. The father stated that when he questioned the mother about this, because previously she had been making allegations about Y being sexually assaulted by maternal family members, the mother informed him that she had placed AVOs on all her family members to protect the children.

44. The father stated the mother then smiled at him, giggled and said “we know what you did to me”. The father then had a meeting with the child-care director alone who he says informed him that they were having difficulties with the mother’s conduct.[66]

    [66] Affidavit of Mr Hughes filed 1/05/2019 par 92

45. The mother states that she explained to the father that the child had expressed to her that he was being forced to watch inappropriate DVDs, and that the mother did not want the child to be exposed to pornography. The mother states she informed the father that he needed to take responsibility for the child while he is in the care of the paternal family.[67]

    [67] Affidavit of Ms Kelly filed 1/12/2017 par 231

46. Any such genuine concern held by the mother would be properly raised. However the impression I had listening to the evidence of the mother was that if she had a thought that abuse of a child might have taken place, that thought became a fact at once without reality testing with the child or consideration of other explanations. It also seemed to be the case that if those accused were offended or upset about the accusations the mother could not understand why that would be.

47. On 3 July 2017 the father had his last communication with the child until fresh proceedings were commenced.

48. On 7 July 2017 the father states he was contacted by the FACS case worker previously assigned to the matter, who informed him that the mother had made a complaint against him [the case worker] and there would be a new caseworker assigned.

New relationship for mother

1. During this time the mother had a three month relationship with Mr GG. The mother is alleged to have consumed a number of alcoholic beverages and told police that Mr GG had shoved an unknown pill into her mouth, which made her feel sick. The mother asked police to record the incident.

2. In mid-July 2017, the father states that he contacted Ms HH from FACS who informed him that the Department had investigated the matter and no longer had concerns about the children, and thus the investigation had been closed.[68]

   [68] Affidavit of Mr Hughes filed 1/05/2019 par 93

3. On 21 July 2017 the father alleges that he received a telephone call from the mother where she informed him they would be reverting back to the spend time arrangements in accordance with the orders and all the extra time would be ceasing, he also alleges that the mother told him that he needed “to get over her”.[69]

   [69] Affidavit of Mr Hughes filed 1/05/2019 par 94

4. On 24 July 2017 the father was due to spend time with the child on Monday in accordance with the orders. The father alleges that the mother informed him that the child was sick and that he wouldn’t be allowed to spend time with him. The father alleges that the mother then became aggressive and verbally abusive, calling him a ‘creep.’ The father contacted the police however they declined to assist him.[70]  

   [70] Affidavit of Mr Hughes filed 1/05/2019 par 95

5. The mother thereafter ceased making the child available to spend time with the father.

6. On 28 July 2017 two things happened.

7. First, the father received a letter from the mother’s solicitor referencing the decision (November 2016) from Victims Rights, the letter advised that the mother was applying to Legal Aid to have the parenting orders discharged.[71]

   [71] Affidavit of Mr Hughes filed 1/05/2019 par 97

8. Second, the mother collected the child early so he was not available for time pursuant to orders.

9. The events of this day are clear evidence of the mother relying on the decision of Victims Rights to cut off the relationship between the father and the child.

10. On 31 July 2017 the father was due to spend time with the child however the mother informed him that the child was unwell. The father received a telephone call from the day-care stating that the child had been in attendance that day and that he was well.[72]

    [72] Affidavit of Mr Hughes filed 1/05/2019 par 98

11. In August 2017 the father and his partner moved to live in Suburb VV.

12. On the 27 August 2017 Suburb Z police advised the mother that the proceedings against Mr T would be withdrawn.

Fresh Application – Family Court of Australia

1. On 29 August 2017 the father filed an Initiating Application in this Court seeking that he have sole parental responsibility, that the child live with him and spend substantial time with the mother.

2. I infer that the father had become sufficiently concerned about the propensity of the mother to comply erratically with Court Orders that he proposed that the child live with him. However at that time he did not consider excluding the mother from the life of the child. He proposed substantial time.

3. On 23 September 2017 the mother reported to the FACS Helpline that the child had been sexually abused by his paternal grandfather Mr F Hughes, when he was three years old. [The child turned three in mid-2015].[73]

   [73] Affidavit of Ms Kelly filed 1/12/2017 pars 221-225

4. No explanation was given for why the notification was not made spontaneously.

5. The mother also reported that Y is doing the Protective Behaviour’s Course through D Sexual Assault Clinic on referral by JIRT as Y has been sexually abused by the maternal uncle Mr DD. The mother states she contacted the police about it, and they did nothing, however it is being addressed by FACS.

6. The mother stated that she had seen signs of possible sexual abuse of the subject child “for years now” and that when the child would return from spending time with the father and paternal family he would grunt and hiss at his sister and try to wrestle and dominate her.

7. The mother also stated that the child had been displaying a range of intestinal difficulties and general sickness every time the child spent time with the paternal family.[74] I note that the mother’s own record is entirely inconsistent. She  describes the child as:

   Very sick on return. I believe I took him to doctor and they realised he was overdue for his needles. He actually is not technically sick so they give him the needles. I hardly sleep he is so sick.

   [74]Affidavit of Ms Kelly filed 1/12/2017 par 226

8. It would not be possible to conclude from this account of the mother whether the child had been sick to any extent.

9. The inference the mother has drawn in retrospect from behaviour on return and “sickness”, appears to be another example of the mother perceiving links between unrelated matters.

10. On 3 October 2017 Ms RR [D Sexual Assualt Clinic counsellor] from D Sexual Assault Clinic tells FACS that the mother refers to the subject child as a ‘child of rape’, that the mother is fixated on the child’s father and that when Y was referred to counselling by JIRT, the mother was disorganised and missed appointments. There was no consistency for counselling.

11. The mother told Ms RR (the D Sexual Assualt Clinic counsellor) that she was applying to Victims of Crime (presumably for a payment) due to FACS removing her children earlier in the year. Ms RR (the D Sexual Assualt Clinic counsellor) said that when she first met the mother, the mother wanted him to have contact with his Dad, however recently she has “changed her tune”.

12. On 5 October 2017 the charges against Mr T and the ADVO in protection of the mother were dropped at Suburb Z Local Court.

13. On 6 October 2017 police records indicate that the mother contacted police (approximately six-eight weeks after the initial incident on 4 February 2017) to inform that she had suffered further injury to her knee and thumb. The police COPS event states that “Ms Kelly seems to have an agenda consistent with Victims of Crime compensation for her injuries.”[75]

    [75] Exhibit 13

14. On 18 October 2017, a Parenting Capacity Assessment of the mother is completed by psychologist Ms JJ at the request of FACS. The mother tells Ms JJ that no other adults witnessed the assault on her by Mr T on 1 February 2017. This is inconsistent with her own version of events.

