Janda and Fairburn (No 2)
[2019] FamCA 807
•6 November 2019
FAMILY COURT OF AUSTRALIA
| JANDA & FAIRBURN (NO. 2) | [2019] FamCA 807 |
| FAMILY LAW – CHILDREN – With whom a child lives – Where the mother seeks to relocate to Queensland with the child – Where the father opposes – Where the father seeks that he child live in his primary care and spend significant time with the mother – Where there are mutual allegations of family violence – Where it was historically alleged that the father perpetrated sexual abuse on the child – Where the mother asserts that she no longer presses those allegations – Where the maternal aunt lives with the mother and is actively involved in the day to day care of the child – Where the maternal aunt considers that the father sees the child as a sex toy and that the father is a paedophile – Where the maternal aunt is unable to contain her dislike of the father – Where there is a significant risk of the mother’s attitude reverting following the conclusion of the proceedings – Where it is unlikely that the mother will support the child’s relationship with the father if permitted to relocate – Where the father seeks to restrain the maternal aunt from coming into contact with the child for a period of three months – Where the Independent Children’s Lawyer supports the orders sought by the father – Where the child has a strong relationship with both parents – Orders. FAMILY LAW – CHILDREN – Parental responsibility – Presumption of equal shared parental responsibility – Where the father seeks sole parental responsibility and the mother seeks equal shared parental responsibility – Where there has been an order in place giving the parties equal shared parental responsibility – Where the father has been effectively excluded from making decisions in respect of major issues relating to the child – Where the father contends that the mother is unlikely to desist in her pursuit to have him considered as a paedophile and an unacceptable risk to the child – Where the mother has abrogated her responsibility to the child since the date of separation in her pursuit of the father – Where the father having sole parental responsibility will ensure that the child’s relationship with each of the parties is maintained but will limit the ability and scope of the mother to engage the child in unnecessary assessment arising from false allegations of sexual abuse – Orders. |
| Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 61DA, 65DAA |
| AMS v AIF (1999) 199 CLR 160 Beckham v Desprez [2015] FamCAFC 247 Blanding v Blanding [2016] FamCAFC 21 Godfrey & Sanders [2007] FamCA 102 Mazorski & Albright [2007] FamCA 520 Starr & Duggan [2009] FamCAFC 115 Zahawi & Rayne [2016] FamCAFC 90 |
| APPLICANT: | Ms Janda |
| RESPONDENT: | Mr Fairburn |
| INDEPENDENT CHILDREN’S LAWYER: | Story & Associates |
| FILE NUMBER: | DNC | 408 | of | 2014 |
| DATE DELIVERED: | 6 November 2019 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Darwin |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 14 – 20 August 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Farmer |
| SOLICITOR FOR THE APPLICANT: | Withnalls Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Livingstone |
| SOLICITOR FOR THE RESPONDENT: | Maley Barristers & Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Holtham |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Story & Associates |
Orders
That all previous parenting orders be discharged.
That the father have sole parental responsibility for X born … 2013 (“the child”) PROVIDED that the father shall use his best endeavours to reach agreement with the mother on any major issue affecting the child but if he is unable to do so THEN the father shall make the necessary decisions and advise the mother as soon as is reasonably practical thereafter.
That the child do live with the mother and the father in an equal shared care arrangement as follows:-
(a)With the father from the conclusion of school Friday (or 3.00 pm if a non-school day) until the commencement of school Friday (or 3.00 pm if a non-school day) commencing 8 November 2019 and each alternate week thereafter;
(b)With the mother from the conclusion of school Friday (or 3.00 pm if a non-school day) until the commencement of school Friday (or 3.00 pm if a non-school day) commencing 15 November 2019 and each alternate week thereafter;
(c)That during the Christmas school holiday period from the conclusion of Term 4 in 2019 and each year thereafter the child shall spend one half of the holiday period with each of the parties and in default of agreement with the mother for the first half of the Christmas school holiday period in 2019/2020 and in alternate years and for the second half of the school holiday period in 2020/2021 and in alternate years thereafter and with the father for the second half of the Christmas school holiday period in 2019/2020 and each alternate year thereafter and the first half of the Christmas school holiday period in 2020/2021 and each alternate year thereafter;
(d)Such further and other times as may be agreed between the parties.
If both parties shall be in close proximity on Christmas Day THEN the child shall spend time with each of them at the following specified times unless otherwise agreed:-
(a) The child shall spend time with the father:-
(i)From 3.00 pm Christmas Day until 3.00 pm Boxing Day in 2019 and each alternate year thereafter;
(ii)From 3.00 pm Christmas Eve until 3.00 pm Christmas Day in 2020 and each alternate year thereafter;
(b) The child shall spend time with the mother:-
(i)From 3.00 pm Christmas Eve until 3.00 pm Christmas Day in 2019 and each alternate year thereafter;
(ii)From 3.00 pm Christmas Day until 3.00 pm Boxing Day in 2020 and each alternate year thereafter.
If Mother’s Day shall fall on a day when the child is living with the father the child shall spend time with the mother from 6.00 pm on the immediately preceding Saturday until 6.00 pm on Mother’s Day.
If Father’s Day shall fall on a day when the child is living with the mother the child shall spend time with the father from 6.00 pm on the immediately preceding Saturday until 6.00 pm on Father’s Day.
The child shall spend time on her birthday with the parent with whom she is not living at that time on the following basis:-
(a)From 9.00 am until 12 noon on her birthday if the day on which her birthday falls is on the weekend or a non-school day;
(b)From the conclusion of school until 6.00 pm on her birthday if the day on which the child’s birthday falls is a school day.
That each parent shall have the right to communicate with and obtain information concerning the child’s physical, mental health and welfare from any medical practitioner, medical specialist, dentist, physiotherapist, psychologist, counsellor, social worker, speech therapist or such other person providing treatment to the child.
That if the child falls ill, the parent with whom the child is living at the time will take her to a family doctor and/or local hospital in the event of an emergency and shall advise the other party of any emergency or major illness as soon as possible.
That the mother be restrained and an injunction granted restraining her from allowing, permitting or arranging for the child to attend for any counselling or therapy or psychological treatment unless otherwise as agreed between the parties.
That as and from thirty (30) days from the date of this order the mother shall be restrained and an injunction granted restraining her from allowing Ms B Janda to come into contact with the child for a period of one hundred and twenty (120) days and thereafter any contact with the child for a period of one hundred and eighty (180) days shall only be in the presence of the mother.
.That each party be entitled to be involved in the child’s school and be permitted to obtain copies of all documents relating to the child inclusive of file notes, activities and photographs at their own cost direct from the child’s school.
With respect to the child’s schooling:-
(a)Each party shall do all acts and things that are necessary to ensure that the child’s school enrolment is maintained in the name of both the father and the mother and shall provide and maintain accurate contact details and medical emergency details as required by the child’s school;
(b)Each parent shall have the right to attend and spend time with and communicate with the child at school and other public venues for events that parents are normally invited to including but not limited to sports days, sporting events, school concerts, school plays, fundraisers, excursions, school camps and other like events and in the event of the child playing sport or participating in another activity each parent shall have the right to attend such event as a spectator, volunteer or participant.
The mother and the father shall communicate by email and face to face at handovers to exchange information relating to the care and welfare of the child and shall use the telephone in the case of an emergency.
The child shall be entitled to freely communicate at all other times by telephone, mobile phone, SMS text message and/or email with whichever parent she is not living at the time.
Each party shall advise the other as to any change in their residential address or contact telephone numbers within seven (7) days of the date of the change taking place.
That in the event that either party proposes to travel outside the Northern Territory that party shall provide seven (7) days written notice to the other party of their intention to travel, the date of departure and return and the destination and contact details for the child whilst travelling.
Both the mother and the father be restrained and an injunction granted restraining each of them from:-
(a)Discussing adult issues including disseminating information pertaining to these proceedings with or in the presence of the child or allowing any other third party to do so;
(b)Denigrating the other party to or in the presence of the child or allowing any other party to do so;
(c)Removing or attempting to remove or causing or permitting removal of the child from the Commonwealth of Australia unless otherwise agreed between the parties.
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 Janda & Fairburn 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 |
FILE NUMBER: DNC 408 of 2014
| Ms Janda |
Applicant
And
| Mr Fairburn |
Respondent
REASONS FOR JUDGMENT
Introduction
The proceedings between Ms Janda (“the mother”) and Mr Fairburn (“the father”) relate to the future parenting arrangements for X born in 2013 (“the child”).
The proceedings were listed for trial on 14 August 2019 and judgment was reserved on 20 August 2019.
At the conclusion of the proceedings the parties sought separate interim orders.
On 21 May 2015 the parties entered into a consent order which provided that they have equal shared parental responsibility for the child, that the child live with the mother and spend gradually increasing time with the father.
On 12 June 2018 an order was made suspending the father’s time with the child and for the appointment of an Independent Children’s Lawyer (“ICL”).
The reason for suspension was founded on the mother’s allegation that the father was the perpetrator of sexual, emotional and psychological abuse of the child. A Notice of Risk was filed on 6 June 2018 and further particulars in support of the suspension appear at [3] of the mother’s Affidavit filed 6 June 2018:-
I have been in a DV extremely violent relationship with this man for the whole time I have been made to stay here and now is starting on his daughter. Please help me keep us both safe for good legally from this man. A innocent childs life is in your hands. Can we please get protection for my daughter who is under 5 who has gone through so much already.[1]
[1] Errors in original.
The father’s time was reinstated on 31 August 2018 conditional upon supervision by the paternal grandfather.
The basis for reinstatement of the father’s time but with the imposition of a condition of supervision was the subject of judicial comment but in summary Judge Young found that “there was no evidence or indication of sexual abuse of the child by the father”.[2] While the Independent Children’s Lawyer (“ICL”) supported reinstatement, she promoted supervision because “in the interim, it was in the child’s interests, to protect against baseless allegations…”.[3]
[2]Fairburn & Janda [2018] FCCA 2692 [10].
[3]Fairburn & Janda [2018] FCCA 2692 [11].
