JANOME & JANOME

FEDERAL CIRCUIT COURT OF AUSTRALIA

JANOME & JANOME

[2019] FCCA 1036

Catchwords:
FAMILY LAW – Parenting – Dispute about which parent a child aged 3 ½ should primarily live with – where an expert’s report was prepared – where the expert concluded that the mother had a paranoid personality disorder or paranoid personality traits – where the report is fundamentally flawed and was discredited at trial – where there is no evidence that the mother has a mental illness of any kind – where the father’s conduct in inducing this belief in third parties including the expert gives rise to grave concern about his parenting capacity – where the Independent Children’s Lawyer nevertheless submitted that the child should live with the father – where the Independent Children’s Lawyer submitted that the child was at risk of psychological harm from the mother as a result of the mother twice taking the child for medical investigations and on one occasion alleging that the child had made disclosures of sexual abuse by a third party – where three separate issues of this nature occurred in the eight months prior to the trial but where they were each quite different and on the whole of the evidence do not establish that the mother poses a risk of psychological harm to the child – orders made for the child to live with the mother and spend time with the father – where the father sought to have the child’s name placed on the Watch List indefinitely – where there is no evidence supporting the necessity for such an order – where this application is dismissed.

Legislation:

Children and Young Persons (Care and Protection) Act 2011 (NSW), s.128

Family Law Act 1975 (Cth), ss.60CC, 61DA, 65DAA, 65DAC

Applicant:

MR JANOME

Respondent:

MS JANOME

File Number:

NCC 104 of 2017

Judgment of:

Judge Terry

Hearing dates:

25, 26, 27 & 28 March 2019

Date of Last Submission:

28 March 2019

Delivered at:

Newcastle

Delivered on:

10 April 2019

REPRESENTATION

Counsel for the Applicant:

Mr Tregilgas

Solicitors for the Applicant:

Turnbull Hill Lawyers

Counsel for the Respondent:

Mr Weightman

Solicitors for the Respondent:

Michelle Thomas Solicitor

Solicitor Advocate for the Independent Childrens Lawyer:

Ms O’Rourke

Solicitors for the Independent Childrens Lawyer:

Legal Aid NSW Newcastle

ORDERS

All previous parenting orders concerning the child [X] born … 2015 (“the child”) are discharged.
The parties shall have equal shared parental responsibility for the child.
The child shall live with the mother.
The child shall spend time with the father as agreed between the parties but failing agreement:
(a)Until the child commences school:
(i)In week 1 from 10.00am on Thursday to 10.00am on Saturday; and
(ii)In week 2 from 10.00am on Saturday to 10.00am on Monday.
(b)When the child commences school:
(i)From the conclusion of school each Wednesday to the commencement of school on Thursday during school terms.
(ii)Each alternate weekend during school terms from the conclusion of school on Friday to the commencement of school on Monday.
(iii)During the Terms 1, 2 and 3 school holiday periods for the first half of the holidays in odd-numbered years and the second half of the holidays in even-numbered years.
(iv)During the first and second Term 4 school holiday periods after the child commences school in a week about arrangement commencing at 10.00am on the first Saturday of the holidays in the first year of school and commencing at 10.00am the second Saturday of the holidays in the second year of school.
(v)Thereafter during the Term 4 school holiday periods from 10.00am on the first Saturday of the holidays to 5.00pm on the Saturday which is the midpoint of the holiday period in even numbered years and from 10.00am on the Saturday which is the midpoint of the holidays to 5.00pm on the last Saturday of the holidays in odd numbered years.
Notwithstanding any other order:
(a)In odd numbered years, the child shall spend time with the mother from 1.00pm on Christmas Eve to 1.00pm on Christmas Day and with the father from 1.00pm Christmas Day to 1.00pm Boxing Day.
(b)In even numbered years the child shall spend time with the father from 1.00pm on Christmas Eve to 1.00pm on Christmas Day and with the mother from 1.00pm Christmas Day to 1.00pm Boxing Day.
Notwithstanding any other order the child shall spend time with the non-resident parent on his birthday between 10.00am and 2.00pm if a non-school day and from the conclusion of school to 6.00pm if a school day.
The father’s time with the child is suspended from 5.00pm on the day before Mother’s Day to 5.00pm on Mother’s Day.
The mother’s time with the child is suspended from 5.00pm on the day before Father’s Day to 5.00pm to Father’s Day.
When changeover does not occur at the child’s school, changeover will occur at Town A McDonalds.
Each party shall promptly notify the other if the child is involved in an accident or medical emergency requiring attendance at hospital or is diagnosed as suffering from a serious illness.
Each parent may obtain from the child’s school copies of newsletters, school reports, order forms for school photographs and other information normally provided to parents and each parent may attend events at the child’s school normally attended by parents.
The parents shall keep each other informed of their landline and mobile telephone number, residential address and email address and advise the other parent of any changes to the same within 7 days of any such change occurring.
The father’s application for an order that until further order or else subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975, MR JANOME BORN … 1975 and MS JANOME born … 1983 their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child [X] born … 2015 from the Commonwealth of Australia AND IT IS REQUESTED that the Australia Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist, until the court orders its removal IS DISMISSED.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 104 of 2017

MR JANOME

Applicant

And

MS JANOME

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This matter involves competing applications for parenting orders in respect of [X], 3 ½.
[X] lives with his mother and has done since December 2015 when he was two months old and he spends regular time with his father.
The father sought orders that the child live with him, that he have sole parental responsibility for the child and that the child spend time with the mother for two days/one overnight each week until he commenced school and each alternate weekend and one overnight in the other week and for half of the school holidays once he commenced school. In respect of the Christmas school holidays he proposed that the time be week about indefinitely.
In support of his case the father relied on an expert report prepared by Dr B. Dr B said that the father was the better parent and that the child was more strongly attached to him and recommended that the child live with him.
Despite the way the evidence played itself out the father continued to rely on the assertions in the report that the mother had either a paranoid personality disorder or tendencies in that regard and he maintained that there were concerns about her capacity to feed the child and keep a clean and tidy home which overall made it preferable for the child to reside primarily with him.
The mother sought an order for equal shared parental responsibility and orders that the child live with her and spend time with the father in the same way as he was doing at present until he commenced school; that is from Thursday to Saturday in week one and Saturday to Monday in week two.
She proposed that once the child commenced school he spend five nights per fortnight with the father in a four/one configuration. She also proposed an equal sharing of the school holidays but proposed that the child spend a longer block of time with each parent in the Christmas school holidays as he got older.
The mother said that Dr B’s report had been discredited and that there was no foundation for a claim that she had a paranoid personality disorder or was in any way paranoid. She said that the father had engaged in coercive and controlling behaviour during the parties’ short relationship and that both prior to and after the end of the relationship was non-supportive of her and intent on undermining her as a parent.
The mother strongly denied that there were any problems with her feeding of the child or with her housekeeping. She did not accept that the child was more strongly attached to the father and said that there was no reason to disturb the child’s current living arrangements.
The Independent Children’s Lawyer submitted that the child should live with the father and spend time with the mother as the father proposed, save that she proposed that once the child commenced school the time on the alternate weekends should end on Monday and not Sunday and proposed a more liberal arrangement during the Christmas school holidays.
The Independent Children’s Lawyer did not rely on Dr B’s report as such. She took a different tack. She submitted that both parents posed a risk of psychological harm to the child but she focused her submissions on the way the mother had handled some disclosures the child had allegedly made in the second half of 2018 and the way the mother had reacted to some alleged injuries or interference with the child. The Independent Children’s Lawyer submitted that the child was at greater risk of psychological harm in the mother’s care and so there should be a change of residence and the child should live predominantly with the father.
The Independent Children’s Lawyer also made the rather odd submission (to borrow one of Dr B’s favourite words) that the child would be better living with the father because he had more standing in the community.
The Independent Children’s Lawyer supported an order for equal shared parental responsibility.
An issue in the case was whether a Watch List order should be made. The father sought an indefinite Watch List order. The mother opposed that. There was not much focus on that or much evidence about it at trial. I will deal with it at the end of the judgment.