15. On 3 November 2017 the mother tells FACS that she wants B and Y to do a Protective Behaviour’s Course with D Sexual Assault Clinic.

16. FACS however, do not support this as they have not substantiated the allegation of sexual abuse for B in regards to the paternal grandfather.

17. When the mother was informed of this she shouted at the caseworker and complained that she was not supportive of her, stating that because she has a letter from Victims of Crime saying that the father had raped her, FACS had to acknowledge that.[76] The mother was alleged to have said that as both Victims of Crime and FACs were government departments, the FACS worker must tell the mother that she believes that the mother was raped. The mother states that FACS are not protecting the child and they should not be allowing the father to have contact. The mother then sends a text message to the caseworker saying that the child has been sexually assaulted by his “Pop” and the child is a product of sexual assault.

    [76] Exhibit 31

18. On 6 November 2017 Dr W sees the mother and advises the mother’s new GP Dr KK, that the mother is highly suspicious of how B is being treated by both [Mr Hughes] and his father to the point where she strongly suspects sexual abuse. This has been reported to the authorities.

19. On 10 November 2017 the mother states that an incident occurred where the child assaulted a girl in his class.

20. On the 17 November 2017, the mother’s GP Dr KK confirms with FACS that the mother does not have autism.

21. On 21 November 2017 the mother states that she had her final session of trauma counselling with her psychologist, Ms JJ, provided to her through her Victims Services.[77]

    [77] Affidavit of Ms Kelly filed 1/12/2017 par 282

22. On 1 December 2017 the mother filed a Response in these proceedings. She proposed sole parental responsibility for herself, for the child to live with her and to spend time with the father at a contact centre four times a year for identification purposes only.

Interim Orders - 01/12/2017

1. On 1 December 2017 interim orders (“the interim orders”) were determined pending trial.

1. The father commenced spending time with the child on alternate weekends and half school holidays. A number of restraints were imposed, one such restraint was the father being restrained from causing or permitting the child to be in the physical presence of the paternal grandfather unless the father was also present.[78]

   [78] Family Court of Australia Order dated 1/12/2017

2. On 2 December 2017 the father commenced spending time with the child for the first time since July 2017.

CAPIA - January 2018

1. On the 11 January 2018, a Children and Parents Issues Assessment (“CAPIA”) was released.

2. In evaluating the matter the Family Consultant identified the following issues, which were still live at the trial more than a year later.[79]

   [79] Children and Parents Issues Assessment dated 11/01/2018 pars 64-68

3. That is that if the father was correct in his assertion that that the mother was deliberately making false allegations against the father and extended paternal family to prevent the father enjoying a meaningful relationship with the father and his family, then that was a very serious form of child abuse.

4. That if the mother’s assertions were correct that the father had behaved in an abusive manner and forced the mother to be in continuing contact with him that would seriously impact on the mother’s mental health and functioning.

5. The matters noted after those comments reflect the reservations and concerns I hold having heard all of the evidence.

6. First, that the mother has not made a formal statement to police about her accusations and therefore no investigation has occurred.

7. This continues to be so although the mother has spoken about doing so. Almost eight years have now passed since the child was conceived.

8. Next, that it is not known what information was available to the Commissioner of Victims Rights when they made a decision to award the mother a recognition payment of $10,000 for sexual assault and trauma

9. In the Notice of Decision by the Victims Rights Commissioner dated 8 November 2016 there are these statements amongst others:

   While matters were reported to police it appears the applicant is yet to provide police with a formal statement.[80]

   I have viewed details of family law proceedings between the parties.[81]

   [80] Affidavit of Ms Kelly filed 1/12/2017 Annexure ‘A’ ‘Notice of Decision’ par 12

   [81] Affidavit of Ms Kelly filed 1/12/2017 Annexure ‘A’ ‘Notice of Decision’ par 10

10. It is unclear whether the final parenting orders made by consent eight months prior, on 19 February 2016, were part of what was viewed by the assessor and if they were whether the implications of what the mother agreed to were taken into account.

11. I have concluded that the mother was profoundly affected by this decision which she relies on as compelling evidence, proof positive, of having been raped by the father in 2011.

12. It would be surprising if any lay person reading the document did not interpret the document that way.

13. The mother herself knows that the decision is based mostly, if not entirely, on what she said herself and to Counsellors. She volunteered the information in the witness box that the father’s name does not appear in the document because he was not spoken to at all. His side of the story remains untold.

14. It does seem extraordinary that compensation has been paid “on the balance of probabilities” when what was being weighed was simply the likelihood that the story which was told by the mother, whatever that was, was true and accurately recalled.

15. On the evidence before me, given by both parties, no such finding is open.

16. The risk of the child being given the document to read in future is high. Unless the matters set out above are explained to the child he is likely to accept the finding as truth about his father.

17. Having made those comments a copy of the orders and reasons for judgement will be provided to the Commissioner of Victims Rights.

18. In January 2018 the child commenced school.

19. On 16 February 2018 Dr W [the mother’s psychiatrist] became aware that the mother was using cannabis because she had disclosed that fact to the Family Consultant and subsequently told Dr W.

20. In May 2018 FACS apparently ceased involvement with the mother

Family Report

1. On 4 May 2018 a Family Report was ordered in the matter and released two months later.

2. The recommendation of the Family Consultant subject to findings by the Court about risk was that the child move to live with the father and that the father have sole parental responsibility.

3. A recommendation was made for therapeutic counselling for the mother and time for the child with the mother in stages.

Is the child sick?

1. In August 2018 the father states that the mother informed him that the child might have a hole in his heart, but would not be able to get into a cardiologist until February or April next year [2019]. The father asked the mother to keep him informed but asserts he has not heard anything further on the issue or seen any referrals and/or documents from the child’s doctor.[82]

   [82] Affidavit of Mr Hughes filed 1/05/2019 par 105

2. On 15 August 2018 the father dropped the child off at school and believed that the child was healthy. When the father tried to call the child the next day, the mother answered the telephone and said “You sent him to school sick. You can’t speak to him today.”[83]

   [83] Affidavit of Mr Hughes filed 1/05/2019 par 104

Misinterpretation of an order by the father

1. On 29 August 2018 the father had organised for the paternal grandparents to pick the child up at the conclusion of day-care in order for him to spend time with the father.