Whilst the parties had put in place an informal arrangement which dispensed with the need for supervision, given my finding that the relationship between the parties was one of high conflict, I considered that the child’s interests would be best served by orders that provided certainty as to the interim parenting arrangements pending delivery of final judgment.
Accordingly, the interim orders made 23 August 2019 provide for the child to live with the mother and spend time with the father each alternate weekend from Saturday to Sunday and each intervening weekend from the conclusion of school on Friday to the commencement of school on Monday.
The father’s time with the child during school terms was suspended during the September/October school holidays, with the child spending time with the father from 27 September 2019 to 3 October 2019.
All handovers that do not occur at the child’s school are to occur at L Group or such other public place as the parties may agree.
For reasons that will be the subject of detailed discussion an order was made restraining the mother from :-
(c)allowing or permitting Ms B Janda to attend at the child’s school or any other place of handover on any occasion that the father is present pursuant to these orders.
By Amended Initiating Application filed 18 July 2018 the mother seeks the following orders:-
(1)That the orders dated 21 May 2015 be discharged.
(2)That the mother have sole parental responsibility for the child.
(3)The child be permitted to relocate with the mother to Brisbane, Queensland.
(4)The child live with the mother.
(5)The child’s time spent and communication with the father be further particularised after the release of the family report.
At the commencement of the hearing the mother’s counsel tendered an Outline of Case document which significantly altered and expanded upon the orders sought by the mother in the Amended Initiating Application.
The mother’s position at trial is summarised as follows:-
·That all previous orders be discharged.
·That the parties have equal shared parental responsibility for the child.
·Pending the child’s relocation the child spend time with the father:-
oeach Thursday from 2.30 pm to 4.30 pm;
oFrom Friday 27 September 2019 to Sunday 29 September 2019 and from 12 October 2019 to 14 October 2019;
oFrom 9.00 am Saturday to the commencement of school on the following Monday and each alternate weekend thereafter;
oFor two days in week 1 and three days in week 5 of the Christmas school holidays.
·That from Term 1 in 2020 the child will spend time with the father for one half of all school holidays and additional time should the father travel to Brisbane.
The father’s position at trial is summarised as follows:-
·That all previous orders be discharged.
·That he have sole parental responsibility for the child.
·That for a period of three months the child live with the father and spend no time with the mother.
·That the mother complete a counselling course or program to enable her to better interact with the father, support his relationship with the child and to manage her emotional presentation.
·That the mother be restrained from bringing the child into contact with Ms B Janda (“the maternal aunt”) for a period of six months from the date of final order.
·That the child’s time with the mother gradually increase to each alternate weekend from 9.00 am Saturday until 5.00 pm Sunday and one half of each school holiday period.
At the commencement of the hearing the ICL considered that the parties should have equal shared parental responsibility with the child to live with the mother and spend significant and substantial time with the father from after school Thursday to the commencement of school on the following Monday in each alternate week and from after school Thursday to the commencement of school on Friday in each intervening week.
School holidays were to be shared equally.
The position of the ICL altered after the close of evidence and in her final submissions the ICL now supported the father’s proposal, but if the Court was not persuaded to change the child’s primary care to the father then the parties should have equal shared parental responsibility and the child should spend equal time with each of them.
The ICL also sought an injunction restraining the mother from allowing the child to spend any time with the maternal aunt for a period of 12 months.
Chronology
1975 Date of birth of mother
1979 Date of birth of father
2010 Parties commence relationship and cohabitation in Darwin
Aug 2012 Parties purchase property together.
2010-2013Parties continue their cohabitation with the maternal aunt living in the parties’ home
2013Date of birth of child
Aug 2014Parties separate and father returns to his mother’s home in Suburb D
21/5/2015Final orders are made by consent resolving parenting issues but with a provision that the parties would attend family dispute resolution to consider the mother’s proposal to relocate the child to Queensland and the extent to which the child’s time with the father should increase
14/9/2015Consent orders are made regarding property settlement
19/3/2017Mother alleges father displays sexually inappropriate conduct. Following an argument between the parties the father is charged with aggravated assault. The charge is ultimately withdrawn
21/7/2017Father consents to a family violence order for the protection of the mother for a period of 12 months
20/9/2017Parties enter into a parenting plan with the child to spend time with the father as follows:-
·For two hours each weekday between 9.00 am and 11.00 an or 4.00 pm to 6.00 pm;
·Each Saturday from 9.00 am to 1.00 pm; and
·Each Sunday from 1.00 pm to 5.00 pm
22/4/2018Mother alleges that the father punched a puppy in the eye and seeks to suspend the father’s time with the child. The mother obtains a variation of the family violence order
31/5/2018Mother alleges that the father has sexually abused the child and his time is suspended
4/6/2018Consequent upon the mother’s application on 1 June 2018 an interim family violence order is put in place against the father
6/6/2018Mother files an urgent application seeking that all time that the child spends with the father be suspended and that she be permitted to relocate the residence of the child to Brisbane
12/6/2018Father’s time with the child is suspended
22/6/2018Police report issued to NT Families that the allegations of sexual abuse by the father were without foundation and no further investigation was to be pursued
3/7/2018NT Families determine that the child is at risk of emotional harm by the conduct of the mother and the maternal aunt and assess that the risk of harm was likely to continue
30/8/2018Mother makes further report to police that the father makes the child touch her genitals inappropriately
24/10/2018Mother reports to police that the father told the child to put her finger in her bottom
19/11/2018Mother alleges that she and her family have been threatened by the father
22/11/2018Mother accepts that she should stop reporting allegations and agrees to accept a referral to Intensive Family Preservation Service
21/3/2019Report by the child’s day-care centre of further allegations of sexual abuse by the father
10/7/2019Parties agree that the father’s time will be unsupervised
10/8/2019Father spends time with the child on one overnight each fortnight and for two hours each Tuesday after school.
Background
The mother was born in Brisbane. Her parents and other members of her family remain in Brisbane.
Following the completion of her studies she obtained degrees in human resources and education. In 2004 she obtained employment in Darwin and in 2016 commenced her current employment.
The father was born in Town C and soon thereafter he moved with his family to Suburb D. Following the completion of the father’s study he graduated with a diploma and commenced work at the same workplace as the mother.
Following a short relationship the parties commenced cohabitation initially at the Suburb D property but then in their own home in Suburb E.
The parties’ relationship was volatile. Each allege that the other presented aggressively. The father engaged in ongoing counselling. The mother alleges that it was to assist him with his depression and the sequelae of his abuse by his father when he was a child. The father denies that the focus of his counselling was aggression but contends that it was to assist him to better manage the mother’s erratic and aggressive behaviour.
A curious aspect to the relationship is the involvement of the maternal aunt. The father states that she remained in the parties’ household for the entirety of the relationship. Whilst the father is mistrustful of the mother, he considers that the involvement of the maternal aunt has been detrimental to the ability of the parties to resolve or at least narrow their differences.
He considers that the maternal aunt exhibits controlling and coercive conduct with respect to the mother and that she is in the maternal aunt’s thrall.
The history of the parties’ relationship is replete with numerous allegations of sexual abuse and inappropriate conduct by the father towards the child. The father denies the allegations. He considers that they are false and are based on deliberate fabrication, maliciously pursued by the mother and the maternal aunt.
Documents relied upon
The mother relies upon the following documents:-
·Mother’s Trial Affidavit filed 29 March 2019
·Mother’s Financial Statement filed 29 March 2019
·Affidavit of Ms B Janda filed 29 March 2019
·Affidavit of Ms F filed 29 March 2019
·Affidavit of Ms Janda filed 28 June 2019
The father relies upon the following documents:-
·Response filed 14 June 2019
·Father’s Trial Affidavit filed 14 June 2019
·Affidavit of Mr G Fairburn filed 14 June 2019
Evidence
At the commencement of the trial the Court highlighted the provisions of div 12A of the Family Law Act 1975 (Cth) (“the Act”) and in particular whether the Court should dispense with the provisions of s 69ZT and apply the excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”).
Neither party nor the ICL spoke against the application of the provisions of s 69ZT.
I considered that the principles of s 69ZN would be better served by receiving the evidence that each of the parties relied upon, but exercising my discretion under s 69ZT(3) as to the weight which should be given to the evidence, particularly if it is contentious.
Consideration was given to objections to affidavits of evidence by the application of r 15.13 of the Family Law Rules and s 135 of the Evidence Act.
The mother
On 6 July 2018 the mother filed a Notice of Risk alleging that the father was a risk to the child by reason of sexual, emotional, mental and psychological abuse.
The mother asserted that the relationship with the father was delineated by the father’s aggressive conduct. Whilst there was no physical family violence during the relationship, the mother contends that the level of aggressive behaviour by the father increased from late in the relationship and continued post-separation.
The mother’s allegations include threats by the father to kill the family pet fish and rabbits and in February 2016 the mother alleges that the father deliberately broke three of the child’s dolls by removing their heads, arms and legs.
The mother installed security lights and surveillance cameras arising out of her fear of the purportedly unpredictable and aggressive behaviour of the father.
The mother contends that the father’s behaviour continued to be both bizarre and troublesome. In 2016 the mother says that the father broke the child’s rabbit cage and deliberately allowed the rabbits to escape. He later broke the irrigation system in the garden at the former matrimonial home. Following an argument the mother reported the father to the police alleging that he had deliberately reversed his car causing the mother to be pinned between the motor vehicle and a gate. It is alleged that the father also threw a television at the mother.
The mother’s concerns were apparently heightened by her observations that the child began to exhibit adverse behaviour such that:-
a)She became destructive and would destroy her toy dolls by ripping their heads and legs off;
b)She would cry for no reason making herself so upset that she would hyperventilate and vomit; and
c)Screaming and asking [the mother]: “is the door locked?”.[4]
[4] Mother’s affidavit filed 18 July 2018 [44].
These observations of the mother purportedly occurred shortly after a report to her from the child’s gymnastics coach that referred to the child alleging that the father and a nanny took the child into a room at her school and allegedly locked the door, turned the light off and would not let the child leave.