The evidence

In the father’s case evidence was given by himself, Ms C, Ms D and Dr E.
The mother was the only witness in her case.
Dr B prepared an expert’s report which was released to the parties in March 2018.
As will become apparent when I traverse various issues in the case about which I have to make findings I have considerable concern about the father’s evidence. There are many inaccuracies in his evidence and many occasions when his evidence was incomplete.
Some examples are his evidence about the consultation with Dr F and his evidence about whether it was possible for him to contact the mother when she was in India. His evidence about those matters was incomplete and misleading. His evidence about the mother taking videos and pictures was brief and was misleading when considered in the context of the mother’s more detailed evidence.
The father did not mention anywhere in his affidavit the fact that he installed CCTV cameras inside the house and he did not mention his control of money.
The father referred in his affidavit to an occasion when the mother took [X] to Town A Hospital on 7 November 2018 but failed to mention that she did so after he repeatedly urged her to do so and he gave a very incomplete version of what was in the discharge summary.
I will refer to my concerns about particular parts of the father’s evidence in the context of various issues that arise but the fact that there is that level of problem with his evidence means that even when I am not confronted with obviously problematic evidence by him about an issue in dispute I am going to be concerned about the weight I can place on his evidence.
That does not mean that I automatically accept that the mother is telling me the truth about everything: I don’t. But I have significant concerns about the father’s evidence.

Background

The mother is 36 and the father is 43. They are both Indian but they come from very different backgrounds.
The father lived in Country G for a significant period of time prior to commencing high school. As far as I can glean from the material he attended high school in India but he left India to do health care training in Country H and then spent 10 years working in the United Kingdom before coming to Australia in mid-2013.
The mother on the other hand lived in India until she came to Australia in … 2014. When she married the father and immediately before she came to Australia she was living in India.
The parties met online. They married on … 2013 but shortly after the marriage the father returned to Australia and it was another 12 months before the mother joined him in Australia.
The parties have one child, [X], who was born on … 2015. Both parents had been previously married but neither has any other children.
The father is a British citizen but has permanent residency in Australia. The mother I would assume is still an Indian citizen but she also has permanent residency in Australia.
The parties cohabited for only one year and it would seem from their evidence that they spent a pretty unhappy 12 months together.
The mother fell pregnant almost straightaway. The parties relationship was troubled among other things by the father being critical of the mother’s housekeeping standards. He disputed the extent of that but there was certainly a difference between the parties in terms of what they expected in the home. There were also differences between the parties about what the mother should or should not be doing after [X] was born.
I may not be able to make findings to any great extent about who was right and who was wrong about all that conflict but there is doubt that there was conflict and a lot of misery in the relationship prior to the mother going to India in 2015.
The mother was in the habit of seeking assistance from a next door neighbour, Ms D, and pouring out her woes to her. As a result toward the end of the year Ms D called the police and they visited the parties’ home. Following that the Department of Family & Community Services (FACS) became involved and FACS workers visited the home. They saw the CCTV cameras the father had installed in the home after the first police visit and I will refer to that later.
FACS workers spoke to the parties. The father denied that he had done the things the mother had complained about to Ms D. The mother at that point very much muted her complaints and shouldered some of the blame for whatever it was that had happened. The Department did not establish there was any risk of harm in the household and later in 2015 the mother left Australia.
However before that happened the father took the mother to see a colleague of his, Dr F, a psychiatrist.
This is a centrally significant issue in the case, because the manner in which the father reported the outcome of this visit and the use Dr B made of what he was told about it is one reason why absolutely no weight can be placed on Dr B’s report.
The circumstances under which the mother was taken to see Dr F and the father’s report of the result of the visit causes me considerable disquiet.
There is no doubt that the visit to Dr F was arranged because the police had visited the home and the father was concerned about the impact allegations that he had committed acts of family violence might have on his ability to practise medicine.
The father took the mother to see a general practitioner, Dr J, who was a colleague and friend of his. Dr J wrote out a referral for the mother to see Dr F who is a psychiatrist and also a colleague and friend of the father’s.
The mother said that she was unaware that a referral had been made and there is nothing in the evidence to suggest that she was aware of it or that what was happening was properly explained to her.
The mother and father went to see Dr F and I have no reason to suppose, absolutely none on the evidence, that the mother willingly went to be assessed psychiatrically. I accept the mother’s evidence that she thought the parties’ were going for see Dr F for some sort of counselling or marriage counselling.
That this was her belief is confirmed by what she said to FACS in December 2015 and by what she said in a message she sent to Dr E’s wife, Ms K in early 2016. In addition in the document attached to the mother’s affidavit which was generated after the mother made a complaint to the Health Care Complaints Commission (the HCCC) Dr F uses the word “counselling”.[1]
[1] See Exhibit “O.
The father and mother both went to see Dr F. He spoke to the mother on her own. She said it was only for 10 minutes, but even it was for longer, on any view the parties were only in Dr F’s rooms for about 30 minutes.
It causes me considerable disquiet that the father failed to provide a shred of evidence in his affidavit about what happened at the visit and whether he had any conversations with Dr F about the mother, either then or at any other time and if so what he said to him. It also causes me considerable disquiet that the father said that Dr F told him certain things about the mother after speaking to her but he did not suggest that Dr F said anything to the mother about what was allegedly wrong with her, and the mother was, on the father’s case, Dr F’s patient.
The father asserted in his affidavit, without providing any detail and as if it was a statement of fact, that the mother refused to attend further treatment or assessment with Dr F.[2] There is no evidence that this was ever suggested to her.
[2] Father’s affidavit paragraph 140
I am concerned about the visit itself; that is bad enough but what is worse is what the father did with whatever it was that Dr F told him and the real evil of the matter then becomes how that caused a problem with Dr B’s report.
But I will return to that; I am going to continue chronologically.
In late 2015 the mother went to India with [X] to live with her family for a period of time. She went with the father’s full knowledge and consent. He paid for the one-way ticket. The mother said that she thought the father intended to join her and that they would all come back to Australia. [X] had only a six-month visa when he left Australia.
The father said in his affidavit that he considered that the date the mother left Australia was the date of separation and apparently the mother now accepts that as well because the father did not join her in India and the parties have not lived together as husband and wife since the mother left Australia.
The father gave very misleading evidence about what happened after the mother went to India. He suggested in his affidavit that he tried to keep in contact with her and that the mother avoided contact. I do not accept that. The mother attached extensive evidence to her affidavit which paints a very different picture, a picture of her regularly communicating with the father, sending him photos and information about [X] and asking if there was any chance of a reconciliation.
When confronted with this in cross-examination the father admitted that he had received those messages but said that on other occasions he was blocked from communication.