2. The paternal grandparents were coming through the M Region from SS Town to travel to Newcastle. The father stated that the paternal grandfather waited in the car while the paternal grandmother collected the child. The mother then called the father demanding that the child be returned. The father organised for the child to be returned to the school. The father stated that he overlooked Order 7 of the interim orders and believed that it was okay for the child to be present with the paternal grandfather as long as someone was around, as the paternal grandmother was there.[84] The father states he believed that he had complied with orders, however when he realised that he himself needed to be present he organised for the child to be returned. The father stated that due to this he did not spend any time with the child over the September/October school holidays.[85]

   [84] Family Court of Australia Orders dated 1/12/2017 O 7

   [85] Affidavit of Mr Hughes filed 1/05/2019 pars 106-112

3. On 19 October 2018 the father was due to spend time with the child, however the mother cancelled.[86]

   [86] Affidavit of Mr Hughes filed 1/05/2019 par 121

4. On 2 November the father was due to spend time with the child, however again the mother cancelled.[87]

   [87] Affidavit of Mr Hughes filed 1/05/2019 par 123

5. At the end of October or the beginning of November, the mother alleges that the father attended the school and attempted to remove the child, in direct contravention of the previous Court orders.[88]

   [88] Affidavit of Ms Kelly filed 28/03/19 par 5

Trial dates allocated

1. On 9 November 2018 procedural orders were made by this Court setting the matter down for a final hearing to begin in April 2019.

2. On 11 November 2018, a COPS entry record states that the mother rang police and told them that her ex-partner Mr Hughes had been charged with sexually assaulting her and the court trial was about to start in April.

3. Police then are reported to have then conducted checks which revealed that the father was never charged and is not currently before the Court.[89]

   [89] Exhibit 5

4. When the mother was informed of this she changed her story claiming that she was in Court on 9 November 2018 for Family Law matters with Mr H. with a Court hearing to commence in April.

5. On 14 November 2018 the father has a telephone call with the child. However after this, the mother then stops telephone time. The mother states that on this date the child is diagnosed with a heart murmur.[90]

   [90] Affidavit of Ms Kelly filed 28/03/19 par 30

6. On 16 November 2018 the father was due to spend time with the child, however the mother cancelled.[91] On this date, FACS visited the mother’s home due to concerns they have about the mother’s mental health and the welfare of the children.

   [91] Affidavit of Mr Hughes filed 1/05/2019 par 124

7. On 20 November 2018, the mother became irate when the child’s school would not give her an assurance that they would not allow police or FACS to remove the children. The mother is alleged to have stated that she would not return the child to the school until she is given that assurance.

8. On 22 November 2018 a FACS record states that the mother made a report claiming that the father has “taken a hit out on her”, that he has killed a family chicken and that he often puts things in her drink. The mother states she has applied for a Victims Rights payment for sexual abuse of B by the paternal grandfather.[92]

   [92] Exhibit 5, Exhibit 8

9. On 30 November 2018 the father is due to spend time with the child, however the mother again cancels.[93]

   [93] Affidavit of Mr Hughes filed 1/05/2019 par 127

10. On 4 December 2018 the father states he contacted the school about attending a school concert and Christmas parade, when he was informed that the child had not been in attendance for over a week due to tonsillitis and that they were extremely concerned about the child’s poor attendance throughout the year.[94]

    [94] Affidavit of Mr Hughes filed 1/05/2019 par 118

11. Following on from this conversation with the school, the father contacted FACS who informed him that they have carried out a risk assessment given the concerns about the children’s schooling.

12. The father alleges that FACS informed him that they were having significant concerns about the mother right now, due to her acting significantly paranoid and not leaving the house.[95] The father states he then telephoned the maternal grandmother, the maternal grandmother informed the father that she had not heard from the mother recently, however the mother had contacted her brother. She stated her last telephone call with her was on 9 November 2018 when the mother called accusing her of trying to steal her babies away and that she and the father were trying to take them away from her. [96]

    [95] Affidavit of Mr Hughes filed 1/05/2019 par 119

    [96] Affidavit of Mr Hughes filed 1/05/2019 par 128

13. In her oral evidence the mother expressed the distress she had felt when the father advised the Court that the maternal grandmother would be a witness for him. That evidence is consistent with the mother accusing her own mother of trying to take her children away.

14. In late 2018 FACS contacted the mother’s psychiatrist Dr W as they were concerned about the mother’s level of paranoia.

Applications in a Case

1. On 12 December 2018 the mother filed an Application in a Case seeking that all orders be discharged, that the mother have sole parental responsibility and the father spend time with the child at a contact centre.

2. On 14 December 2018 the father was due to spend time with the child however the mother cancelled.[97]

   [97] Affidavit of Mr Hughes filed 1/05/2019 par 130

3. On 16 December 2018 the father states that he received a telephone call from the mother requesting adjournment of the next Court event. When the father informed the mother that the event was in the hands of the lawyers she asked him whether he agreed to his telephone call being recorded and commenced speaking in a sharp tone.[98]

   [98] Affidavit of Mr Hughes filed 1/05/2019 par 137

4. On 16 December 2018 the father filed a Response to an Application in a Case seeking that all orders be discharged, the father have sole parental responsibility, for the child to live with him and spend supervised time with the mother at J Organisation.

5. On this date the father also filed a Contravention Application against the mother.

6. On 18 January 2019 the Application in a Case filed by the mother and the Contravention Application filed by the father were both withdrawn/dismissed. The father’s time was reinstated and the restraint on the paternal grandfather being present was varied, so that the paternal grandfather could be in the presence with the child if he was supervised by the paternal grandmother and/or the father.

7. The father alleges that after leaving Court, the mother said to him “I feel ashamed to call myself an Australian” and “You should feel ashamed of yourself”.[99] The father then states that later that night he received an invoice addressed to the father from a business name owned by the mother and registered from 28 June 2016. The Tax invoice was for $300 and stated it was “for lost working hours from today” being the Court date. The mother stated she had more tax invoices to send through.[100]

   [99] Affidavit of Mr Hughes filed 1/05/2019 par 141

   [100] Affidavit of Mr Hughes filed 1/05/2019 par 142 - page 55 father’s ‘Tender Bundle’

8. On 18 January 2019 a FACS record states that the mother has declined to complete any urinalysis testing but has advised that she still smokes cannabis on the odd occasion, as well as drinking alcohol most nights. The mother describes her childhood as quite traumatic and refers to herself as a victim of her mother’s emotional and psychological abuse.[101]

   [101] Exhibit 9

9. On 19 January 2019 the father states he attended changeover to spend time with the child for ten days as per the orders made 18 January 2019. The father states that the mother was late and then informed him that the child had mumps.

10. The mother had informed the father that the child was eating gluten free as he was had an allergy to yeast. The father states that during the 10 days he adhered to a gluten free diet in relation to the child. The father stated he noticed a change in the child’s health. At changeover the father informed the mother about this. When the father spoke to the child a few weeks later, the child told the father that the mother was feeding him KFC for dinner.[102]

    [102] Affidavit of Mr Hughes filed 1/05/2019 pars 143-147

11. On 23 January 2019 the mother is alleged to have informed FACS that the child was in immediate danger and is being molested by his grandfather Mr F Hughes right at this moment. She says Australia Day is coming up soon and the grandfather is going to rape B on Australia Day. FACS are concerned that the mother’s mental health is deteriorating and there is a psychological effect on the children.