Allegations were also made that the father used offensive and vindictive language directed to the mother and her family in the following terms:-
“[The maternal aunt] is the devil, a troll, a witch, a bitch, or a whore”.
And [the mother] is -
“a fruit loop, a mental case, an old smelly cow or a spastic”.[5]
[5] Mother’s affidavit filed 18 July 2018 [45].
The affidavit refers to a number of matters being the subject of police investigation, in particular an allegation that on 9 April 2018 the father punched the child’s puppy in the eye and notwithstanding her concession that the child told the police it was an accident, the mother reports that in a later conversation the child told her that:-
I am scared of the Police and I am scared of Dad and that is why I said it was an accident.[6]
[6] Mother’s affidavit filed 18 July 2018 [46(c)].
The mother sets out in detail the allegations of sexual abuse by the father.
She reports that on 28 May 2018 the child told her that “I need another puppy to protect me from my Daddy” and “I miss my puppy, he growled at my Daddy” and “puppy kept me safe”.[7]
[7] Mother’s affidavit filed 18 July 2018 [63].
A significant allegation is that the child told the mother that “Daddy makes me put my finger in my bottom”.[8] Upon a genital examination of the child, the mother could see that the child’s vagina was “bright red and swollen”.[9]
[8] Mother’s affidavit filed 18 July 2018 [65].
[9] Mother’s affidavit filed 18 July 2018 [66].
The mother also refers to the child resuming breastfeeding which she considers is an indication that the child craves comfort.
The mother took the child to a medical practitioner where it is reported that the child said “my Daddy makes me put my finger up my vagina”.[10]
[10] Mother’s affidavit filed 18 July 2018 [70].
As a result, the child was taken to the Royal Darwin Hospital and following an interview the child was referred to the Sexual Assault Referral Centre where the child was interviewed.
The mother reports that the child had been having nightmares and emotional outbursts.
The mother records that during a painting and drawing session on 1 June 2018 the child alleged that:-
“sometimes it is for hours … sometimes it’s in the car and sometimes he makes me do it for hours while he plays with himself” and “Dad puts his hands down his pants while watching me”.[11]
[11] Mother’s affidavit filed 18 July 2018 [78].
On 2 June 2018 the mother reports that the child allegedly woke from a nightmare and said:-
(a)“Daddy does it in the car sometimes”;
(b)“Daddy does not touch me, he makes me do it”; and
(c)“I am bored of Daddy and you are my Mummy and your job is to protect me, isn’t it Mummy?”.[12]
[12] Mother’s affidavit filed 18 July 2018 [81].
On 21 June 2018 the mother was advised by the police that the investigation was not to proceed further. She attributes the following explanation to the police officer:-
“whilst we have huge concerns, there was not enough information to progress the allegations made against [the father]… if more evidence becomes available now or when she is older, we can look at pressing charges”.[13]
[13] Mother’s affidavit filed 18 July 2018 [87].
The mother further alleged that in March 2017 she observed the father and the child sitting on the floor playing dinosaurs. The child had the mother’s knickers on her head and the father was in shorts. The mother alleges that the child then smelt her knickers and the father said “look mummy, we are sniffing your knickers”.[14]
[14] Mother’s affidavit filed 18 July 2018 [92].
An argument then ensued and the mother alleges that she stood a few meters behind the father’s car who then reversed into her pinning her against the gate.
The allegations were repeated in the mother’s Trial Affidavit filed 29 March 2019. The allegations of sexual abuse perpetrated by the father are supplemented by the mother’s contention that the child suffers from incontinence whilst at school and that they occur after the child has spent time with the father. On 2 March 2019 the mother overheard the child tell her friends that “Daddy hurts me”.[15] On 5 March 2019 the child reported that the paternal grandfather said to her:-
“I need a bigger hammer to hammer this nail through your head”. And “Mum, Daddy always wins”.[16]
[15] Mother’s affidavit filed 29 March 2019 [98(g)].
[16] Mother’s affidavit filed 29 March 2019 [98(h)].
Further notifications were made to Territory Families.
The mother repeats the allegations of family violence and attributes injuries and resultant disability to the father reversing his car into her.
In answer to the father’s trial affidavit, the mother concedes that her relationship with the father was dysfunctional, often marred by heated verbal arguments. The mother concedes that she has referred to the father as an “idiot”, “dickhead” and “useless”. She denies referring to him as a “fuckwit”.[17] The mother does not repeat the allegations of sexual abuse.
[17] Mother’s affidavit filed 28 June 2019 [3].
The father’s counsel put to the mother that she was aware of an allegation made by the maternal aunt to a police officer that in her opinion the father was a paedophile. The mother did not immediately acknowledge that her sister had made such an allegation but conceded that there was a police report confirming that the maternal aunt had been the subject of interview attached to the father’s affidavit.
The mother was asked to reflect upon the wisdom of the maternal aunt spending significant time with the child in circumstances where her view of the father was that it was unequivocal that he presented as an unacceptable risk to the child.
The mother conceded that the maternal aunt was an influential person in the child’s life. The nature of the maternal aunt’s allegation was that:-
The child was two years old when her suspicions were confirmed that the father was a paedophile, because all [the maternal aunt’s] friends were saying he was.[18]
[18] Transcript of proceedings 14 August 2019 line 30 page 8.
The maternal aunt observed the child to eat a carrot in a “sexual way”.
The maternal aunt had also opined that the purchase of a washing machine and a hot water system by the father was to “conceal evidence of his spoof”. This was an allegation conveyed to Territory Families.
The mother agreed that the word “spoof” was synonymous with semen. She was not concerned that the child may well be exposed to the unrelenting view of the maternal aunt that the father was devious in his attempts to cover the tracks of his sexual abuse.
The maternal aunt also asserted to Territory Families that the child was an IVF baby and that the father sees the child “as an investment and he wants her as a sex toy”.
The mother did not agree that this was the father’s true intention and whilst fully cognisant of the position adopted by the maternal aunt, she did not consider that the beliefs were bizarre or that the maternal aunt presented as a risk to the child.
The mother conceded that the maternal aunt held a strong belief for some considerable period of time that the father regarded the child as a “sex toy”.
The mother considered that the maternal aunt had a lot to offer the child and could not see any negative issues or downside to the maternal aunt having close and influential interaction with the child.
The maternal aunt is alleged to have “seen signs and symptoms and abuse since the child was eight months old. She even had cameras placed in the house so she could watch when the father came to visit with the child”. This assertion was made to Territory Families.
The mother sought to distance herself from the maternal aunt. When asked whether she conceded that the cameras had been put in place by her sister in order to keep watch over the father during his time with the child, the mother’s response is indicative of her mindset:-
Counsel: Now either that’s true or it’s not true.
Mother: I have cameras in my house for my own purposes. What she chooses to use them for when I’m not there – I know what I use the cameras for.[19]
[19] Transcript of proceedings 14 August 2019 line 44 page 13.
The mother was aware of the notification made by the maternal aunt to Territory Families that “the father had been emotionally, mentally, financially, physically abusive towards everyone in the household”. The mother agreed that it was true. She considered that the father had been physically abusive to her many times and she believed the child when she told the mother that the father had been physically abusive towards her:-[20]
Counsel:And do you see any detriment in your child having contact with somebody who thinks that the father, in fact, only sees his child as an investment and wants her as a sex toy?
Mother:I can see where you’re coming from and your concerns for the father’s point of view; however, I will state it again. My sister does not put any of your viewpoints about the father onto the child and the child is a happy, well-adjusted child in our care.
Counsel:Because immediately above that paragraph that I’ve just read to you, she said this to the Department of Family and Community Services in the Northern Territory – Department of Families, I’m sorry:-
She claims to have only told a few people about what is going –
[20] Transcript of proceedings 14 August 2019 line 25 page 17.
And I will suggest it was going to say “going on” –
and has asked them to pray for my little girl.
Mother: As Christians, people do ask them to pray for their little girls.
Counsel:Have you asked your sister who were the few people that she shared her concerns with?
Mother:No, because I ask everyone to pray for my little girl at my church. I am a Christian.
Counsel:But this seems to be that she has told these people something about her concerns that the child has been sexually abused?
Mother:Are we talking about last year when the sexual allegations came forward?
The mother’s proposal is that if permitted to relocate the child to Brisbane then she proposed that the child spend half of each school holidays with the father.
It was put to the mother that if she genuinely believed that the father presented as a significant risk to the child then it would be an anathema for the mother to consider the child spending unsupervised time with the father.
When pressed, the mother conceded that the maternal aunt’s view of the father did not now accord with her current view.
The mother accepted that the view of the maternal aunt expressed to Territory Families was wrong and was asked to consider whether the aunt should continue to have “unfettered access” to the child. The proposition was put on the basis that the maternal aunt had formed a concluded view that the father presented as an unacceptable risk to the child and his opportunity to spend time with the child should be limited and conditional upon supervision.
The mother conceded that the child has a close relationship with the father and identifies very strongly with him. She agreed that the father cherishes his relationship with the child and is therefore very much loved by him.
The focus of counsel’s questions was to explore whether the mother genuinely holds a position that the father does not represent a risk to the child and that the allegations are without substance.
The mother conceded that her sister had told her that she had repeated allegations to other people at her church. The mother considered that the maternal aunt had reflected on these matters and had been to counselling to help her deal with her mistaken belief. The mother considered that the maternal aunt no longer believed the allegations about the father.
The mother was questioned as to whether either she or the maternal aunt had approached Territory Families or other persons that had been previously made aware of the allegations that they were now untrue. She agreed that the report from Territory Families contained an accurate recording of the allegations made by the maternal aunt as demonstrated by the following exchange:-[21]
[21] Transcript of proceedings 14 August 2019 line 5 page 20.
Counsel:And they seem to have got quite a few facts quite accurately recorded there, don’t they?
Mother: Yes.
Counsel:Yes. For example, that she’s an IVF baby, for example, that the aunt had come in, for example, that the father had bought a washing machine and hot water system. They seem to have got a few things about your family spot-on correct, don’t they?
Mother: Yes.
Counsel:And it seems as though your sister has been peddling misinformation around about the father including that he’s a paedophile or agreeing with other people who have shared this concern?