I do not accept that the mother tried to avoid the father in India or tried to exclude him from [X]’s life and the fact that Dr B accepted the father’s assertion that this was the case is one of the numerous matters which go to undermine the weight that can be placed on his report.
In April 2016 the father travelled to India. He said that he went for work reasons and he went to a very different location to where the mother was living. There is no evidence that he made any attempt to contact the mother or to travel to where she was living even though he knew where she was.
In his affidavit the father said that he could not go to India and take legal action because of his status as a British citizen. That does not entirely make sense to me but I need to be culturally sensitive and acknowledge that I lack knowledge about the complexities of life in India. The father may have had some legitimate concerns about taking legal action. However he didn’t need to take legal action. The mother wasn’t trying to avoid him as the WhatsApp messages make very clear. There is nothing to suggest she would have prevented him seeing the child if he had attempted to do so but he made no proposal to do so.
In … 2016 the mother returned to Australia with [X]. She said that she had to leave because [X]’s six-month visa was about to expire.
The father queried that when speaking to Dr B. He said that he had obtained an OCI visa for [X] as a result of [X]’s Indian heritage which would have allowed [X] to stay in India longer. However he provided no evidence that he had informed the mother about that and he undermined any such suggestion by the following passage in his affidavit:
With some hope that Ms Janome and [X] would return to Australia as [X] had only had a 6-month Indian visa which was due to expire on … 2016, I returned to Australia.[3]
[3] Paragraph 30 of the father’s affidavit.
That is what the father said in his affidavit so there was nothing odd about the mother’s decision to return to Australia with [X] in … 2016 as Dr B opined in his report.
The mother returned to Australia and commenced living in Town A near Town L, which was the place the parties had lived during their relationship.
I have not counted the number of times the word “odd” is used in Dr B’s report but using again the word that he used repeatedly, Dr B said that he found it odd that the mother left India when the father was there, although clearly from paragraph 30 of the father’s affidavit the father did not think it odd, and also found it odd that the mother commenced living in Town A upon her return to Australia.
Why that is odd escapes me and it is another cause for concern about the report. It is not odd at all that the mother would return to the one place in Australia where she had started to put down some embryonic roots and knew some people and had been attending church.
In September or October 2016 the father was told by someone that they had seen the mother crossing the street and he contacted her through a priest and began to request time with [X]. The mother readily agreed and time commenced.
The father had spent no time with [X] since he was two months old and time was initially for a couple of hours and gradually increased. That was entirely age-appropriate and the mother cannot be criticised in regard to that.
On 12 January 2017 the father commenced proceedings in this court and he sought an order that [X] to live with him. In his supporting affidavit he referred to the consultation with Dr F and he said as follows:
In … 2015 Ms Janome attended upon Dr F for a cognitive function assessment. Ms Janome was diagnosed with low IQ, personality disorder and psychotic illness.[4]
[4] Paragraph 131 of the father’s affidavit.
Immediately after the father filed that affidavit, and quite rightly too, the mother made a complaint to the Health Care Complaints Commission (HCCC) and by the time the parties attended the interviews with Dr B the father had amended his evidence to claim that Dr F had made a differential diagnosis or a possible diagnosis of a psychiatric disorder, personality disorder or low IQ.
There is no evidence that Dr F ever made any diagnosis of the mother and the father’s use of the “diagnosis” is very concerning indeed because it creates an impression that Dr F formed an independent professional opinion when there is no evidence that he ever did, even in the father’s affidavit at its absolute best.
Dr F did not give evidence before me. He did not keep any notes of the consultation. He did not charge for the visit and he saw the mother for 10 minutes or at best for a little bit longer.
In the father’s trial affidavit he said that Dr F sent a letter to the HCCC saying that he told the father that it was possible that the mother had a cognitive impairment, psychosis or personality disorder.[5] This appears to be a quote from a document but the full document was not disclosed and my disquiet about the father’s unreliability as a witness causes me to be concerned about the complete accuracy of that information.
[5] Father’s affidavit paragraph 134
The mother attached to her affidavit a letter Dr F sent to the HCCC on 24 March 2017. He does not use the word “diagnosis” in that letter.
The whole issue of the mother being taken to Dr F in the first place causes me grave disquiet. It was wrong that she was taken to see somebody who was a friend of the father’s for a purpose not revealed to her. Even worse is the immense harm the father has done by providing inaccurate information about what happened at the consultation to this court in January 2017 and to Dr B.
Even though when speaking to Dr B in 2018 the father changed to a degree what he said had occurred compared to what is in his 12 January 2017 affidavit, he still referred to a diagnosis and the harm that caused is readily apparent from Dr B’s report, because he refers to Dr F’s clinical opinion.
There is not and never has been a clinical opinion or a diagnosis by Dr F.
The father has never apologised to the mother for his behaviour in taking her to see Dr F and not only that, while not calling Dr F to give evidence he continued to assert to this court that his account of what Dr F said was accurate. He continued to use the term “diagnosis” when he was in the witness box, despite its real capacity to mislead, whether the word is preceded by differential or not.
The father has never shown any insight into the harm he has done by making the statements he did in his January 2017 affidavit or to Dr B or reflected on the very real possibility that this misled Dr B.
Even worse, in his trial affidavit he implied that he was to be pitied because he was reported to the HCCC. He said this:
The investigation placed a question mark over my professional reputation and ability to practise medicine during the investigation. This had significant impact on me professionally and personally.[6]
[6] Paragraph 137 of the father’s affidavit.
If the mother had not complained, what would have been the outcome? She had to complain and the father is not to be pitied because that happened.
Another action by the father around the time he commenced the court proceedings which also caused real harm was that he made contact with a lady called Ms C who gave evidence for him at trial.
Ms C was a member of the same church as the mother and she had befriended the mother, who was isolated in Australia and had only been back here for a few months, and was assisting the mother, who did not drive, with such things as transport.
The father found out about this and persuaded Ms C to spy on the mother and report to him about such things as whether [X] had a cold and the state of the mother’s home.
The fact that the father called Ms C to give evidence in his case suggests that the iniquity of this behaviour is quite lost on him.
The mother discovered the deception in late February 2017 and ceased contact with Ms C and of course lost a support person.
In her affidavit Ms C referred to an occasion when after the mother discovered what Ms C had done, she accepted a lift to church from her but at the end of the service, not surprisingly, decided that she was going to get the bus home and she went to the bus stop in the rain.
Ms C said as follows in her affidavit:
It was raining that night. With no umbrella or stroller for [X], Ms Janome left the church, in the rain and walked to the Hospital bus stop, approximately 200 meters from the church. Ms Janome was sitting with [X] at the bus stop in the rain.[7]
[7] Paragraph 44 of Ms C’s affidavit.
How the father and indeed Ms C, don’t feel shame when they read that I don’t know, but clearly they don’t and they used that incident as a reason to criticise the mother.
The father promotes the idea that he is a good and caring father and I am sure that in some respects he is, but he was not a good and caring father when he took away from his son’s mother the support she had been able to gain to assist her upon her return to Australia, when she had no licence and nothing like the contacts and support in the community that he did.
The mother later became concerned that the father had got in the ear of two other people who were apparently supportive of her, Ms M and Ms N, although how desirable they were I don’t know.
The mother’s suspicions were reasonable, not only because of what had happened with Ms C but because it is apparent from the father’s affidavit that they were talking to him and feeding information to him. The father alleged that they did it of their own volition but the fact that the mother was suspicious was hardly surprising.
I cannot place any weight on the tranches of conversation the father put in his affidavit concerning things these people have allegedly said to him. They were not called and the father was not always a reliable witness.
After the father commenced proceedings interim orders were made for [X] to spend time with the father and in July 2017 an expert report was ordered.
The report was prepared by Dr B and was released in March 2018. Following its release the father made an interim application for an immediate change of residence. That was dismissed and the matter was listed for trial and it proceeded before me for hearing a couple of weeks ago.

The parties circumstances

The father is a health care worker. I think he is currently attached to Town L employer but he also does some work from home.
The father lives in suitable accommodation in Town O. He said that if he became the primary carer for [X] he would arrange his working hours so as to be available to care for him. [X] would be spending some time with the mother and he said that he would also enrol [X] in child care. I accept that the father could make appropriate arrangements for [X]’s care on a day-to-day basis.
The father said that he had not re-partnered. The mother believes that he has but there is no evidence to support a finding that he has.
The father has some relatives in Australia. He referred in his affidavit to an uncle and aunt in Sydney and an uncle in Town P. He also has a sister in the Country Q although that is not particularly relevant to the situation of the parties living in Australia. The paternal grandmother has visited Australia but she currently lives in India.
The mother lives in rented accommodation in Town A and she isn’t working. She has qualifications as a health care worker and she worked as a health care worker in India. What she will do in Australia in terms of work I don’t know. [X] is still only three and a half so if the mother continues to be the primary carer she may not return to the workforce and even if she has substantial and significant time with him she may not. I do not know what the future holds for the mother in terms of work.
The mother has no family in Australia and she has not re-partnered.
[X] is not currently attending day care but the mother gave an extensive history in her affidavit of him having attended in the past; until fairly recently, I think toward the end of last year. At present he is not attending day care but the mother described other activities he was engaged in.