12. On 7 February 2019 the mother’s former solicitor filed a Notice of Ceasing to Act.

13. On 15 February 2019 the father alleges that the mother sends a text, telling the father that the child’s heart was beating too fast and his murmur was strong.[103]

    [103] Affidavit of Mr Hughes filed 1/05/2019 par 148

14. On 16 February 2019 the mother texts the father telling him that the child was not doing well and needed to go back to the doctor. Later that day the mother tells the father they are home from the hospital and he has an ear infection.[104]

    [104] Affidavit of Mr Hughes filed 1/05/2019 par 149

15. On 20 March 2019 the father alleges that when he called the child for their weekly telephone call, the mother informed him that the child was sick and she was taking him to the medical centre at K Town. Later that evening the mother informed the father that the child was being sent to H Town Hospital for some tests the next day.[105]

    [105] Affidavit of Mr Hughes filed 1/05/2019 par 152

16. The father alleges that the next day, on 21 March 2019, when he texted the mother to ask how the child was doing, the mother telephoned him and stated the following; “It’s all your fault that the child’s got to this stage. You held me back from getting medical advice for B through constant harassment through FACS. You’re a little cunt and I want you to stay away or I’ll have you.” The father states he then ended the telephone call and spoke to the hospital on two separate occasions later that night. He states he was told both times that the child was well, that he was on antibiotics as a precautionary measure and they were running tests.[106]

    [106] Affidavit of Mr Hughes filed 1/05/2019 par 153

17. There is no medical evidence to suggest otherwise.

18. On 22 March 2019 the father spoke with the hospital who informed him that the child was well but they were not sure what was wrong so they were keeping him overnight. The father was due to spend the weekend with the child.[107] The father alleges the mother texted him, suggesting a swap of weekends. When the father informed the mother that he was already on the way to the hospital to visit the child, he alleges the mother stated, “You’ve been trying to break my family up for five years and stay the fuck away”.[108] The father states that when he arrived at the hospital he was told by the doctors that the child did not have Lymphoma and stated that it was likely just a throat infection. The father states he asked the doctor about the child’s heart but was told there was nothing wrong.[109]

    [107] Affidavit of Mr Hughes filed 1/05/2019 par 154

    [108] Affidavit of Mr Hughes filed 1/05/2019 par 155

    [109] Affidavit of Mr Hughes filed 1/05/2019 par 156

Adjournment Application by Mother

1. On 23 March 2019 the mother filed an Application in a Case seeing to vacate the upcoming final hearing.[110] This was opposed by the father.[111]

   [110] Application in a Case filed by the mother on 28/03/2019

   [111] Response to an Application in a Case filed 1/04/19

2. Orders were made in this court vacating the hearing dates in April and setting down fresh hearing dates in May.

3. On 5 April 2019 the father filed an Amended Initiating Application seeking that he have sole parental responsibility, that the child live with him and spend supervised time with the mother at a contact centre.

4. It is apparent that the father’s concerns about the child in the care of the mother had escalated.

5. On that date the father was due to collect the child from school. It had become his usual practice to call the school beforehand to see whether the child had been in attendance on that day. The father states he was not. He then contacted the mother, who informed him that the child was sick and she was worried about his glands and high temperature, and as such she was taking him to H Town Hospital the next day.[112]

   [112] Affidavit of Mr Hughes filed 1/05/2019 par 80

6. On 6 April 2019 the father states he and his partner [Ms L] met the mother at H Town Hospital. The doctor examined the child and Y, however did not diagnose any problems and gave the parties the all clear to go home. The father states the mother alleged that [Ms L] was not being friendly. Y also told the father that on the night before, she and her brother [the child] had been at a kids disco.[113]

   [113] Affidavit of Mr Hughes filed 1/05/2019 par 81

7. On 17 April 2019 the father is spending time with the child over Easter when he received a text from the mother asking if she could have a quick chat. The father states he facilitated the call and left the telephone in the room with the child to give him some privacy, however when he came back into the room the child was crying because he said he missed his mum. The father states that later that evening he received a telephone call from the mother alleging the child was sick and that he needed to take his temperature. The father states he replied that the child was fine and did not have a temperature.[114]

   [114] Affidavit of Mr Hughes filed 1/05/2019 par 158

8. Later that night the father had two missed calls and a text from Newcastle Police. He called the police, who told him that the mother had called police behaving in an aggressive manner and saying the child was in danger of having a temperature as he is still an outpatient at H Town Hospital and his temperature had not been taken. The father states he informed the police that the child was fine and had been asleep for over an hour. The police state that the mother was demanding a welfare check, however they did not carry one out. The father told the mother the child was exhausted.[115]

   [115] Affidavit of Mr Hughes filed 1/05/2019 par 158

1. On 18 April 2018 the father states he received another text message from the mother asking about the child and requesting to speak with him. The father states that he did not facilitate this call.[116] The father alleges he then received a call from Newcastle Police at 4.00 pm stating that the mother was behaving in an aggressive manner and asked them to carry out a welfare check. The police arrived 20 minutes later to check on the child, who was playing in his room. The police also checked the father’s telephone as the mother stated the father was not responding to her texts or calls. The father states the police were satisfied that everything was okay, and they were not happy that the mother was wasting their time.

   [116] Affidavit of Mr Hughes filed 1/05/2019 par 159

2. The father states that the police let the child have a look in the car and turned the lights and sirens on for him.[117]

   [117] Affidavit of Mr Hughes filed 1/05/2019 par 160

The Trial - May 2019

1. On 2 April 2019 orders were made that allocated the matter fresh hearing dates in May 2019 and the trial directions were varied.

2. On the evening of the last working day before the trial commenced the mother filed an affidavit. She sought leave to rely on prior affidavits of herself. Supporting affidavits by witnesses, who had not previously been identified, were filed well out of time.

3. Concessions were made by the father about admission of most of the material, no doubt to have the matter heard and determined without further delay.