Mother: Okay.
Counsel:Yes. Now, did you think that it might be appropriate for you to go sit down with your sister and say, “Look, having made these terrible allegations about my ex, [the child’s] father, I would like you to go back to those people and just clarify the situation?
Mother: Okay.
The mother agreed that while she had not been specifically abusive towards the father, she had said a number of vile and disgusting things about him. She attempted to counter the allegation by her complaint that her conduct was reciprocated by the father.
The mother was asked to the extent to which the child had been counselled and engaged in therapy arising from the allegations of sexual abuse. The mother conceded that the child had undertaken play therapy and had been subjected to medical examinations to explore whether she had been sexually assaulted. Whilst she did not agree that the medical examinations were intrusive, she did not resile from the proposition that the child had been asked to pull down her pants and expose her genital area to examination.
Counsel explored the mother’s level of insight as to the potential adverse impact on the child of the false allegations, the negative view of the father in the mother’s household and the child undergoing therapeutic intervention to deal with the sequelae of allegations of sexual abuse that were untrue. The mother considered the child’s current presentation as “extremely well-adjusted” and whilst she did not disagree with the following proposition of counsel she attempted to explain how the child had been shielded from the conflict:-[22]
Counsel:And you think that all of these things that have gone on for her life and all of the toxic relationships that have gone on around her between people who should be getting on and seeking the best for her including you, the father, the aunt and your mother, you don’t think that that has had any impact on your daughter at all?
Mother:I’ve been very proactive as a mother to make sure my child is a happy well-adjusted child, things like play therapy, music therapy, things that would help my child with the disagreements in co-dynamics of co-parenting.
[22] Transcript of proceedings 14 August 2019 line 37 page 23.
The mother did not have any regrets arising from the vigour in which she pursued allegations of sexual abuse against the father that were demonstrably without substance. The father’s time with the child was limited and had been under strict supervision. The mother had complained that on one occasion the child was at risk because the father had taken the child into a church either without supervision of the paternal grandfather or at least any attempt to stop the father.
The mother considered that she had acted in a manner consistent with a concerned parent and that her belief as to the veracity of the allegations is now different. She opined that it was likely she would act differently if confronted with further allegations.
The child attended 13 play therapy sessions commencing on 24 April 2018. The mother was reminded that on one occasion she contacted the play therapist to advise that the child had made a recent allegation of sexual abuse.
The mother took some time in remembering the circumstances of the report and it was put to her that she wanted the play therapist to write a report as to the alleged disclosure and that the mother would pay for it. The mother’s initial response was to deny that she had put forward such a proposition, but then when advised that the proposal to pay for the report had been noted by the play therapist she agreed that she may have said something similar. She remembered that the cost of the report was about $2,000.
The following proposition was put to the mother:-[23]
Counsel:So your version of events is this, that you called them up, you said that [the child] had made a disclosure of sexual abuse. You asked them if they could make a report, said that you would pay for it and asked how much it would cost, and they replied it will cost about $2000, so you decided not to press the report?
Mother: Yes.
Counsel:Because what the play therapist said she said to you was this, that she sought to calm you down and advised that we do not do that, that we would have to have the disclosure come from [the child] herself, and at this point she had not done this. But, of course, if there was a disclosure we would follow this up with a mandatory report. Now, if that has been recorded, that would be right, wouldn’t it?
Mother: Okay.
[23] Transcript of proceedings 14 August 2019 line 22 page 34.
The mother agreed that the focus of the play therapy had its core focus of the allegations that the father had sexually abused the child.
The mother was again asked to consider the extent to which the maternal aunt had involved herself in the play therapy sessions. The mother’s initial response was that her sister had provided transport only. A note made by the therapist that the maternal aunt had a significant involvement in the therapy sessions to the extent that the therapist considered that she “presents as a dominant figure in both [the mother] and [the child’s] lives”. The mother conceded that her sister’s involvement extended beyond mere transport.
It appears that the play therapist was concerned as to the involvement of the maternal aunt. At first, the mother denied that adults had been involved. However, the following exchange would suggest otherwise:-[24]
[24] Transcript of proceedings 14 August 2019 line 33 page 40.
Counsel: So if the therapist has recorded this:
[The maternal aunt] has at times demanded [the child] tell the writer and the therapist what her bad dad does to her –
the therapist would have that completely wrong, wouldn’t they?
Mother: I have no idea.
Counsel: Well, hang on? …
Mother: All right.
Counsel:Your evidence was no adults involved. The child would go into a room. Now, if the therapist has recorded that [the child] was asked to tell the writer – tell the therapist what her bad dad does to her, could that have happened?
Mother:Maybe with drop-off and pick-up, because the therapists say hello to you at the door, then you have a waiting room, then they go into – with the therapist and they come back out. So if that did occur, it would have happened between [the child] saying hello, being given to the person – and then dropped back to us.
With a high level of reluctance, the mother conceded that the therapist and report writer had told the maternal aunt “about the inappropriateness of what she was doing” and that it makes it “hard for staff and myself to remain impartial”. Further, “it is not in [the child’s] best interests”.
The inevitable conclusion was ultimately the subject of agreement by the mother:-[25]
Counsel:…and around your daughter and trying to make your daughter make disclosures and having to be counselled by the play therapist, who’s there to help your daughter, and it then turns out that your sister is the one getting the counselling and being told about the inappropriateness of what she’s doing – that is a very serious situation, isn’t it?
Mother: Okay.
[25] Transcript of proceedings 14 August 2019 line 43 page 42.
The mother agreed with counsel’s submission that the maternal aunt held ridiculous, malicious and vicious thoughts about the father, but disagreed that her close involvement with the child was problematic. The mother has observed the child as both resilient and well adjusted. There appears to be no difficulty with the child’s interaction with the father.
The mother was challenged as to her belief that the father had attempted to run her over by reversing into the mother. The charges were withdrawn on the mother’s application, however, she explains her reluctance to proceed on her need to attend her ailing father. Accordingly, she represented that it was an accident so she could spend time with her father.
The mother had alleged that between September 2017 and May 2018 the child was returned from the father’s care with the genital area of the child’s onesie ripped. It was put to the mother that the only reason that she raised the assertion was to highlight what she considered was the father’s undesirable interest in the child’s vaginal area. The mother denied counsel’s proposition and explained that it was included in the Notice of Risk because it was a frequent observation.
When pressed, the mother agreed that she considered it evidence of sexual abuse. The Notice of Risk was supported by the mother’s Affidavit in which she confirmed that she had made a report to Territory Families. The mother believed that the father was capable of having a sexual interest in the child.
On 30 May 2018 the mother took the child to a general practitioner and gave a history of the child returning to her care with apparent damage to the genital area of the child’s clothing which then resulted in a transfer to hospital. The child underwent a genital examination.
The mother agreed that at the time she was concerned that she had been sexually abused by the father.
The gravamen of the mother’s evidence is that the allegation of sexual abuse is now something that the mother no longer believes.
I then had the following exchange with the mother:-[26]
[26] Transcript of proceedings 15 August 2019 line 18 page 26.
His Honour: What would you then say [the mother], would be how you now rationalise what your daughter purportedly said to you about this stuff? Because it is not just – this wasn’t just you taking…
Mother: Yes, I see.
His Honour: the child to the doctor?
Mother: Yes.
His Honour: because you observed some redness around the child’s vaginal area?
Mother: Yes.
His Honour: This is because the child came to you and said, “Daddy makes me put my finger in my bottom.” So that’s a conversation you had with the child?
Mother: Yes, that’s correct.
His Honour: Nothing to do with your sister?
Mother: Yes.
His Honour: You then checked?
Mother: Yes.
His Honour: There was then behaviour that worried you because the child then came to bed with you that night and started suckling on your breast?
Mother: I know, yes.
His Honour: Yes. And then you took the child to the doctor the next morning and you record that [the child] said to the doctor the following, “My daddy makes me put my finger up my vagina”?
Mother: That’s correct, your Honour.
His Honour: These are things your daughter is actually saying. So it’s not a matter of you not being sure which way the wind is blowing?
Mother: Yes. In this particular instance, yes, your Honour.
His Honour: Right. So there’s something that you record?
Mother: Yes.
His Honour: Now, either that was actually said….?
Mother: Yes, it was.
His Honour: …and if it wasn’t said [counsel] is giving you an opportunity to now say perhaps that wasn’t said?
Mother: No, it was said.
His Honour: If it was said then there’s not too many alternate conclusions, is there? Either it actually happened, in which case it’s sexual abuse, or for some reason your daughter is manifesting this stuff for no good reason which is exactly the issue that [counsel] is questioning you about. Do you now see it? Right?
Mother: Yes, it did happen.
His Honour: So if the position is – I mean, you may genuinely believe that the father did make your daughter put her finger up her vagina, I don’t know, but that’s what [counsel] is asking you about and he is, with respect, a lot more direct than just simply you noticed some redness around your daughter’s vaginal area and you thought you would take her to the doctor and it all unfolded. That wasn’t the complete context in which it occurred?
Mother: Okay.
His Honour: It was your daughter saying things to you?
Mother: And I had someone…
His Honour: …and to the doctor?
Mother: And I went and got professional help, correct.
His Honour: And so now there’s an issue that [counsel] is asking you about as to if you now accept that none of this stuff happened, then the difficulty is to understand why your daughter would be saying these things if there is no substance to them. It’s not what children say?
Mother: Yes, I hear what you’re saying.
His Honour: Do you understand?
Mother: Yes, I hear what you say.
His Honour: But if we accept that it didn’t happen, that there is no substance behind it, that your daughter is not at risk, then the inquiry goes to, well, how is it that she would be saying these things?
Mother: At the time I did believe it happened and at the time I acted as any concerned mother would not act with a child telling her that…
His Honour: Yes, I am not suggesting you didn’t. The issue is if we now accept, as you apparently do…?
Mother: What I would do now?
His Honour: ….that it didn’t happen, that there was no substance behind it, we’ve still got your daughter saying it?
Mother:And at the time I did believe it. What happened then I actually 100 per cent believed twice in the last year.