[X]’s best interests

Any orders I make about [X] must be determined by treating his best interests as the paramount consideration and s. 60CC(2) and (3) of the Family Law Act contain the matters to which I must have regard in order to determine his best interests.
The primary considerations are the benefit to the child of having a meaningful relationship with both of his parents and the need to protect the child from physical or psychological harm as a result of being subjected to or exposed to abuse, neglect or family violence.
I am going to deal with the additional considerations in s. 60CC(3) first however and the first of those can be ticked off very easily because it is the views of the child and [X] is too young to have a view about parenting arrangements.
I must consider the nature of the child’s relationship with each of his parents.
Both parents are proposing that the child spend substantial and significant time with each of them and implicit in that is that they both accept that the child has a good relationship with each of them.
The father said that the court should place weight on Dr B’s opinion that the child had a stronger relationship with him and that he was the child’s primary attachment figure. The father’s counsel submitted that even if Dr B’s opinion about the mother’s mental health was discredited, I should not throw the baby out with the bath water and dismiss his opinion about [X]’s attachments.
I have concerns about it. Dr B saw the child and his parents for a very brief period of time about 18 months ago. The child was certainly very keen to go with the father on the day of the interviews when the parents were both together in the same room but as Dr B conceded in cross-examination, that could have been due to other factors and it is not difficult to imagine some.
The mother said the father had an electronic toy which distracted the child. The father did not accept that. I cannot make findings about that but the child was living primarily with the mother. Sometimes when a child doesn’t see the other parent very often, they may rush to them when there is that sort of an observation. I cannot discount that possibility.
The major difficulty however is that Dr B’s report is so significantly flawed for reasons I will explain later in the judgment, his willingness to accept as true everything the father said to him so strong and his opinion about the mother’s mental health so fundamentally flawed, that I am not convinced that I can pick out one part of the report, in other words his opinion about the child’s attachments, and place weight on that when I cannot place weight on so much else that is in the report.
The father said that the child did not want to part from him at changeovers and resisted going to the mother. The mother said that the same thing happened when the child had to leave her care and that sometimes the child said he did not want to go to the father, in fact the mother said that one of the reasons she sometimes videoed the changeovers was to demonstrate that this was the case.
It would not be unusual if it was the case, if a child of 3½ had separation issues when he transitioned between the parents. I cannot place any weight on the father’s evidence about the child showing some distress about leaving his care to bolster up a suggestion that the father is the child’s primary attachment figure.
I am not prepared to place weight on an opinion given by Dr B 18 months ago in a deeply flawed report. The best I can say is that the child is content to be with each parent. That is what the parents’ cases are telling me as a result of what they are proposing about the child spending time with each of them.
I must consider the extent to which each parent has taken or failed to take the opportunity to spend time with the child, communicate with the child or make decisions about the child.
I am satisfied for reasons I have already given that the father did not make any effort to spend time with the child between December 2015 and September or October 2016 when he realised that the mother was back in Australia.
He provided no adequate explanation for this and I do not accept that he could not have located the mother much earlier had he wished to do so. However since late 2016 he has spent time with the child regularly and I am satisfied that he does genuinely want to be part of the child’s life.
The mother has been committed to caring for the child throughout his life.
I must consider the issues of child support.
The father said that he earned $2000.00 a week and paid child support as assessed. That was not challenged and I accept that is the case.
I must consider the likely effect of any change in the child’s circumstances.
The Independent Children’s Lawyer’s case was that a change of primary care would be beneficial because it would protect the child, to an extent at least, or perhaps to put it another way would lessen his exposure to, psychological abuse perpetrated by the mother in taking him for repeated medical examinations.
She submitted that the child would readily adapt to this change given that he had a good relationship with the father and that the father was a capable parent and the child would still be seeing the mother regularly.
The father’s case was similar, in that he said that the child would readily adapt to the change as he was the child’s primary attachment figure. I do not accept that but I do accept that the child is attached to him and that he provides good day-to-day care for the child so from that perspective there is strength to a degree in his submission that the child would readily adapt to the change.
The father said that the change would be beneficial because he could provide better day-to-day care in terms of feeding the child and keeping a clean house. He also did not resile from the case that the mother had a mental illness, although he did not really explain how this played into his proposal.
The father’s case was that the likely effect of change would be beneficial and that [X] would easily adapt to it.
The mother proposed no change and I will have to assess at the end of the case, after taking into account the remainder of my findings, whether a change to the child’s current living arrangements is likely to be beneficial or detrimental for the child.
I must consider the practical difficulty and expense of the child spending time with a parent.
That is not an issue in this case. The parents live in Town A and Town O. They are about 10 kilometres apart. There is no practical difficulty or expense in the child spending time with each of them regularly.
There could be an issue with choice of school depending on where the child primarily lives but whichever school is chosen the other parent will be living close enough to be able to easily attend school events and parent/teacher events.
I must consider the capacity of each parent to provide for the needs of the child, including his emotional and intellectual needs.
In many respects the father has a lot going for him as a parent. He does not abuse drugs and alcohol or have mental health issues, he is gainfully employed and he is capable of providing good day-to-day care for the child. I am confident that he will ensure the child is educated properly.
The father said that historically the mother had alleged that he abused illicit drugs and alcohol or abused prescription medication.
This is actually an overstatement of the evidence in the mother’s affidavit. The mother said that there were some incidents where the father took some medication and drank too much and said that he wanted to die. She said that she called Dr E to come to the house because of her concerns about that.
I cannot make a finding that the father had a drug and alcohol problem because those events happened. I consider the mother’s evidence about those events is likely to be reasonably accurate. I have the father saying that they did not occur but he was not always a reliable witness. I have Dr E giving some slightly different evidence but he is a friend of the father’s and has known the father much longer than he has known the mother and he prepared an affidavit long after the events concerned happened and I cannot be sure how accurately he recollects things.