4. The father was legally represented and had briefed counsel.

5. The mother had been granted Legal Aid, was legally represented and had briefed counsel.

6. The Independent Children’s Lawyer (“ICL”) had briefed counsel.

7. The trial proceeded and the matter was concluded within the four days allocated.

8. Judgment was thereafter reserved.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The Applicant Father - Mr Hughes

   (a)Amended Initiating Application filed 5/04/2019;

   (b)Affidavit of the father filed 1/05/2019 (with Tender Bundle);

   (c)Affidavit of Ms L, the father’s partner, filed 8/03/2019;

   (d)Affidavit of Mr F Hughes, the paternal grandfather, filed 8/03/2019;

   The Respondent Mother - Ms Kelly

   (e)Response filed 1/12/2017;

   (f)Affidavit of the mother filed 1/12/2017;

   (g)Affidavit of the mother filed 12/12/2018 [pars 6-35];

   (h)Affidavit of the mother filed 10/05/2019 [pars1-3, 5, 6, 353-355, 357-365];

   (i)Affidavit of Ms LL, neighbour, filed 1/05/2019;

   (j)Affidavit of Ms NN, neighbour, filed 1/05/2019;

   (k)Affidavit of Ms PP, the mother’s friend, filed 3/05/2019;

   (l)Affidavit of Mr EE, the maternal grandfather, filed 8/05/2019;

   Reports

   (m)Family Report dated 22/07/2018;

   (n)Children and Parents Issues Assessment dated 11/01/2018.

Oral Evidence

The Applicant Father

1. The father readily made concessions, for instance that the child had been raised by the mother and had his primary attachment to her. Further that his application for the child to spend no time with the mother or limited supervised time would likely sever that bond.

2. He appeared to understand the difficulties of persuading a Court to change the residence of the child in those circumstances.

3. The evidence suggests that the father might not have chosen to have children, but having fathered one he took his responsibilities seriously and found that he enjoyed caring for his infant son and loved him.

4. I conclude that the safety, both physical and emotional, of the child was at all times uppermost in his thinking. That is to say he knew that the child leaving his mother, sister, school friends and local environment would be hard for him but necessary for his long term welfare.

5. The safety elements for the father include: the propensity of the mother to expose the child to new partners before a relationship is established; the mother’s level of drinking and use of marijuana; the willingness of the mother to make accusations of wrong doing by others, without a factual basis; and to express her feelings and thoughts to, or in the presence of, the child.

6. Another is the allegation of the mother that the child was sexually assaulted by the paternal grandfather when he was three years old. That matter was reported to FACS for the first time by the mother in September 2017 when the child was 5 years. Again this appears to have be an idea in retrospect. As set out earlier in this judgment, the mother reported to FACS that she had seen signs of possible sexual assault for years.

7. The allegation was not substantiated by FACS. Nothing was put, on behalf of the mother, to the paternal grandfather in the witness box about alleged misconduct. The mother however has not resiled from her accusation.

8. The father appeared not to be as attuned as his partner to why the child never speaks of his mother and sister when in the care of the father.

9. The father believes that the child has been instructed by the mother to remain silent about herself and the events in her home. That may be the case. However both parties conceded that the child knows of their mutual dislike for each other so the child who loves both his parents is at a loss to understand their attitude to each other.

The father’s partner - Ms L

1. The father’s partner is aged 45. She impressed as a thoughtful person. She has 18 years experience as a mother which will likely help her to guide the father on issues arising as the child grows up. She has supported a flexible arrangement for her daughter to help maintain her relationship with her own father, “I’ve worked very hard to establish kind parenting. It’s important.”

2. I accept the evidence that Ms L never speaks disparagingly about the mother and would not in future. That is not to say that she approves of the mother. She likely finds the uncontained conduct of the mother inexplicable and inexcusable.

3. Ms L has spoken to a GP and a child psychologist so that the child can experience therapy in a play environment if he lives with the father.

4. I am confident that the father’s partner is independently fond of the child as well as helpfully supportive of the father.

The paternal grandfather - Mr F Hughes

1. The paternal grandfather is a retired school principal and a teacher of 41 years. He and his wife live in Town NV on the South Coast of New South Wales.

2. They have two other adult children beside the father and several grandchildren.

3. The father introduced the mother to his parents after telling them the mother was pregnant and they planned to be parents together if not partners.

4. The paternal grandparents were told by the mother that she was returning to her family in Western Australia to have the baby. The paternal grandparents travelled to Western Australia to visit and meet the baby when the child was about four weeks old. They were warmly welcomed by the mother’s parents.

5. When mother and baby returned to New South Wales they stayed with the paternal grandparents for a few days.

6. During 2013 when the mother was pregnant with Y the paternal grandparents regularly helped the father care for the subject child, several nights per week, so the mother could have a break and rest.

7. In 2014 the mother became insistent on the paternal grandparents being present when the child was with his father. The paternal grandfather questioned the father about that, but accepted that his son could not understand the reason for such a restriction being imposed. The father described the mother to his father as “fragile due to her mental health.”[118] To help him, they went along with it.

   [118] Affidavit of Mr F Hughes filed 8/03/2019 par 14

8. In February 2015 the father rang his father and cried on the telephone. The mother had left with the child and not told the father where or why she was going.

9. After orders were made late in 2015 the paternal grandparents gladly re-engaged with the child and travelled to Newcastle as often as they could.

10. In December 2017 the father told his father that an order had been made restricting his contact with the child until the matter went to trial.

    [7]The father is restrained from causing or permitting the child to be in the physical presence of the paternal grandfather unless personally supervised by the father.[119]

    [119] Family Court of Australia Order dated 1/12/2017

11. The paternal grandfather through his training and occupation was well aware of the implications of accusations of sexual abuse of a child. The mother had raised no complaint with him. It was a great shock. The paternal grandfather was horrified and deeply saddened.

    It is very sad, but since these allegations were raised I’m aware of the need to be not on my own or to put myself in a vulnerable position with any of my grandchildren.[120]

    [120] Affidavit of Mr F Hughes filed 8/03/2019 par 18

12. Unfortunately the paternal grandfather was apparently not given a copy of the relevant order.

13. In September 2018 the paternal grandparents collected the child from his school on the M Region on their way north to Newcastle. The paternal grandmother collected the child while the grandfather waited in the car. I conclude that they believed that the paternal grandfather was not to be alone with the child and were unaware of the requirement for the father to also be present.

14. The mother saw the collection of the child at school. She was there herself to pick up Y. The mother made a telephone call and required the child to be brought back to her. I do not consider that the mother believed the child would come to harm. Rather she was triumphant about being correct in her interpretation of the order which the father had misinterpreted.

15. The sad outcome for the child was a period of four months where he was not made available for time with the father or any member of his family.

16. There was a joyous reunion between the child, father and paternal grandparents in January 2019 after the matter had been resolved (on an interim basis) at Court.[121]

    [121] Affidavit of Mr F Hughes filed 8/03/2019 par 20

17. There is no evidence of any description of the paternal grandfather causing harm of any kind to the child. Quite the reverse. The paternal grandparents are a great source of love, comfort and engagement in learning for the child.