His Honour: I think the question is why your daughter would have said it?
Mother:But I – I know that I believed as a mother that it did happen and that’s why I did what I did.
The tension in the mother’s evidence is self-evident from her proposal that the child should spend extended periods with the father in Darwin during school holidays in circumstances where in 2018 the mother considered that he was capable of instructing the child to put her finger into her vagina.
She agreed that she was still worried about what her daughter had said but believed that the father would not do that now, or at least hoped that he wouldn’t.
The mother was not able to explain why the child had allegedly made allegations that implicated the father in serious sexual abuse if there was never any substance to the allegations.
The mother agreed that she had only skim-read the majority of the reports and other materials which contained references to her allegations that the father had sexually abused the child, was a paedophile and as a result presented as an unacceptable risk.
Counsel put to the mother that at all material times she knew the allegations to be false but that they were a deliberate fabrication as part of her strategy to relocate the child from Darwin to Brisbane. If the father was considered an unacceptable risk then the mother would have had little difficulty in obtaining orders that would allow for the proposed relocation.
The mother was directly challenged by counsel to concede that her conduct should be considered as systematic child abuse. The mother rejected counsel’s proposition.
At the commencement of the proceedings the mother formally amended her trial affidavit to reflect that the child’s initial allegation was the father had caused her to put her finger into her vagina as opposed to her bottom.
The initial affidavit filed by the mother referred to the child’s bottom. However, she conceded that the notes taken by the general practitioner contained the following history:-[27]
When mother asked the child to tell her about what she said to mother at home, patient said her father asked her to touch the vagina but he has not done anything.
[27] Transcript of proceedings 15 August 2019 line 44 page 40.
The mother agreed that there was some uncertainty in respect of the initial allegation. It may have arisen from the maternal aunt bathing the child and observing vaginal irritation or redness, the mother viewing the child’s genitals and then the child being pressed as to a possible explanation that might involve the father.
The mother was not an impressive witness. She did not dispel counsel’s assertion that she had fabricated allegations of sexual abuse as part of a strategy to assist in her and the child’s relocation to Brisbane.
The mother’s support for the child’s relationship with the father was a button pressed faintly. The mother’s evidence in preparation for the proceedings was directed to the Court finding that the father had either sexually abused the child or in the alternative, that the father presented as an unacceptable risk.
The mother was not able to assist the Court in explaining allegations purportedly made by the child implicating the father in sexual abuse and the mother’s own observations of the child’s clothing being torn away in the child’s genital region, with her current position being that there was not now and had never been any substantiation to the allegations.
Ms B Janda
The maternal aunt relied upon her Affidavit filed 29 March 2019.
The maternal aunt agreed that she would take the child to school most days but did not accept that she was in the habit of remaining at the school and interfering with the classroom activities.
The topic arose because of an alleged report to Territory Families by the child’s school principal that the maternal aunt had interfered in classroom activities and had engaged with other students’ issues and behaviours.
The allegation that the father had assisted in the conception and birth of the child so that he could use her as a sex toy emanated from the maternal aunt. She agreed that she had made that allegation but attempted to put it into context by repeating something that she attributed to the father namely, that he considered the child was the best investment he had ever made. The maternal aunt took offence at the father’s statement and in her mind posed the following question:-
Yeah. What for? A sex toy.[28]
[28] Transcript of proceedings 15 August 2019 line 42 page 103.
The maternal aunt considered that the issue was a joke. However, when challenged, resiled from that proposition.
The maternal aunt did concede that she had alleged to Territory Families that she considered the purchase of a washing machine and hot water system by the father was to assist him “conceal evidence of his spoof”.
The explanation for the preposterous remark was that the child had been saying to the mother and the maternal aunt that the father was making the child masturbate while he was watching her.
The maternal aunt was asked to consider the possibility that the father was buying a washing machine to enable clothes to be cleaned. Her response was emphatic. She remained convinced that the purchase of a washing machine and a hot water system had nothing to do with the utility of washing clothes, but was linked to concealing evidence of semen.
The maternal aunt linked the purchase of the washing machine with the child returning from the father’s home with torn clothes in the vaginal area. There was no doubt in the maternal aunt’s mind that a situation of risk and abuse was ongoing.
She repeated the allegations to both Territory Families and the police.
She considered that strange and peculiar things kept happening to the child whilst in his care, which at the time was consistent with her belief that he had purchased a washing machine to clean his clothes of semen because he was becoming sexually aroused by his daughter touching herself and then ejaculating.
It was put to the maternal aunt that she had told Territory Families that she considered the father to be a paedophile. Her first response was to deny that she had used that expression, but then when directed to a November 2017 Child Protection Assessment Report she conceded that she had said it out of anger.
The maternal aunt and the mother had made a litany of allegations to Territory Families that the maternal aunt considered was consistent with their belief that the father had sexually abused the child. The maternal aunt reported that she and the mother had to deprogram the child so that she would sit with her legs together.
The maternal aunt was asked to explain the concept of “deprogramming” and provided the following explanation:-[29]
[29] Transcript of proceedings 15 August 2019 line 45 page 110.
Counsel: Yes. And I want to understand what “deprogramming is?”
Maternal Aunt: Well, when a child has been assaulted sexually, there are certain behaviours that they exhibit.
Counsel: Right?
Maternal Aunt: And perhaps she was exhibiting that behaviour because her father at the time was teaching her to sit apart to, you know, rub herself in the car seat. So she would occasionally open her legs and…
His Honour: What do you mean, “rub herself”?
Maternal Aunt: Masturbate. At the time – we’re talking about that context at that time, your Honour.
His Honour: Well it doesn’t matter. Your evidence is that that’s what happened?
Maternal Aunt: Yes.
Counsel: And you think that that is behaviour that the father has encouraged her to participate in?
Maternal Aunt: At that time, when she came – when the child came out and opened to me and said, “Auntie, my dad is making me play with myself.” And I said, “Where, darling? What games is he making you play?” And she said, “This is what he’s making me do, in the parks, in the swings.” This is all written in the reports, your Honour. It is written in the affidavit to the police – the statement to the police, and it is also written – it’s written in lots of authorities’ notes and things.
Counsel: And so her complaint is for extended periods of time, hour after hour, down in the public parks, her complaint is to you that the father is making her touch herself?
Maternal Aunt: Correct.
The maternal aunt considered that she was now better able to place these allegations into perspective given that she has spoken to a number of professional people. She has engaged in psychological and psychiatric therapy and a professional counselling service specifically designed to assist teachers in crisis.
The maternal aunt agreed that in November 2017 her views were “so dark and sinister” that she made the following assertion to Territory Families:[30]
The aunt further claimed that it did not make any sense to her why a 40-year-old man wants to play with his four-year-old old daughter, and further claims that she cannot understand why the father wants the child for four hours on a Saturday – a Saturday and Sunday. The aunt feels that, throughout the child’s life, the father has been grooming her.
[30] Transcript of proceedings 15 August 2019 line 44 page 111.
The tenor of the evidence was intended to highlight that the presentation and belief of the maternal aunt that the father had sexually abused the child and was grooming her was no longer her current position.
The maternal aunt conceded that at the time she believed the father was grooming the child and that it was proper she share that view with the relevant child protection authority:-[31]
Counsel: Yes, this isn’t some flight of anger?
Mother: This is an ongoing process that I have seen since the child was six months old and I’ve seen what he has been doing with her in his care.
[31] Transcript of proceedings 15 August 2019 line 22 page 112.
The maternal aunt had further alleged that the father had engaged in the practice of ripping the head off the child’s dolls, pulling part the arms and legs and stabbing the doll. He would rip the dolls apart and break and destroy everything that he could find relating to the child. He would destroy books, dolls and toys.
The maternal aunt considered that the father’s purportedly destructive behaviour was consistent with a strategy of grooming.
The maternal aunt agreed that she had lived with the parties for an extended period of time. The father alleged that she was controlling not just of his behaviour but also of his relationship with the mother.
The father alleged that the maternal aunt would often come into the parties’ bedroom at night. At first the maternal aunt denied the allegation, then conceded that she had gone into their bedroom on only one occasion, but further agreed that her interference was the reason for the father placing a lock on the bedroom door.
The maternal aunt considered that the father was still engaged in grooming the child as at May 2018. The obvious question was what has happened since then that now makes the maternal aunt accept that the father was not now grooming the child and that the child is apparently entirely safe in his care.
The maternal aunt contends that whilst she was concerned for the child’s safety, that concern is no longer present and she accepts that the child is safe in the father’s care. The maternal aunt agreed that her reconsideration of previously held fears and concerns was “an amazing transformation”.
The maternal aunt sought counselling to assist her in reconciling the obvious dichotomy namely that she had believed the child had been abused by the father but now is safe in his care. The content and focus of the counselling is explained by the maternal aunt as follows:-[32]
Just recently. I’ve – I’ve been speaking to a lot of counsellors, and I’ve been saying, “Look, I’m really stressed. I’m really concerned. This is all the stuff that has happened to my niece. Am I – do I need to be concerned. Has it – you know, has it happened? Has it really happened? I’m in shock. Look, would he do this to his own daughter? Why would he do this to his own daughter? Why would he try to molest his own daughter?” I’ve had a lot of professional – professional conversations with psychiatrists, psychologists, doctors, so and so.
[32] Transcript of proceedings 15 August 2019 line 27 page 122.
The maternal aunt agreed that at one stage she believed that the father was a paedophile who was grooming the child. She believed that the father was telling the child to penetrate herself to the anus. In evidence there was some confusion as to whether it was the child’s anus or vagina that was the focus of the father’s purported direction.
The maternal aunt answered that the child had demonstrated what had happened. The maternal aunt conceded that the child had put her thumb in her bottom and at the time had said that the father made her play with herself. She was demonstrating what had occurred.
This prompted the maternal aunt to call the mother and there was then a re-enactment by the child of what she alleged the father made her do.
The maternal aunt holds the strong belief that the father had masturbated in public parks, encouraged the child to penetrate her genitals and was grooming her for sexual abuse. She was entirely contemptuous of the father and could see no other alternative explanation other than that he was a paedophile.