I have no particular reason to doubt the general veracity of the mother’s evidence but her evidence does not suggest that the father has a problem with drugs and alcohol. It suggests that at certain points of time the father was extremely distressed and acted out in distress and even on the mother’s case they seem to have been fairly isolated incidents.
The fact that those incidents probably occurred much as the mother described does not indicate the father has any mental health issues which impact on his parenting. They also do not indicate he has any drug and alcohol problems.
In those respects I do not have a problem with the father’s parenting capacity.
The father’s attitude to the mother and his treatment of her and how that plays into the overall assessment of where the best interests of the child lie is an issue in the case but I will refer to that later in the context both of making a finding about the benefit to the child of having a meaningful relationship with both of his parents and in my conclusion.
Turning to the mother, she also has no issues with drugs and alcohol. She is an intelligent, educated person. She has qualifications in health care work. She is not employed at the moment but that is hardly surprising given that she is in a different country and has the primary care of a young child.
I am satisfied that the mother, like the father, is capable of providing good day-to-day care for the child. It may be different to the care the father provides but it is still good day-to-day care.
The father complained about the mother’s housekeeping standards but his evidence did not go above suggesting different standards.
The father was at work all day. He came home. He considered that the mother should have been making a greater effort with the baby and the home. I cannot find that was necessarily the case and in … 2015 the father let the mother go to India. She remained away until mid-2016 and he did not contact her again until September 2016, 10 months or so later and one has to question how concerned he was about the mother’s capacity to care for the child when he facilitated that occurring.
Ms C was called in the father’s case and she made some complaints about the mother’s housekeeping; about her giving [X] chicken nuggets; and about things being on the floor. However she was an abrasive witness who seemed to resent the fact that the mother had found out about her deception.
I accept the mother’s evidence that when they were on good terms Ms C told the mother that she was doing a good job. In the affidavit she signed for the trial she said that the mother wasn’t. She said that the mother fed the child nuggets and chips and that there was something grey in the microwave. However as I commented during final submissions just about the only positive thing the father was able to say about the mother when asked about her qualities in the witness box was that she was a good cook.
I do not accept that the mother is incapable of properly feeding [X]. Toddlers often have issues with what they will eat; there is nothing unusual or odd about that.
Ms D, who was the mother’s next-door neighbour when [X] was born and who remained so until the mother went to India, filed an affidavit in which she made some comments about the mother not being quick enough to change [X]’s nappy.
Her evidence was seriously undermined by the fact that soon after she entered the witness box she was asked about the evidence in her affidavit about the mother smashing a modem. She said that was not correct and she didn’t think it was in her affidavit. Clearly it was. It begs the question of whether she had read her affidavit and means that I cannot place much weight at all on her evidence.
Even if I could place weight on it nothing Ms D said suggested that the mother has some massive overall deficiency in being able to care for the child.
It seems likely from all the evidence that the father is much more meticulous than the mother and has a different style of housekeeping, but I cannot find that the mother is unable to provide the child with satisfactory day-to-day care.
The other issue that was thrown up in relation to the mother was the allegation that she had a mental illness.
The mother has no history of having mental health issues of any description before her relationship with the father commenced. It was the father’s case though that Dr B had diagnosed her with paranoid personality traits and possibly a paranoid personality disorder and that I should be very concerned about how that might impact on her parenting capacity.
I cannot place weight on Dr B’s opinion because his report is significantly flawed.
Part of the reason for that is that he misled about whether there was an earlier diagnosis by Dr F, and part of my concern about the report is due to the evidence which emerged before me such as the evidence about Ms C’s actions and about the cameras in the house. Some of the things that Dr B either didn’t know or didn’t appreciate impact on the weight I can place on his report.
However there are numerous concerns inherent in the report itself.
First, there is a very strong flavour in the report of a bias to the father. On numerous occasions Dr B referred to something the mother said and then added, “But Mr Janome said” or “that seemed odd because Mr Janome said.” In the opening few paragraphs of the report Dr B said “I believe Mr Janome” and he made comments such as “Mr Janome was impressive”, “I didn’t get the sense that Mr Janome”, etcetera.
Dr B claimed in cross-examination that the comment, “I believe Mr Janome” was a misstatement and that he meant to say something more nuanced but given the flavour of the report as a whole I do not accept that explanation.
Second, many of Dr B’s negative comments about the mother were not underpinned by any evidence, either articulated by Dr B when he made the comments or discernible from the report, for example, “that the mother struggled in high school” (as opposed to struggled with algebra which he referred to a few pages earlier) or that she had problems with relationships.
Dr B used the word “odd” countless times in connection with assertions made by the mother but many of the assertions are not odd at all. He said for example that:
Oddly, the mother said she struggled with algebra in year 9.
How on earth anyone can describe that as odd I cannot understand.
He said it was odd that the mother felt looked down on as a divorced person, which in the context of her culture and her Catholic religion is not odd at all. He said that working with children of sex workers in India was a worthwhile but potentially odd area of work. He also used the word “extraordinary” when describing something that was factually wrong in connection with the mother returning to Australia where he said as follows:
…It seems extraordinary that she was wanting to completely avoid Mr Janome and yet she moved back into the same area and was spotted crossing the road…[8]
[8] Page 12 of the Expert Report.
There are factual errors in the report. Dr B stated as a fact that the mother called the police in 2015. He also stated that she called the police because she felt sidelined. The mother did not call the police and nothing in what she said to Ms D, who did call the police, justify a comment that the mother felt sidelined.
Dr B drew adverse conclusions about the mother’s thought processes based on factual errors. For instance he translated the mother’s fear about the father harming himself, which I described earlier and which led to her calling Dr E, into a fear by the mother of being left alone. There is no basis for that comment.
Dr B referred to the father’s reports of the mother forgetting her handbag and failing to hear a boarding call on one occasion as if they were significant pieces of evidence. When I first read the report my immediate thought was, “If that’s going to lead to a diagnosis of mental illness or a psychiatric condition, we’re all in danger of being diagnosed as having that.”
Dr B mentioned five times in his report that the mother alleged that the father had installed CCTV cameras in the house and ended by saying that he didn’t know what to make of that claim.
If he had asked the father about it the father would have admitted that the cameras were there. FACS workers saw them when they visited the home in 2015.
Another error of fact is in lines 1054 to 1057 in relation to Ms C and there is a statement in line 1299 which is completely without foundation.
Dr B said that the mother had reported in her affidavit that the father took her to see Dr F where she was diagnosed with low IQ, cognitive function difficulties, personality disorder and psychotic illness. The mother didn’t say that; the father did.
I have some concerns about Dr B’s understanding of family violence given his comment that the mother interpreted the banging of a door as being abusive.
Finally Dr B used an outdated version of DSM-V in regard to paranoid personality disorder.
All those matters raise significant concern about whether I can place any weight on the conclusions in the report but the greatest concern is the use he made of the information the father provided about the mother seeing Dr F.
The father told Dr B that the evidence he gave in his 12 January 2017 affidavit about what had happened on that occasion was not completely accurate but he still maintained that there was a diagnosis. Dr B then said in his report that Dr F had come to a clinical opinion that the mother had a possible psychiatric condition and went on to propose that she might have a paranoid personality disorder.
He said as follows:
I formed the view that Ms Janome did have a paranoid personality disorder. The differential diagnosis is a psychotic paranoid disorder although I wasn’t able to determine whether it reached a degree of being delusional. The behaviour of paranoid personality disorder with hypersensitivity leads to misinterpretation of the motivation of others and the feeling of being persecuted and the intentions of others are to harm her. This is reflected in the way she responded to the appointment with Dr F. Mr Janome had arranged for her to be psychiatrically assessed but Ms Janome interpreted the intention of this as wanting to remove the child from her or have her committed involuntarily as a psychiatric patient. She was very suspicious and was continually going to the neighbours to then call the police. She felt that there was a collusion between her husband, Dr F and the mother-in-law to exclude and undermine her.[9]
[9] Page 38 of the Expert Report.
Dr B conceded at trial that things like this undermined his report. He conceded that his conclusions might have been different, both as to diagnosis and recommendation, if he had known about the cameras and the Ms C issue. He also conceded that he had not considered some matters such as the mother’s comment about feeling looked down on as a divorced person from a cultural perspective.
I can place no weight at all on Dr B’s opinion about the mother’s mental health or on his report, and not only can I place no weight on it, for reasons I am going to refer to later the report has done real harm, not just in the context of this trial but outside of it.
There is no evidence that the mother has a mental health issue of any kind, let alone a mental health issue which might impact on her parenting capacity, and it is of considerable concern to me that during final submissions the Independent Children’s Lawyer was critical of the mother for not seeking counselling when, as a result of this fundamentally flawed report, people had been urging her to seek assistance for her non-existent paranoid personality disorder. It is not likely that in those circumstances the mother would have been able to put aside her concerns that she was being mislabelled and readily seek out counselling.
The father said nothing during the trial to suggest he had a glimmer of understanding about the harm he had done by helping to create this false view of the mother. There was also nothing in submissions to suggest that he resiled from the position that the mother had a mental illness.
The Independent Children’s Lawyer did not peg her hat on the report of Dr B. She argued that the way the mother dealt with some allegations which emerged in the second half of 2018 were relevant but I am going to discuss those in the risk of harm section of the judgment.
In summary, I am not satisfied that there is any reason to find that the mother is incapable of providing good care for [X]. It is different care to the father’s. They are different people but they are both capable of providing good care for the child, subject to concerns that I will refer to later about the father’s attitude to the mother.
I must consider the child’s maturity, sex and background.
The child is Indian but so are both parents. The father wants to prevent the mother taking the child to India for visits. I will deal with that later as a separate issue.
I must consider issue of family violence.
The mother made allegations about behaviour by the father that came within the definition of family violence. She said that he would get very angry about the state of the house and would shout, that on one occasion he threw a stool at her which did not hit her and that he walked out of the kitchen banging the door so hard the handle flew off.
The mother alleged that the father verbally abused her and that on one occasion he became angry and pushed her head into the wall behind her. She alleged that in October 2015 he raised his hand as if to hit her after an argument over whether she could use the internet and the modem fell off the table. There is reference to that allegation in an email the mother sent to a friend at the time.
The mother also alleged the father did not always let her use the internet to contact her family and that he was financially controlling.
The mother would go next door and talk to Ms D and tell her about some of her concerns and ask to use her internet so that she could contact her family. Eventually Ms D called the police who visited the home and following that, in or about October 2015, the father installed CCTV cameras in the house.
I am not sure whether there were three or four. At trial I was told there was one in the kitchen, one in the hallway and one in the living area. The mother said in her affidavit there were two on top of the fridge and two near the television and that wires were connected to the guest room where the paternal grandmother slept. FACS saw three CCTV cameras. They said that there was one on top of the fridge looking down the hallway. I cannot recall where they said the other two were.
There is no doubt that the father installed CCTV cameras in the house and there is no doubt that the mother found the presence of the cameras intimidating. She commented on this to Ms D at the time.
The father said that the cameras were there for his protection and that they simply recorded and he did not view the footage remotely. The mother said she thought that he did view the footage remotely.
It would be unsafe for me to make a finding one way or the other about that given that I cannot see the cameras, cannot see the program and do not know on what basis each of the parents made those assertions. However the cameras were on 24 hours a day on the father’s own admission, so they were on when the father was not home, and there is no doubt that the mother found them intimidating.
The mother also claimed that after [X]’s birth the father began restricting her food, called her names, dictated to her what she could eat and took photos and videos of her.
Some of those allegations were discussed with FACS during their visits to the home in late 2015. The father denied the allegations. He could not deny having put the cameras there but he denied that he had been violent or abusive toward the mother in any way.
The father’s evidence was that the incident where the mother’s head was pushed was an occasion when he put his finger on her forehead saying, “Use your head” and he demonstrated that in the witness box. He denied limiting the mother’s food.
One thing the father could not deny, and it is relevant because it comes within the definition of family violence, is that he controlled the mother’s access to money. She had no access to a bank account. The only way she could have obtain money was to ask the father for it and he then gave her some cash.
In summary the father denied most of the allegations except for the cameras and he couldn’t deny the financial control aspect of things.
The father said that I should be very cautious about placing any weight on the mother’s assertions about family violence because on 14 November 2015 she prepared and signed a statutory declaration withdrawing any allegations of family violence. However he said in his affidavit that he asked her to do that and it is not uncommon for people to waiver between complaining about the other parties behaviour and trying to save their marriage and that is what the mother said happened in this case.
It was also suggested in cross-examination that some of the mother’s complaints about violence were inconsistent with her later agreeing to the father spending time with the child. I do not accept that. One thing does not follow from the other.
Making findings about allegations in this area is often difficult. I found the mother a generally credible witness and I had significant concerns about the father’s evidence but in terms of the allegations about the physical abuse I am reluctant to make a finding on the balance of probabilities that violence occurred.
There is some evidence of temper and loss of control but the issue of exactly what happened on a particular occasion was not drilled down into. People can accidentally do things. They can do things more forcefully than they intended. I am not prepared to make a finding on the balance of probabilities that physical violence occurred.
However some aspects of the father’s behaviour do come within the definition of family violence in s. 4AB of the Family Law Act which provides as follows:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a)     an assault; or
(b)     a sexual assault or other sexually abusive behaviour; or
(c)     stalking; or
(d)     repeated derogatory taunts; or
(e)     intentionally damaging or destroying property; or
(f)      intentionally causing death or injury to an animal; or
(g)     unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)     unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)      preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)      unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.[10]
[10] Section 4AB of the Family Law Act 1975.
There is no doubt that the mother was denied financial autonomy while she lived with the father in Australia.
The other aspect of the father’s behaviour which I consider constituted family violence, and remember the things in s. 4AB are only examples, was the installation of the CCTV cameras, which were installed so that they covered the main living areas of the house, the kitchen, hallway and living room. They were on 24/7. The mother found them intimidating.
Another act of the father’s which constituted family violence in my view although this issue was not discussed at trial, was his behaviour in relation to Ms C. Stalking is family violence and when the father asked Ms C to secretly report to him about things the mother was doing, that was stalking.