The Respondent Mother

1. The mother spoke in a fluid manner in the witness box giving torrents of information unless stopped from doing so.

2. She showed signs of disturbed and irrational thinking and elements of her evidence suggested she suffers from fears without cause. For instance she asserted that the paternal grandfather had a contract out on her life and that the assault upon her by Mr T had been “arranged” by the father, “He put him up to it.”

3. Her mood appeared to fluctuate. At times she appeared smug, self-righteous and defiant and at others fearful and wary.

4. There was no medical evidence. The mother reports consulting a psychiatrist Dr W and a psychologist. The mother described herself as suffering at different times in her life from ADD, PTSD, anxiety, depression and Bipolar Disorder. She asserted she had been told she is on the Autism Spectrum although the records of Ms JJ put that in doubt. Her oral evidence is that she will shortly be undergoing a scan to exclude or diagnose Multiple Sclerosis.

5. Those diagnoses, or any of them, may or may not have been made by practitioners qualified to do so. The unqualified opinion of the mother cannot be conclusive.

6. The mother also said “I suffer from a lot of pain and can’t use drugs.” That statement was inconsistent with a later statement that the mother presently takes a prescription drug. The statement was a general reference to prescription drugs. The mother drinks alcohol, sometimes to the point of intoxication, and smokes marijuana in a fluctuating pattern.

7. When directions for trial were made in November 2018 the mother advised that her psychiatrist Dr W would provide an affidavit. That did not occur.

8. It would have been helpful to know whether the mother is mentally ill or disordered and if so whether she is seeking treatment, and if so is complying with medication or other treatment regime.

Ms NN - neighbour

1. Ms NN has been a kind and helpful neighbour and friend to the mother.

2. She has minded the subject child and his sister, and went along to preschool graduation in a grandparent role.

3. Ms NN thought the mother was stressed because “she feared B was going to be snatched away.” When asked who was going to do that she responded, “The child’s father, I’ve known that all along”.

4. Only the mother could have provided the information to Ms NN. The evidence does not support a finding that the father has ever tried or intended to “snatch the child”. The evidence does support a finding that at least since January 2017 the mother has feared that FACS might remove both children from her care.

5. It is likely that the mother told Ms NN what she did to enlist her sympathy and assistance.

Ms LL - neighbour

1. Ms LL gave evidence by telephone link from France. She has known the mother since the latter moved into the area in 2017.

2. Ms LL intervened on behalf of the mother when FACS came to her house. Ms LL saw the officers in their car, approached, recognised that one of them was the daughter of a friend and persuaded that officer to explain why they were there.

3. Ms LL conceded “They shouldn’t have told me anything I know. Important point.” That concession is certainly appropriate.

4. The officers had come to ask the mother to sign a release for medical records. The mother had a neighbour in Ms LL who she perceived as influential and well connected to help her.

5. Ms LL believed that in February 2017 “[the mother] attended a party with her children. A man at the party attacked her and threw a tyre lever at her head.”

6. Only the mother could have supplied that information.

7. It is likely that the mother said what she did and also asked Ms LL to be an emergency contact at the child’s school in order to enlist her protection and support.

Mr EE - the maternal grandfather

1. The affidavit of Mr EE was not objected to despite the unavailability of the witness for cross-examination on the basis that it had minimal forensic value.

2. The maternal grandfather lives in Western Australia. He separated from the maternal grandmother when the mother was an infant. The mother was raised by her mother and step-father.

3. The affidavit is evidence of current goodwill but limited historical knowledge.

Ms PP – Mother’s friend

1. This affidavit too was not objected to despite the unavailability of the deponent.

2. Ms PP also lives in Western Australia. She and the mother were school friends and have maintained a close connection since.

3. Her evidence is that she accompanied the mother to her first ultrasound. She describes the mother in this way:

   She was definitely unclear as to the father, which is why she wanted to know the dates and was disappointed when this was not possible…[122]

   She was upset and trying to work things out. She said that it’s happened and she didn’t know when it had happened but that she wanted to be happy.[123]

   I recall [Ms Kelly] did not even like B’s father. [Ms Kelly] let it go at the beginning, but she started to piece things together, and it all unfolded.[124]

   [122]Affidavit of Ms PP filed 3/05/19 par 4

   [123]Affidavit of Ms PP filed 3/05/19 par 5

   [124]Affidavit of Ms PP filed 3/05/19 par 6

4. I conclude from this evidence that the mother was in November 2011 uncertain about which of two sexual partners was the father of the child

The Family Consultant - Mr QQ

1. The Family Consultant had, by consent, read a report by a forensic psychologist Ms MM prepared on behalf of the mother.

2. The report was served on the other parties on the night before the first day of trial. It was not relied on by the mother. This was a sensible course.

3. The report had been commissioned on 11 April 2019 as a forensic exercise. Without reference to the other parties, or application to the Court, documents had been supplied to the psychologist, who was not a treating psychologist. The documents included the trial affidavit of the father and documents produced in response to subpoena.

4. It was an improper exercise which should not have been undertaken.

5. Nevertheless the report was tendered into evidence by the ICL.[125]

   [125]Exhibit 25 - Confidential Psychology Report by Ms MM of Ms Kelly dated 2/05/2019

6. Included in that report were these statements:

Diagnostic Considerations

Response patterns were most consistent with a diagnosis of .[126]

[126]Exhibit 25 - Confidential Psychology Report by Ms MM of Ms Kelly dated 2/05/2019 par 58

Note: This disorder was explained by the Family Consultant as ‘where someone presents with a somatic condition with no medical or physical examination.’

Diagnostic Impressions

Based on the discrepant information obtained from the clinical interview and reports, and the level of impression management found in the assessment [Personality Assessment Inventory –Testing], the author was unable to substantiate whether Ms Kelly currently meet(s) the diagnostic criteria for a psychological condition.[127]

[127] Exhibit 25 - Confidential Psychology Report by Ms MM of Ms Kelly dated 2/05/2019 par 59

1. The Family Consultant in his oral evidence said that the remarks of the forensic psychologist as to the mother’s presentation accorded with his own observation as to “impression management”.

2. I infer that both practitioners considered that the mother gave information and answers to questions based on what she considered would assist her case rather than the truth as she knew it.

3. This is consistent with the reflections of the forensic psychologist that the mother did not trust professional advisers and with my own impression that the mother did not trust the legal system.

4. Most significantly the mother stated that if she did not consider that the child would be safe with the father, then she would not comply with Court orders.

The Law

1. The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

4. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.

Parental Responsibility

1. There is no prospect now of equal shared parental responsibility. There has been a relationship between the parties in the past especially in 2013 there was a relationship of friendly cooperation as parents.

2. Now however the mother has concluded that the father raped her and feel confirmed in that view by the decision of the Victims Rights Commissioner to make a recognition payment. The mother feels vindicated and gratified. She describes herself as a warrior for justice. Her stance is one of a loving parent protecting her child from an abuser.