She understood from her training and in any event held a belief that a person cannot be cured of paedophilia.
Notwithstanding those considerations, the evidence of the maternal aunt is that it was now apparently safe for the child to spend unsupervised time with the father. She hoped that because the child was a little older that there was more likelihood that the child could report any inappropriate conduct by the father.
The risk that the maternal aunt may pose to the child was raised by counsel in his proposition that once the proceedings are over and the mother achieves her desired outcome namely to relocate the child to Brisbane, the maternal aunt will continue to perpetrate the allegations about the father.
She denied the proposition but did not resile from her observations of the child’s behaviour and the father’s strange and peculiar conduct, all of which confirmed her suspicion that the father was grooming the child.
She was aware that Territory Families had made a finding that she presented as an emotional risk. She considered the finding to be without foundation and misguided.
To the extent that the maternal aunt now contends that she accepts the child is safe in the father’s care, I consider her evidence to be unreliable. I accept as reliable the maternal aunt’s evidence that she considers the father to be a paedophile, has engaged in peculiar and strange conduct involving the child and is grooming the child for sexual abuse if the opportunity arises.
The maternal aunt was barely able to restrain her utter contempt for the father and I have little doubt that but for the litigation strategy adopted by the mother, the maternal aunt would not resile from her allegations of sexual abuse.
The belief by the maternal aunt that the father no longer presents as a risk to the child cannot be reconciled with her strongly held belief that the father had abused the child and that his behaviour was consistent with paedophilia.
There would be little optimism that the maternal aunt could ever support the child’s relationship with the father. It is also unlikely that the maternal aunt could restrain herself from infecting the child with her own malicious and vindictive view of the father.
Ms F
The mother attended upon Ms F in her capacity as a clinical psychologist. The mother attended for six sessions between October 2018 and March 2019. Ms F was tasked to assist the mother overcome and/or manage her belief that the father had sexually abused the child given that the allegations were not substantiated.
The report attached to Ms F’ affidavit refers to the historical and ongoing impact on the mother of family violence perpetrated by the father. In particular, the thrust of the therapeutic intervention was to instruct the mother to use Cognitive Behavioural Therapy (“CBT”) to assist her to manage her fear.
The mother specifically referred to the motor vehicle accident as an incident involving family violence.
Ms F observed that as at 29 March 2019 the mother continued to display high levels of anxiety.
A secondary focus of the therapy provided was to enable the mother to deal with her concerns about the conduct of Territory Families, in particular in assessing that she presented as an emotional risk to the child.
The importance of Ms F’ evidence is to highlight that as at March 2019 the mother still held a belief that the father presented as a risk of sexual abuse to the child and that he had perpetrated family violence including physically threatening behaviour, verbal abuse, financial abuse and physical assault.
The therapeutic assistance provided by CBT was not directed to dispelling the false belief that the mother held concerning sexual abuse of the child and family violence towards her but rather, to managing her fear and anxiety.
The father
The father is currently employed as a coach.
He conceded that he had agreed to share expenses for the child arising out of the IVF program and contract.
He agreed that there had been significant disputes about money and at times both he and the mother had resorted to verbal abuse.
The father was in no doubt that his relationship with the maternal aunt is redolent with mistrust and dislike. There is no likelihood that they can reconcile their differences.
The father conceded that he did display poor anger control during the relationship and has undertaken counselling to assist in anger management. He considers that he is now able to place anger into an appropriate context and as such it is controlled.
The relationship that he had with the mother has been problematic in that since separation there are times when the parties were able to reconcile their differences. When on good terms the relationship resulted in a greater level of flexibility in the father seeing the child, however, when it was not harmonious then the mother would require strict compliance with the orders.
The father was asked as to the safety and suitability of the premises at M Street. Historically, the mother was uncomfortable about the dwelling including asbestos content and poor or inadequate facilities. The father undertook renovations and improvements to the property, however, there is still some controversy as to whether it is able to be certified fit for occupancy.
The final consent orders provided for equal shared parental responsibility. In practice, the father contends that the mother always had the final say and it might not be that he was consulted in respect of all matters.
There remains however some level of relationship between the parties. If the mother and child were to reside in Queensland, the father considered that he would be able to contact the mother by telephone.
The father now seeks an order for sole parental responsibility. The reports of Ms H and a consideration of the matter generally has prompted the father to consider that the mother is unlikely to include him in decisions concerning major issues affecting the child and that her decision in any event may well be adversely influenced by members of her family without regard to his thoughts.
The father anticipated that there may be difficulties in the child transitioning to his care either in terms of a change in the primary residence or spending increased and more extensive overnight time with the father.
The father consulted with various workers at Territory Families as to better identify the issues that he may confront and sought therapeutic intervention as to how he could help the child deal with any lingering thoughts of false belief that she had been sexually abused and to aid and minimise any separation anxiety should the Court order that the child spend extended and overnight time with him.
In addition, the father also consulted his former and current counsellor to focus on the skills that he would need to parent the child given more extensive time.
The father’s evidence was impressive on the point.
The father conceded that the mother has long held a desire to return to Queensland. He recognised that it was a constant theme and in part arose from the mother’s family being tightknit and strongly bonded to each other.
From 2014 the father has not had much to do with the mother’s family other than the maternal grandmother and the maternal aunt.
The maternal aunt has been a long-term resident in the parties’ home. The father accepts that he does not have and is unlikely ever to develop a friendly or even civil relationship with her. He opined that if the maternal aunt had not been present in the home it was likely that he and the mother may well have reconciled their differences.
The return airfare between Darwin and Brisbane is about $800. At age six years the child is too young to travel unaccompanied. Accordingly, the annual travel cost based on four trips per year plus an accompanying adult (taking into account the mother would pay half) would be about $3,200.
The father does not wish to relocate to Brisbane. He was born in Town C and has family connections in the Northern Territory.
The father’s time with the child was suspended following the filing of a Notice of Risk which alleged that the father perpetrated sexual, emotional and psychological abuse to the child.
The mother’s affidavit filed 6 June 2018 contains the following allegation at [3]:-
I have been in a DV extremely violent relationship with this man for the whole time I have been made to stay here and now he is starting on his daughter. Please help keep us both safe for good legally from this man. An innocent child’s life is in your hands. Can we please get protection for my daughter who is under five who has gone through so much already (sic).
The father’s time was reinstated pursuant to an order made by Judge Young on 31 August 2018. The supervision was strict and subject of complaint by the mother as to whether the paternal grandfather had been appropriately diligent as a supervisor, it is apparent from the following extract from his Honour’s published reasons that the basis for supervision was not because the child was at risk but rather, to protect the father from ill-conceived and unsubstantiated allegations:-
10.In summary, there was no evidence or indication of sexual abuse of the child by the father. The investigators said that they would make a finding of substantiation of emotional abuse by the mother. In the recommendations, the investigators said that the family would receive continuing support and counselling and that counselling was necessary for both parents. Notwithstanding that assessment, the mother continues to oppose the reinstatement of any time. The independent children’s lawyer supported the reinstatement of time but told me from the bar table that there had been further allegations of sexual assault or sexual abuse of some kind, I understood it, made recently.
11.She said in those circumstances that, in the interim, it was in the child’s interests, to protect against baseless allegations, that the father’s time be supervised and the independent children’s lawyer suggested that the paternal grandfather would be a suitable supervisor subject to the independent children’s lawyer interviewing him and subject to him filing an affidavit acknowledging that he would comply with the usual requirements of a supervisor in this Court.
The father considered that the handover arrangements at L Group had been to the child’s advantage. The transition of the child between the parties was generally without incident.
He accepted that at present the child appeared to be comfortable moving from one party to the other. He conceded that it would be traumatic for the child to transition into his primary care, but that must be weighed up against what he considered was the trauma to the child of staying with the mother, particularly if the maternal aunt remains an influential and significant adult in the child’s life.
The father remains reluctant to communicate with the mother but he understands that it is necessary, although it needs to be kept to a minimum in order to avoid angry exchange and reduce the potential for further unfounded allegations.
The father proposes that he have sole parental responsibility for the child in circumstances where the mother has aggressively promoted allegations of sexual abuse and has not been reticent in involving the child in support of her pursuit.
The father considers that a new routine needs to be established and proposes that there be a suspension of the child’s time with the mother for three months.
The father agreed that it would be difficult for the child given that she had lived in the mother’s primary care for six years, but again considered that he did not believe that the mother’s current attitude towards him would be maintained after the proceedings were concluded.
The father considers that in the mother’s home his relationship with the child is under constant assault.
Counsel invited the father to provide examples of how he formed that assessment.
The father related a recent school assembly that he attended. The child was in his care at the time. The maternal aunt also attended. She sought to interfere with his time and announced to the parents, teachers and other students that the father would soon enter the room. The impression gained by the father was that it represented a warning to others to take care given that the father was a risk.
The maternal aunt accompanied the father and the child to his car and he felt threatened.
The child indicated to the father that in preparation for overnight time she would feel safer if other persons were present. In particular, it was proposed that two other children should attend so that if something happened to the child there would be others to report any assault or adverse behaviour.
The father gave his evidence in a calm and forthright manner. He was candid in his admission that he had been prepared to accept equal time, but given his observation that the mother and/or the maternal aunt are not able to contain their animosity towards him and are prepared to continue to support and promote false allegations, the child is at risk which can only be ameliorated by a transition to his primary care.
The father denies any assertion or suggestion that he has sexually abused the child or that he is actively grooming the child for abuse.
He contends the risk to the child is not in his care but by her remaining in the toxic environment created by the maternal aunt and energetically embraced by the mother.
The father’s continuing mistrust of the mother was further fuelled by a recent notification that the child remained at risk if her time with him was unsupervised. Whilst the father could not categorically identify the mother as the notifier, he considered that the proximity of the notification to the commencement of unsupervised overnight time was indicative of active involvement by the mother, the maternal aunt or others who provided support.
The allegations were quite specific. The child was observed to wet herself and to say that “daddy pinched me”.
The father remained pessimistic that the mother would ever accept his role in the child’s life.