However in terms of what happened during the marriage, which was the focus of the evidence and submissions before me, I am satisfied that there was some family violence in the form of denying the financial autonomy and the installation of the cameras which was intimidating.
The father asserted a small act of family violence by the mother. He asserted that she smashed the modem. Ms D’s evidence undermined that. He also alleged that the mother would shout at him.
I am not satisfied the mother perpetrated any family violence during the relationship.
I do however want to observe that placing a family violence label on some of the father’s behaviour label does not greatly assist me to determine this case. My concerns are more about the father’s attitude to the mother and the behaviour which I have labelled family violence is part of the reason I have those concerns.
It was not submitted and nor do I find, and I will give some reasons for this later, that the child was at risk of being exposed to family violence in the father’s care at the moment. I have made findings about the allegations because I am obliged by the Family Law Act to do so but I am not convinced in this particular case that placing that label on that behaviour is helpful in terms of determining the case.
I must consider whether there have been any family violence orders and there have not.
I must consider the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents.
It will not help me to discuss that as a separate issue.
I must consider whether it is preferable to make the order least likely to lead to further proceedings.
One of the submissions by the Independent Children’s Lawyer was that given the occasions when the child had been taken to a hospital or videoed by the mother in the context of purported allegations in the last few months of 2018, there was a high likelihood of further proceedings if I placed the child primarily with the mother because those sort of allegations and behaviour would continue.
I am not sure I entirely follow that, because the child is going to be spending substantial and significant time with the mother regardless. I am not convinced I can identify which order is least likely to lead to further proceedings. Both parents propose that they will each remain a substantial and significant part of the child’s life. Things could go wrong. I cannot necessarily predict how and why.
I then have to go back to the primary considerations and the first of those is the benefit to the child of having a meaningful relationship with both of his parents.
[X] will have that opportunity if he spends a reasonable amount of time with each of his parents and it does not matter whether he spends more time with one or more time with the other. He will still have the opportunity, if he sees each of them regularly, to have a meaningful relationship with them both.
However his opportunity to have a meaningful relationship with his mother could be compromised if the father has an extremely poor attitude to the mother, continues to promote the idea that she has a mental illness and shows a lack of respect for her and a lack of understanding of the fact that people are different and that their housekeeping standards and ways of caring for a child are different.
If the father has a poor attitude to the mother and does not let go of some of his beliefs about her, there is a risk that [X]’s relationship with the mother could be undermined if he spends more of his time with his father than with his mother.
The mother does not lack respect for the father. She readily agreed to the father spending time with [X] as soon as the father realised the mother was back in Australia and asked to spend time with him. The fact that she would not initially agree to as much time as the father wanted is not a reason to be critical of her given [X]’s age and the history of his care. There is also ample evidence in the mother’s affidavit of text message exchanges between the parties changing times around when the father requested it.
There is no evidence that the mother denigrates or disrespects the father. I do not have that same concern that [X]’s relationship with one of his parents will be impacted on by a poor attitude if [X] lives primarily with the mother.
The second primary consideration is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
There is no evidence that the mother is likely to neglect the child. Neglect is a very serious form of not looking after a child. There is also no evidence that the child is likely to be exposed to family violence in her care but the Independent Children’s Lawyer suggested, if I understand her case correctly, that the child might be abused by the mother.
Abuse has a very particular definition in the Family Law Act.
It includes sexual assault and nobody is alleging that is going to occur. It includes involving the child in sexual activity and that is not alleged. It includes serious neglect but that is not alleged.
However it is also defined to mean causing the child to suffer serious psychological harm, including but not limited to when that harm is caused by the child being subjected to or exposed to family violence.
The Independent Children’s Lawyer’s case seemed to be that the mother repeatedly taking the child to a hospital to be checked out and making a complaint about Mr R, when looked at as a group of incidents, indicated that the mother was subjecting the child to abuse in that the child was being placed at risk of serious psychological harm.
There are a number of problems with that position.
There were certainly two occasions towards the end of 2018 when the mother took the child to hospital and a third instance where the child was interviewed by the Department after the mother made a call to a helpline and somebody reported it to the Department but the incidents were not all the same. They were all different and the first incident I am going to refer to involves another example of the father giving quite misleading evidence in his affidavit.
On 7 November 2018 the mother took the child to the hospital after he came home with a lump on his head. The father said as follows about that in his affidavit:
On 7 November 2018 Ms Janome admitted [X] to Town A Hospital.
Ms Janome alleged that [X] was suffering from “child abuse”. [X] was reviewed by doctors who found no evidence of any child abuse.[11]
[11] Paragraphs 177 & 178 of the father’s affidavit.
That is hugely misleading on a number of levels.
The mother produced a number of exchanges with the father. I think they were text messages but if they were something different like emails that is really of no great moment. There were a number of communications between the mother and the father about this prior to the mother taking the child to hospital. The child had come back from spending time with the father and the mother told the father the child had a lump on his head which was very sore and repeatedly asked the father if he was aware of what had happened to the child or whether something had happened to the child.
She sought his assistance to try and deal with what she said was discomfort for the child in relation to that and the father kept saying, “Take the child to hospital.”
Eventually the mother did and the child was seen and the hospital did not observe any problem for the child that needed any particular treatment.
So one concern is that the father did not reveal that the mother took the child to the hospital after the father repeatedly urged her to do so but the second concern is the misuse that was made of the discharge summary, because what the discharge summary says at the top of it is that the child was brought in with an allegation of “welfare/safeguarding concerns”.[12]
[12] Annexure “G” of the father’s affidavit.
No direct report from the mother is recorded and no form was filled in where the mother said, “This child has been abused”. There is a real possibility that the mother might have gone in and said something like, “He has been at his father’s. He came back with this injury. The father says he doesn’t know how he got it. I want you to have a look at it” and then the hospital used the words “child abuse/inadequate supervision”.
Under that on the discharge summary there is a letter in which only the words “child abuse” are used but the mother cannot be blamed for that. There is nothing to suggest that she made a direct report to the hospital saying, “My child has been abused.”
I am concerned about the way the father reported this incident. I am concerned about the submissions by the Independent Children’s Lawyer which do not recognise the complexity in the discharge summary. I cannot make a finding that the mother did the wrong thing or subjected her child to serious psychological harm because she took him to hospital on that occasion.
There was a second occasion when the mother took the child to the hospital alleging that someone called Mr S may have hurt the child while in the father’s care. There seems to be limited information in there about exactly what happened on that occasion. The child was X-rayed or his penis or his stomach was X-rayed. The mother said that she emailed the father about that.
That is a separate issue to the child being taken to hospital on 7 November. I am not sure what to make of that incident but it does not inherently involve a suggestion that the father abused the child. The mother took the child in because she considered there was something needed to be investigated. He was X-rayed. No problem was found. He was sent home. Dr B in cross-examination said he did not think that being taken to hospital and X-rayed would have had any significant psychological impact on the child.
Then there is the third issue which again is completely different issue. The mother alleged that in the latter part of 2018 the child began making comments to the effect that a man called Mr R having touched him inappropriately. She ultimately rang the helpline for advice and the helpline contacted the Department. As a result the child was interviewed by the Department and the police.
The child repeated his allegations in some form to the police but he is only three and a half years old and there was nothing the police could do with that and there the matter ended in regard to the investigation of a complaint concerning Mr R.
To an extent the police and the Department properly investigated that incident and it is a completely separate incident to the other two, because the reality of the world in which we live is that adult males sometimes sexually abuse children and when these allegations are made they need to be properly investigated.
However what the Department did, and I am not sure why they did it and I am not going to speculate or inquire about it, is that they began asking the mother for a copy of Dr B’s report. They didn’t get it from the mother so they sent in a s. 128 request to this court and obtained it from this court.
Once they got it they proceeded as if the mother had been correctly diagnosed as having a paranoid personality disorder. They pestered her about why she was not accepting treatment and why she was not accepting the findings in Dr B’s report. Even worse, they made a finding that the child was at risk of psychological harm from the mother and if you have a look at the FACS material it was not because she had made a complaint about Mr R but because of the content of Dr B’s report and because of their conclusion that the mother had a mental illness. I am frankly appalled about that.
Leaving that aside there is no suggestion in the material that the Department did not independently properly investigate the allegation about Mr R. They interviewed [X]. They talked to Mr R. That is probably all they could have done with a three and a half year old. However the use made of the report was appalling.
The Independent Children’s Lawyer added those three incidents together, the one where the mother took the child to the hospital after the father urged her to do so after she had some concerns; the one where the child was taken to hospital and X-rayed; and the complaint about Mr R, and asked me to find that the child was at risk of psychological harm in the mother’s care.
I do not accept that.
Some of the mother’s handling of what happened with Mr R was not good. The video she made was not good and the police told the mother that but as I commented during submissions she is not the first person to do that and she won’t be the last.
The other thing that was not good in the way the mother handled that matter was that she should have told the father that [X] had made the allegations about Mr R. That would have been properly protective of [X] because that man is a member of the church. I am not suggesting Mr R has done anything wrong, but if the allegations were validly made by [X] as it appears they were, the mother should have told the father about it.
Those things were not good but the decisions the mother made about not telling the father and about following somebody to try and make sure the child was not going to Mr R’s house rather than asking the father up front if that was happening, were made against a particular background.
The mother had returned to Australia in mid-2016. In October 2016 she willingly agreed to the child spending time with the father. In January 2017 the father applied for residence of the child after having ignored the mother and the child for most of the period between December 2015 and September 2016. He filed an affidavit containing inaccurate and false evidence about the mother’s mental health. He got in Ms C’s ear and she started reporting to him about the mother.
That is the background against which the mother, from that point on, has made decisions about what to do in relation to the child.
Some of the things she did in respect of the allegations about Mr R and perhaps even her concerns about the toilet training were not ideal. In an ideal world she should have discussed those with the father. She should have discussed the toilet training issue better with the father. She should have told the father about Mr R.
However I have to consider her behaviour and her choices against the background of what had happened and the pressures she had been under since January 2017, and that pressure is recognised by the Department in their notes. They referred to the pressure the mother felt herself under as a result of the Family Law proceedings.
I am not satisfied that the mother has psychologically abused the child and I am not satisfied that she is at risk of psychologically abusing him in the future or to put it another way I am not satisfied that she is likely to abuse the child in terms of causing him serious psychological harm. I do not consider that the three incidents relied on by the Independent Children’s Lawyer establish that.
I do not consider the child is at risk of abuse, neglect or family violence in the care of either parent. I am concerned about the father’s behaviour with Ms C. It could come within the definition of stalking. However since that time there has been some water under the bridge and the parents have managed their changeovers. They have had some communication which has been civil. That is attached to the mother’s affidavit. I am not satisfied there is risk now of family violence occurring between them or that the child is at risk of abuse, neglect or family violence in the care of either of them.