1. The mother regards the father as an intruder into the life of herself and the child.

2. The father has lost all trust and confidence in the mother and believes she is unstable and a safety risk for the child.

3. Consultation about education, medical treatment and religious instruction would not occur effectively or at all.

4. On that basis the parent with whom the child lives will also be the decision maker.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

1. The child has a strong bond with each of his parents. Both parties love him. Ideally that bond would stay in place.

The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

1. There is a risk of psychological harm and to a lesser extent of neglect of the child if he remains in the care of the mother.

2. In February 2017 when the mother was physically assaulted the child showed signs of anxiety and stress at school and at home. He spoke of “chopping off the hands” of anyone who hurt his family.[128]

   [128] Exhibit 12

3. He was reported to have bullied and threatened another child at preschool. The mother became angry and threatening towards the preschool teachers over this incident

4. He is reported by the mother herself to have bullied his sister.

5. The mother criticised those who did not help her to get counselling for the child but in fact she did not take any step herself to organise therapeutic counselling for him. Much more importantly, she did not attend to the child, acknowledge that he had seen her intoxicated and being assaulted nor talk to him about his poor behaviour at preschool and towards his sister. She did not discuss consequences and set limits. She did nothing to reassure and guide him.

6. Instead the mother looked out and blamed authorities. She did not look in, and accept responsibility for some of what had happened and help the child.

7. The mother has spoken disparagingly about the father in front of the child.

8. The mother has withheld the child from school for fear of his removal by FACs.

9. The mother has repeatedly asserted that the child has been suffering a variety of illnesses unsupported by medical evidence.

10. The mother has failed to comply with Court orders for the child to spend time with the father on the basis that if he had misinterpreted the order relating to supervision of his father he could not be trusted to have the child in any circumstances.

11. In those circumstances the child will be in a safer environment physically and emotionally if he now moves to live with his father.

Additional Considerations

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

1. The child was six years old when observed and interviewed. He was wary of providing information and “spoke neutrally about both parents and both households”.

2. He expressed a “weak preference to live predominantly with his mother rather than his father. He could not say why.”[129]

   [129] Family Report dated 25/07/2018 par 102

3. It is apparent that the subject child has learned not to disclose information about his parents which is not helpful to him.

4. Given the pressure this child has been under I give no weight to his views. He could not understand at his age the implications of expressing those views.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. The child is very well loved by his sister, both parents and both extended families.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. The child will certainly feel the shock and upheaval of moving away from the mother to live with his father. He will miss the daily company of his mother and sister and probably worry about them.

2. He will miss school friends but will likely make new ones at the school proposed by his father. There will be a benefit in attending school every day and arriving on time.

3. The child does have a close warm relationship with his father, his father’s partner and her young adult daughter TT. He also enjoys such relationships with the paternal grandparents although he has been affected and made nervous about the paternal grandfather by his mother’s warnings and accusations.

4. I am satisfied that the paternal family will act protectively towards the child.

5. The loss of his sister as a friend and playmate will be immediately painful and could be damaging long term.

6. The child needs to maintain that sibling bond.

7. It would be very helpful if time together for them could be facilitated. The mother is presently estranged from her mother and step-father so it may not happen within the family for instance by the child spending time with his sister in the home of a maternal family member if the mother would agree.

8. The alternative is time together for the children, arranged and supervised by FACS. A copy of these orders and reasons will be served on the Secretary of FACS for consideration of facilitation of such visits.

The practical difficulty and expense of a child spending time with and communicating with a parent

1. The parties live approximately 100 kilometres apart, which takes approximately 90 minutes by car depending on the traffic.

2. The length of the return journey in a day is a factor I have taken into as to the frequency of supervised visits in that period.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. The father has the capacity to meet the child’s emotional needs, he has a warm, loving, affectionate relationship with him. The father is likely to ensure the child gets to school every day and together with his partner would attend to homework, reading and sporting involvement. The father works and would provide well for the child in his household. The father has limited insight into the loss B will experience being separated from his mother and sister and to a lesser extent from his teacher and friends at school.

2. The father is concerned about the physical and psychological safety of the child. It is reasonable to hold those concerns. The mother has had relationships with several men who have been introduced into her household for short periods. The mother abuses alcohol and is probably moderately intoxicated on many evenings when the children are asleep. This makes her less available and responsive to immediate needs such as a wakeful child, and emergencies such as a sick child. That effect is aggravated by marijuana use, a long term habit of the mother. As so many parents do, the mother focused on not being seen by the children using marijuana rather than on her own level of alertness if they needed her when she was drug affected, especially during the night.

3. The subject child is very well loved by the mother. She has a warm, loving relationship with him. The mother has recently been willing to keep the children home from school in order to feel more comfortable herself about their safety. B missed a lot of school in Term 4 in 2018. In Year One that might create a misstep with his learning, but that could quickly be rectified by regular attendance in future.

4. The mother has an impaired capacity to meet the psychological needs of the child to the extent that she tries to protect the child from risks which are not well established.

5. The mother describes the father as a rapist especially when she is angry. She did so on 3 January 2017 with the subject child and his sister listening and watching. It would be damaging to the child to believe that his father fitted that description, even more so if he comes to believe that he, B, is the result of a crime, namely that he was conceived when his father raped his mother. If the mother showed him the document from Victims Rights he is likely to suffer distress and confusion.

6. The mother has not made a statement to police although she has talked about doing so. The father has not been charged. The evidence in this case, thoroughly canvassed through cross-examination by counsel for the mother does not give rise to a finding of sexual assault on the balance of probabilities. A recognition payment of $10,000 has been seized by the mother as evidence of an assault on her having definitely taken place. It is not. It is evidence of what the mother told the Commissioner and her recent counsellors. It seems improbable that the mother will cease telling people she was sexually assaulted by the father.

7. The mother expressed the view that the paternal grandfather has a contract out to kill her. There is no evidence whatsoever of that being the case.

8. The mother has continued since mid-2017 to express the view that unsupervised time for the child with the paternal grandfather would put the child at risk of sexual harm. The mother reported her fears in that regard. They have not been substantiated by authority. Evidence in this trial does not give rise to a finding of unacceptable risk of harm. The paternal grandfather gave evidence in the trial.

9. On 4 February 2017, as explored at paragraphs 116 to 138 of this judgment, the mother was assaulted by Mr T.

10. The mother accepted no responsibility for her own decision making on that occasion.

11. The mother expressed the view that the father was responsible for setting Mr T up to assault her in February 2017, although in the witness box she stated that she could not be sure if it was Mr T who had hit her.

12. The mother is estranged from her mother, step-father and sister. She is resentful of the father communicating with her family despite the subject child being a welcome member of that family.