The father was studying an additional qualification but had suspended his studies to accommodate the litigation. At present he is working casually but did hold a Masters degree and a Bachelor’s Degree.
He was made redundant from his employment in 2014 and then worked as an educator.
His income at present is low and he accepted that his current Child Support liability was only $48 per week. Over a three and a half year period the father has contributed Child Support of $8,965.
The father did counter the claim of minimal financial support by his evidence of the payment of extra-curricular activities, some medicinal expenses and a contribution towards the child’s uniform and some school expenses.
The father was challenged as to the likely effect on the child of suspending any time with the mother for a period of up to three months. The father acknowledged that it would be difficult for the child. He recognised that she would be anxious, upset and may well exhibit poor behaviour.
Parenting considerations
The father seeks an order for sole parental responsibility. The mother seeks equal shared parental responsibility but given part of her parenting proposal is that the child be permitted to relocate to Brisbane, she considers that equal shared care would not be practicable.
Following the remarks of Finn J in Blanding v Blanding [2016] FamCAFC 21 where her Honour considered the Full Court decision in Beckham v Desprez [2015] FamCAFC 247 the Court now should focus on the practical reality of each party’s proposal and the consideration of the primary and additional factors in s 60CC of the Act that are applicable to the circumstances of each case.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interests test is to be considered by application of the objects of s 60B(1) and the underlying principles of s 60B(2).
I am cognisant of the primary considerations and additional considerations in respect of the matters as set out in s 60CC(2) and (3). I am mindful of the directions contained in s 60CC(2A) and in particular the focus by the father on what he considers to be the potential emotional and psychological harm to the child by remaining in the care of the mother. He places no confidence in the mother’s ability to support the child’s relationship with him and contends that the mother will actively undermine the child’s relationship with him should she remain in the mother’s primary care. The mother proposes that consequent upon a relocation, the father would spend extensive time with the child during school holidays and on any other occasion subject to reasonable notice that he might travel to Brisbane. Simply put, the mother seeks a finding that she will promote and support the child’s relationship with the father.
I propose to adopt the following approach:-
(1)Give consideration to the separate proposals put by each of the parties as they were identified and presented to the Court;
(2)Have regard to the objects expressed in s 60B(1) and the underlying principles in s 60B(2);
(3)Have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) namely, the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;
(5)Have regard to the additional considerations under s 60CC(3);
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) are to be considered and if more weight is to be given to one or more of the matters raised then it must be the subject of delineation and comment.
Meaningful relationship
The aims and objects of the Act are to ensure that the best interests of a child or children are met by:-
a)Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b)Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d)Ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
In Mazorski & Albright [2007] FamCA 520, Brown J considered the definition of “meaningful” and observed:-
26.What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. …
The mother’s proposal is that she be permitted to relocate with the child to Brisbane where she would be reunited with her immediate and extended family. The father resists the relocation of the child.
The father recognised that at a very early stage in their relationship and certainly at the time of separation that the mother was anxious to return to Brisbane.
Whilst the father’s primary position has been to resist relocation, it was an outcome that he had considered.
The father’s opposition to the mother’s proposed relocation has hardened given his assessment of the mother’s conduct as an indication that the mother was unlikely to support the child’s relationship with the father.
The parenting considerations have become more complex with the ICL now joining with the father in seeking an order that the child transition to the primary care of the father.
The family consultant considered that there was a strong basis for the mother’s intention to relocate, but that must be seen in contrast to the potential for emotional or psychological harm to be caused to the child not only by the risk of the mother not supporting the child’s relationship with the father, but doing so in an environment of false allegation of child abuse and family violence.
For his part, the father has family connection with the Northern Territory. The paternal grandfather resides in Darwin. The father holds significant qualification that would enable him to find employment in the Darwin region even though he is to resume his course in 2020.
I am not critical of either the mother for her intention to relocate to Brisbane or the father for his intention to remain in Darwin.
The focus is therefore not on the parties given that their separate reasons for choosing where they would wish to live are reasonable, but on how the child’s interests will be served if permitted to relocate or if required to remain.
I proceed on the basis that when considering the primary considerations and the application of the objects and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one. Quantitative concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equal shared parental responsibility and the requirement for time with the child to be, where possible and in her best interests as substantial and significant.
In Godfrey & Sanders [2007] FamCA 102 Kay J considered the requirements of the legislation in relation to the promotion of a meaningful relationship in the following terms:-
36.… Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
The issues that arise in this case are not nuanced. The mother seeks to relocate the child but proposes extended periods during the Queensland school holidays that the child will spend with the father. The father contends that the mother has no interest in promoting the child’s relationship with him and if permitted to relocate, the result will not be a diminution of the quality of the relationship but a cessation of the relationship.
There is little doubt that the interests of the child will be served by maintaining a relationship with both of the parties. The family consultant observed a loving and close relationship between the child and each of the parties, with perhaps a closer emotional attachment existing between the mother and the child consistent with the child having been in the mother’s primary care over the entirety of her life.
Each of the proposals of the parties has the potential to adversely impact upon the child’s relationship with them.
The mother’s application would mean that the child would spend time with the father during school holiday periods. The opportunity for the father to spend further time with the child should he travel to Brisbane is unlikely to occur with any regularity.
Whilst the child would not be able to maintain an optimal relationship with the father if she relocated with the mother to Brisbane that would not necessarily result in a diminution of the quality of the relationship. As discussed, the risk is not the extent to which the quality of the relationship would be diminished but rather, whether there exists a risk of no relationship being fostered or promoted by the mother.
The father seeks an order that the child transition to his primary care and that thereafter following a period of three months suspension of time, there be a gradual reintroduction of the child to the mother.
The mother seeks to relocate primarily to enjoy the benefit of reintegration in her close-knit family both near and extended. Whilst she has employment in Darwin, she considers that her circumstances arising from the stress of the litigation and the restrictions placed upon her by the father in terms of relocation have stalled her career. If permitted to relocate to Brisbane she considers that her career prospects would be substantially enhanced.
The father has casual employment in Darwin but has qualifications in education and he intends to resume his additional studies in 2020.
The child currently is attaining appropriate developmental standards and appears to enjoy school.
The parenting considerations are therefore to be approached from a perspective that the child’s interests are served by maintaining and if possible maximising the child’s relationship with each of the parties.
Is the child at risk?
The mother has historically alleged an appalling history of violent physical and sexual abuse against her and the child perpetrated by the father. The mother contends that she no longer holds those beliefs and does not consider that the father presents as a risk to the child.
On the mother’s case as it currently stands, she does not allege that the father presents as a risk and either accepts that there is no substantiation for the litany of allegations promoted by the mother and the maternal aunt, or accepts that the allegations are without foundation.
The father argues that the mother presents as an unacceptable risk to the child of emotional and psychological abuse.
He does not accept that the mother supports the child’s relationship with him and if permitted to relocate she will not give effect to her proposals.
He attributes malicious intent on the part of the mother to promote vicious and demonstrably unsubstantiated allegations that he exhibits paedophilic tendencies and has embarked upon a plan with its genesis prior to the birth of the child to groom her for ongoing sexual abuse.
The child does not yet appear to be cognisant at any significant level of the false allegations, but the evidence of the family consultant supports a finding that there are warning signs of the toxic attitude of the mother and the maternal aunt towards the father having an impact on the child’s presentation.
There is clear enmity between the parties. There is some prospect of the parties reconciling some of their differences, however, the ongoing influence of the maternal aunt has overwhelmed the mother and she is clearly in her sister’s thrall.
The investigations undertaken by Territory Families, the assessment undertaken by Ms H and the observations of the family consultant lend support for a finding that the maternal aunt represents an extreme risk to the child in circumstances where the mother is not able to recognise her sister’s damaging behaviour and is certainly not equipped with the ability to resist the more florid manifestations of the maternal aunt’s exaggerated view of the father.
I do not consider that the father presents any risk to the child. However, the evidence supports a finding that the child is at risk of emotional and psychological abuse from the mother.
The mother was not persuasive in her claim that the history of allegations of sexual abuse directed against the father no longer represents her current thinking or position.
Even the most cursory consideration of her affidavit, the matters raised by Ms H and the mother’s presentation to the family consultant all support a finding that effectively on the heel of the hunt the mother was resolute in her belief that the father was a paedophile and had as his sole intention to groom and sexually abuse the child.
The mother continues to believe that the father attempted to run her over, had punched the child’s puppy in the eye and had injured or used for sacrificial purposes the child’s pets.
It is a confronting feature of the history of the interim orders that they included a condition of supervision not for the purpose of protecting the child but rather, to protect the father from the risk of ongoing false allegation by the mother and the maternal aunt.
A separate but significant risk to the child arises from the mother’s inability to contain or restrain the more florid malicious conduct of the maternal aunt.
Her evidence was distressing in its candour. The maternal aunt considered the father to have supported the child’s birth by IVF in order that he would have a future sex toy. The maternal aunt was unconvincing in her assertion that similar to the mother, she now accepted that the father was not a risk. She was not able to maintain that personal fiction even for the duration of her evidence. Her dislike for the father was palpable and I find that she will never support the child’s relationship with the father. That finding would not be so important were it not for the significant abrogation of parenting responsibility by the mother in favour of her sister and the clear inability of the mother to resist the more malevolent and vindictive conduct towards the father perpetrated by her sister.
Wishes of the child
At the date of interview by the family consultant the child was not quite five years of age.
The family consultant observed that the child was shy and wary but was able to be interviewed without an accompanying adult.
The child had a good understanding of her circumstances and was able to differentiate between the mother and the father’s home. She enjoyed living with her mother and maternal aunt and whilst a bit boring, she enjoyed her time with her father.
She understood that in Brisbane she had a network of cousins and other extended family.
She liked going to school and whilst expressing happiness with her family, she was clear that her mother was a primary influence and was the most fun.
The obvious love and affection by those who are involved in the child’s care was apparent by the child’s presentation. The family consultant recorded that the child felt safe and well cared for in the home of the mother and the father. The parties were observed to give the child 100 per cent of their attention and it was obvious to the family consultant that the care of the child was the primary consideration of the parties and those invested in her care.