13. The mother drinks heavily at times, a bottle of wine in one evening if socialising, and uses marijuana to relax. She underestimates the impact on her capacity to meet the needs of the children when intoxicated. She smiled fondly at the memory of telling her daughter, then about three years old, to “go away [Y]” on a New Year’s Day after a night out. It was apparent she expected the child to understand her response.

14. The father is untested as a full time parent. He is however thoroughly familiar with the child and engages with him in a loving and considerate way.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

1. The subject child is almost seven, in Year 1 at school. He is described by the deputy principal of his school as a delightful child. This is a credit to the mother and to the father.

2. Until Term 4 he was thriving at school making friends. In Term 4 he missed very many days and fell behind somewhat.

3. He is guarded in the sense that he does not mention his mother and sister to the father and paternal family. He is similarly unforthcoming with the mother about the father’s family.

4. The parties agree that B is well aware that his parents dislike each other.

5. There is no real understanding in either parent of his dilemma arising from that fact.

6. Each dislikes the other so much that they cannot take in that the child has a different perspective.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

1. The only ADVO in existence in the matter is between the mother and a former partner Mr T. The mother is listed as the person in need of protection and Mr T is listed as the defendant.

2. The history of events that gave rise to the conception of the child has been explored at paragraphs 10 to 18 of this judgment.

3. It is an agreed fact that the parties met at a hotel in Sydney where the father was employed and that the mother was in the habit of drinking in that hotel most afternoons.

4. It is an agreed fact that both parties had been drinking alcohol on each of the occasions in October 2011 when they had sexual intercourse with each other.

5. The father has not been interviewed by police in respect of these allegations. Accordingly he has not been charged with any offence.

6. The father first heard that the mother was making the allegation that he had sexually assaulted her was in August 2015 when he read it in an affidavit by her. The mother says she began telling people about it in May 2015 but concedes that the father may not have known that.

7. The mother took no contemporaneous step consistent with her allegation.

8. She did not make a report to police, she did not seek medical assistance, and she did not tell any third party.

9. She travelled back to Western Australia for the birth of the child in July 2012, later returning to New South Wales.

10. By early 2013 the mother was living 800 metres from the father and providing the child for time with the father, assisted by the paternal grandparents.

11. In early 2013 the mother became pregnant to another man and alleges that that pregnancy was also the result of sexual assault.

12. The father spent time with the subject child very regularly, including two or three nights per week, because he wanted to spend time with the child but also to assist the mother during her pregnancy with Y, who was born in late 2013.

13. None of those factors alone or in combination could lead to a finding that an assault did not take place.

14. From a legal perspective there is an allegation by the mother which is denied by the father.

15. There is no corroborative evidence.

16. I do conclude that the mother believes that her successful application to the Commissioner of Victims Rights for a “Recognition Payment of $10,000” is confirmation and proof of a sexual assault on her having taken place.[130] That is not the case.

    [130] Exhibit 25 - Confidential Psychology Report by Ms MM of Ms Kelly dated 2/05/2019

17. The father is convinced that the mother fabricated the complaint in response to his application in 2015 for parenting orders. I am unable to come to any conclusion about that. It is possible.

18. A finding could not be made by this Court that the father sexually assaulted the mother.

19. Final parenting orders were made by consent in February 2016 with a Notation as follows:

    Pursuant to Rule 10.15A of the FL Rules, the parties mutually submit that allegations of child abuse, family violence neglect and the risk thereof have been made in these proceedings but both parties are now satisfied that the child is not at any risk of harm while living with the mother and spending time with the father.[131]

    [131] Family Court of Australia Order dated 19 February 2016, Notation C

20. Given those orders and the Notation there might not have been any further evidence on this topic.

21. Both parties have resiled from their joint submission in the Notation.

22. The issue of the assault was allowed to be canvassed with reference to the mother‘s evidence that the 2011 assault has affected her ability to respond to the father’s fresh application (this time for residence).

Conclusion

1. The orders provide for the child to move to live with the father.

2. Because the mother has a tendency to react to unwelcome events with a high level of anger and blame towards those she holds responsible, the child needs to be protected from that reaction. The opinion of the Family Consultant, with which I agree, is that the mother would “tell B her side of the story” unless time was supervised after the change of residence.

3. Further the transition to living with his father will create big changes for him; permanence in his father’s household, loss of full time care by his mother, loss of his younger sister. He will attend a new school and will need time to fit in and make new friends.

4. A period of 12 weeks which will include a school holiday period will allow the child to adjust to the new arrangements and feel settled.

5. The orders then provide for a period of six months of supervised time and weekly supervised telephone calls.

6. The orders are thereafter open to agreement. The father may enable time and communication if he considers it to be safe to do so.

7. The reasons for taking that approach are as follows.

8. I accept the opinion of the Family Consultant that supervised time has value when it leads to something better. That accords with the authorities on the limited value of long term supervision.

9. The recommendation of the Family Consultant was that supervision continue while the mother undertook therapeutic counselling by a suitably qualified practitioner with a copy of the family Report.

10. All indications are that the mother would benefit from taking up that recommendation. However there is no efficacy in ordering a party to undertake therapeutic work. It must be voluntary based on a genuine wish to change certain behaviour or understand aspects of self. An order would likely lead to resentful presentation and resistance.

11. The Family Consultant further went on to say if that health care practitioner recommended it, unsupervised time could commence. I do not accept that recommendation.

12. This Court is charged with making parenting orders and should not seek to impose that judicial function on a treating practitioner.

13. Further, the therapeutic relationship might not survive such a recommendation if the mother disagreed with the therapist over timing. The matter would come straight back to Court if the father disagreed with the recommendation.

14. However if the mother did seek professional help to understand why the child went to live with the father and if she authorised the therapist to speak to the father the parties could ultimately progress to unsupervised time if the father was satisfied that the child would be safe.

15. The state of the evidence or lack of it suggests that the mother is unlikely to take that course. It is much more likely that she will resist the decision and enlist all available help to defeat it.

16. Nevertheless, a period of six months of supervised time has been ordered. The mother could now choose to engage with a therapist in the way recommended by the Family Consultant.

17. There is an obvious benefit to the child maintaining a loving bond with his mother and his sister. They are his family of origin. The option to work on unsupervised time and communication has been left open rather than an order for no contact being made.

18. For that reason of family origin, and because there was insufficient evidence to establish that it is in the child’s best interests to change his surname, that order has not been made.

19. The order for an application for a passport has been made. Such a decision falls within the ambit of sole parental responsibility but the immigration formalities of one parent alone applying for a passport for a child require a specific order.

20. Orders are made accordingly.

I certify that the preceding four hundred and sixty-one (461) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 13 June 2019

Associate: 

Date:  13 June 2019