I give some weight to the views of the child but find that there is a paucity of evidence in respect of the child having any insight as to the separate proposals of the parties.
It seems that when the attention of the parties is diverted from each other to the child, they are very focused on her wellbeing. There is nothing inconsistent with the broad proposition that the child needs to spend time with each of the parties.
The nature of the relationship of the child with the parties and others
The family consultant considered that the child’s primary attachment was with the mother. There was however significant depth to the relationship between the father and the child.
As at the date of the trial there had been one period of overnight time. Prior to that the father’s time had been restricted to daytime and under the supervision of the paternal grandfather.
The presentation of the parties did not derogate from the observations of the family consultant that the child is their primary focus.
To the extent that the mother and more forcefully the maternal aunt assert that the passive and benign presentation of the father belies a more aggressive reality, I prefer the evidence of the family consultant and Ms H that the father presented as both reasonable and rational albeit tinged with a level of frustration at having to meet and answer fabricated allegations of sexual abuse and family violence.
The child’s relationship with the maternal aunt is more complex. The maternal aunt has assumed an effective parenting role and exerts a high level of influence over the parenting considerations exercised by the mother and the development and welfare of the child. There is little doubt that the child is strongly bonded to her aunt, however the family consultant considers that whilst not yet having any obvious adverse impact on the child, as she grows older the potential for the child to be influenced and ultimately alienated from the father becomes more likely.
The ICL seeks an order that the mother be restrained from allowing the maternal aunt to come into contact with the child for a period of six months. The father seeks that the exclusion period be for three months.
Both proposals will have some impact on the child. Given the close involvement in the child’s life by the maternal aunt, there may be some difficulty in the child understanding her aunt’s absence.
The substratum to the maternal aunt’s evidence is that she intends in the near future to leave Darwin and return to City K to resume a relationship with her partner.
The maternal aunt’s proposal was not explored to any degree and it is difficult to reconcile her present intention with the long period that she has remained living with the parties in Darwin.
The issues surrounding the presentation of the maternal aunt also bring into sharp focus the extent to which the mother contends that without her sister she will have difficulty in functioning both financially but also in terms of managing the child and her employment if not permitted to relocate from Darwin.
In respect of this topic, it is not open to the Court to speculate as to the true intentions of the mother and the maternal aunt. Their position is unequivocal namely, that the Court should factor into the orders that are made the imminent departure of the maternal aunt whether she remains in Darwin or relocates to City K.
The extent to which each of the child’s parents have taken or failed to take parenting opportunities
The child lives in the primary care of the mother and has spent frequent but short periods of time with the father. Up until recent date his time has been supervised and whilst the father has done his best to involve himself in the child’s activities both curricular and extra-curricular, the reality is that the mother has made decisions about major long term issues.
The observations of the family consultant that place the care and welfare of the child at the centre of each of the parties focus suggests that if given an opportunity, the father would undertake as much of the parenting of the child as would be available to him.
The parties at present have limited capacity for communication, however I give some weight to the father’s contention that if the mother was not constrained by the undue influence of the maternal aunt, the ability for communication between the parties may well be enhanced.
The evidence is that notwithstanding a separation in 2014 there were at times friendly relations between the parties up until 2017.
The refusal of the father to allow the mother to relocate with the child to Brisbane appears to have been the catalyst for the total breakdown or cessation in the parties’ ability to communicate.
It may well be that once the litigation is resolved the parties will find a level of communication that is acceptable to each of them.
The extent to which each of the child’s parents have fulfilled or failed to fulfil the parent’s obligation to maintain the child
The father is in part-time employment. He holds a university qualification and intends to resume his additional course in 2020. The mother is employed full-time and despite her concerns that her career is not able to be easily advanced whilst she remains in Darwin, nonetheless it is her income that underpins the financial security of the child.
The father pays a minimal level of Child Support. He did not impress as having much enthusiasm to make additional financial contribution and seems content to leave the financial arrangements to the mother albeit with some extra contribution for extra-curricular activities and some modest school related expenses.
The likely effect of any changes in the child’s circumstances
The most significant change for the child arises from the mother’s proposal that she relocate with the child to Brisbane.
I have little doubt that the mother will make appropriate arrangements for accommodation, education of the child and find employment for herself.
The concern is not the ability of the mother to provide for the child’s needs whether it be in Darwin or in Brisbane but rather, the extent to which the Court can have confidence that the mother’s hitherto entrenched view that the father was a paedophile and he should have little or nothing to do with the child has genuinely been put aside in favour of the mother’s purported acceptance that the father does not now, nor did he ever, present as a risk to the child.
The evidence does not support such a finding.
There is little evidence that corroborates the mother’s position of a change in attitude towards the father. If anything, the evidence suggests that any purported change in attitude is in response to a recognition by the mother that her chances of securing an order encompassing relocation of the child to Brisbane would be difficult to achieve if in doing so the father’s relationship with the child would be severed.
The mother’s evidence on the topic was unsatisfactory and I find that there is a significant risk of the mother reverting to her former attitude towards the father once the litigation is concluded.
To the extent that the maternal aunt should remain involved with the child, I am easily able to find that she is unrelenting in her opposition to the father and considers him a paedophile and a person without remorse.
The advantages to the mother’s proposal is that she would relocate to Brisbane and enjoy the benefit of a close-knit and strongly connected family. She would secure employment commensurate with her skill and experience and the child will enjoy the comity of extended family. But for an allegation in respect of one of the mother’s sisters who demonstrated aggressive conduct towards the child, I have no misgivings that the child would not be cared for and much loved.
The disadvantage is that the child would be removed from proximity with the father and he would at best spend time with the child during school holidays but would be denied any involvement in the child’s curricular or extra-curricular activities.
The more important consequence of the mother’s proposal is that the father’s relationship with the child would be put at risk arising from the mother’s belief that the father has sexually abused the child and is grooming her.
The father seeks that the child transition to his primary care. The advantage to the child would be a removal from the toxic environment clearly evident in the mother’s household. The disadvantage would be the loss of a critical relationship between the child and the mother in preference for the uncertain ability of the father to take on the primary care role. The father concedes his proposal would cause the child significant distress and anxiety but opines that it can be managed given the extensive counselling he has undertaken, but also that it is a relatively small price to pay if the child is no longer subjected to the malicious false allegations of the mother and the maternal aunt that he has sexually abused the child.
I must always be guided by the child’s best interests and whilst the father’s case has the support of the family consultant and the ICL, I remain concerned as to the ability of the father to ameliorate what would be an inexplicable situation for the child to comprehend.
The evidence supports a finding that the child will be better served by a significant increase in the child’s time with him but not such as to support a transition to the father’s primary care.
I do not consider that the child would be well served by the mother’s proposal involving a relocation to Brisbane. The risk of the mother and members of her family alienating the child from the father are manifest and are underpinned by the mother's unsatisfactory evidence that she accepts there is no substantiation to her claims of improper conduct by the father.
Parental responsibility
Parental responsibility is to be informed by what is in the best interests of the child. The mother has taken on the obligation for all decisions in respect of major issues affecting the child. The father has been effectively excluded. The mother now seeks an order for equal shared parental responsibility, however, notwithstanding the earlier consent final orders and the mother’s parenting proposal, I do not find that there is any evidence to support the proposition that the mother will now include the father in significant decisions affecting the child.
The child currently is content at her school and it is the father’s intention that the child would remain. Given that the mother will not be able to relocate the child to Brisbane, I assume that she will also support the child remaining at her current school.
The father is concerned that the mother has used an array of health professionals in her pursuit of support for fabricated allegations of sexual abuse.
The father contends that the mother is unlikely to desist in her pursuit to have the father considered as a paedophile and an unacceptable risk to the child and as such he seeks sole parental responsibility.
The additional and primary considerations point to the mother having abrogated her responsibility to the child since the date of separation in her pursuit of the father.
Her decisions in respect of the child have been clouded by her belief and she has been overborn by the maternal aunt.
The mother has also abrogated to a significant degree parenting issues to her sister and seems unable to contain or restrain the maternal aunt’s involvement.
In those circumstances I consider that there should be an order placing the parental responsibility for the child with the father subject to an obligation that he should consult with the mother but ultimately will have the final decision as to major issues.
Conclusion
The child’s interests will be served by an order for equal time but with the father to have sole parental responsibility. That will ensure that the child’s relationship with each of the parties is maintained but will limit the ability and scope of the mother to engage the child in unnecessary assessment arising from false allegations of sexual abuse.
The parties may well be able to reconcile their differences to an appropriate degree, but if not then the father having sole parental responsibility will ensure that the significant issues affecting the child are not marred in conflict and dispute between the parties.
There is merit in the order sought by the ICL that the mother be restrained from bringing the child into contact with the maternal aunt for a period of time.
Given that the maternal aunt is intending to leave Darwin and return to City K, I consider that she should be given an opportunity relocate in an orderly fashion. It would be artificial to require the maternal aunt to leave the mother’s home forthwith. The mother and the maternal aunt have intermingled their financial circumstances and there needs to be an opportunity for the maternal aunt to leave Darwin in an orderly fashion but with the mother being able to rearrange her affairs to reflect her new domestic circumstance.
I propose to put in place an order that will have the effect of restraining the maternal aunt from coming into contact with the child for a period of one hundred and twenty (120) days (120) but to start thirty days from the date of judgment.
I have considered the father’s application supported by the ICL for the child to spend no time with the mother for a period of three months. That moratorium on the mother’s time was predicated on the father’s proposal that the child transition to his primary care. That is not the order that I propose to make.
There is also a paucity of evidence as to whether there is any basis or advantage to the child of such an order being put in place. The concept of a “resetting of the child’s relationship with the father” is without evidence.
The disruption to the child must be minimised and I consider that a combination of the child spending equal time with the parties, the certainty of the father having sole parental responsibility and the removal of the maternal aunt as a disruptive and damaging influence will likely assist the child in the transition to the new parenting arrangement.
I certify that the preceding three hundred and sixty five (365) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 6 November 2019.
Associate:
Date: 6 November 2019
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Procedural Fairness
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Standing
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