Dr B’s recommendations

Dr B said as follows in his report:
I recommend that the father should take over as the residence of the child as he is the more competent parent and appears to have the primary attachment to the child. I believe that a reverse arrangement where the child should have contact with the mother 2 or 3 days a week would be appropriate. As the child grows and becomes more involved in day-care and later in school then the arrangement would need to modify to perhaps fortnightly weekend contact and a school holiday contact.[13]
[13] Page 39 of the Expert Report.
However Dr B’s opinion of the mother has no validity and his opinion about the father as a person cannot be given weight due to the father not revealing to Dr B things such as placing the CCTV cameras in the home and persuading the mother’s friend to betray her.
The father’s Counsel submitted that I should still place weight on the recommendation that the child live primarily with the father because I should place weight on Dr B’s opinion about the child being primarily attached to the father. He submitted that could still stand even if other bits of the report were cut away.
For reasons given above I do not accept that. The child is attached to both his parents, something they both recognise. I cannot place weight on Dr B’s recommendation. It does not assist me to resolve what I am going to do in this case.

Parental Responsibility

I have to consider the issue of parental responsibility. The mother sought equal shared and the father sole.
S. 61DA of the Family Law Act provides that there is a presumption that the parents should have equal shared parental responsibility absent a finding that one of the parents has engaged in abuse of the child or family violence.
I am satisfied some family violence occurred and the presumption does not apply but I can still make an order for equal shared parental responsibility if I choose to do so.
Sometimes it is essential to make a decision about parental responsibility before a decision is made about where the child lives, because if I make an order for equal shared parental responsibility, s. 65DAA of the Act is engaged, and if I do not it is not.
However in this particular case it is not critically important for me to make this decision first, although I am going to, and I say that because neither party proposed equal time at trial and they each proposed that the child spend substantial and significant time with them and the s. 65DAA pathway will not help me.
However I am going to make a determination about parental responsibility before I make an order about where the child should primarily live.
The mother proposed equal shared parental responsibility. It will probably will not be easy for the parents to make that work. They are obviously very different people. They did not know each other well at all before they started living together and when they started living together they found there were things about each other they did not like.
However they have some capacity to communicate. On the occasion when the child had the lump on his head, the 7 November incident, there was a lot of communication. The mother contacted the father. She sought his advice and assistance. She provided some evidence in her affidavit about other communications the parties had had in which they had changed arrangements. Quite a lot involved complaints about arrangements but there were some when they agreed to change them.
The parties are both intelligent, educated people. They are both Indian, so they have got a common background in that regard. They are both Catholics, so there will be no issue with religious upbringing. They agree that the child should attend a Catholic school and they will both be spending significant time with the child.
Although equal shared parental responsibility is not going to be easy for these parents to exercise in my view it is what I should order.
An order for the father to have sole parental responsibility would be detrimental for the child. The father has behaved in a very disrespectful way to the mother. He has behaved in a way which has undermined her in the eyes of friends and now former friends and undermined her in the eyes of authorities. He did not resile at the end of the trial from his case that the mother had a personality disorder, even though he must have begun to wonder what weight could be placed on Dr B’s opinion.

There is a considerable risk that if the father is given sole parental responsibility the mother will be relegated to a very inferior place in the child’s life, and a risk that incorrect views about her may continue to circulate, because if I give the father residence and sole PR how is the fact that Dr B misdiagnosed her to gain any traction? Everyone, including the authorities, is likely to continue to think it has merit.
The father is not the fount of all wisdom in relation to this child. The child is only 3 ½. Whether it was necessary or appropriate for him to see a dietician or whether it is necessary and appropriate for him to see a child psychologist at that age has to be seriously open to question.
The mother has much to offer the child as does the father. He is also an intelligent, upstanding member of the community and it is not appropriate in this case that one parent be cut out of decision-making so that their voice is not heard and the other parent is put in charge. The parents are not going to find it easy to share parental responsibility, but it is far too soon to give up on them being able to make that work.
I finally note the Independent Children’s Lawyer made what I considered to be a somewhat extraordinary submission, namely that if I made an order for equal shared parental responsibility it did not matter greatly because if the child lived with the father he would have greater standing to make decisions.
I am mystified about where that comes from given s. 65DAC of the Family Law Act but in any event I am going to make the order that the parents have equal shared parental responsibility.

Conclusion

The Independent Children’s Lawyer advocated for the father to become the primary carer. She did not attempt to persuade me that weight should be placed on Dr B’s report. She agreed that the father had treated the mother shabbily in some respects and that there had been some family violence by means of him intimidating her with the cameras. However she said that this was not about the parents, it was about the child, and [X] would be better placed in the father’s primary care.
The Independent Children’s Lawyer submitted that the child was at risk of psychological harm in the mother’s care because of the way she had reacted to injuries to the child and information conveyed by the child in 2018. She conceded that given that the mother would still be seeing the child four days a fortnight a change of residence did not completely address the risk of psychological harm, but she still advocated for the change and ended by saying that the advantage of it was the father had greater standing in the community.
I frankly find that latter submission somewhat appalling. It troubles me greatly and I do not know where it came from. I wonder what the father’s standing in the community would be if some of his actions toward the mother were known, such as installing cameras in the house and arranging for one of her friends to betray her. However leaving that aside it is not a sound basis to make a significant change in parenting arrangements for a child. Standing in the community is not a relevant s. 60CC (2) and (3) factor.
For reasons given earlier I do not accept that the child is at risk of abuse, neglect or family violence in the mother’s care. He is being adequately cared for by the mother. He is bonded to her just as he is to the father. He must be, or the father would not be proposing that he spend three nights a fortnight with her and later four.
I cannot rely on Dr B’s opinion that the child has a greater attachment to the father. The mother is not working and is available to care for the child. I accept that the father could make appropriate arrangements for the child’s care but absent risk there is no benefit to this child in upsetting his current care arrangements.
The mother is the person who has been willing to provide consistent care to this child throughout his life. She cared for him for the first 15 months of his life and the father did not trouble himself about the care the mother was providing or even attempt to make arrangements to see the child for almost a year. The mother has primarily cared for the child since he returned to Australia and he is a healthy, well-grown child.
There is a considerable risk that if the child is placed with the father the invalid psychiatric assertions about the mother will continue to be given credence. Most people are never going to read this Judgment or know the full story and the former friends of the mother will feel vindicated. There is a real risk of the mother being vilified and marginalised in this child’s life if I make an order that the child live primarily with the father and that is not in the child’s best interests. Even the father agrees that she should have a significant role in the child’s life.
The orders I am going to make are that the current arrangements continue and that the child live primarily with the mother and spend time with the father in accordance with the mother’s proposal and I am going to make that order because one of the things the Independent Children’s Lawyer asked the father in cross-examination was whether if the child lived with the mother he would be happy to spend time with the child as the mother proposed and he said yes, and it is substantial and significant time, so that is what is appropriate.[14]
[14] After further discussions during submissions a modification was made to the arrangements during the Christmas school holidays and the orders reflect that agreed modification
I will go over the orders in a moment but I will just quickly come to the issue of overseas travel.
The father proposed that the child be placed indefinitely on the Watch List.
One of the things that concerns me about that proposal is that the part of his affidavit dealing with this issue contains yet another example of concerning inaccurate evidence.
Under the heading “Family Law Watchlist” the father said this:
I am concerned that if Ms Janome is not successful in her application she may try to again flee with [X].[15]
[15] Father’s Affidavit paragraph 195
The mother has never fled anywhere with [X]. The father paid for a one-way ticket so the mother could go to India. I am concerned about that paragraph even appearing in the affidavit.
There is no evidence that the mother has ever threatened to take [X] overseas and retain him there and not return. The father does not allege it. She has never fled with the child. She went to India with the father’s full consent. Finally she is not going to be disappointed with the outcome so that removes another plank from the father’s concerns.
The mother is very strongly attached to her family. Unlike the father she has lived on the Indian subcontinent for most of her life, except for the time she has been in Australia. Her family live there.
I am not going to make an indefinite Watch List order. There is simply no basis for me to do so and to prevent the child and the mother from being able to travel to India to spend time with the mother’s family and I am not going to make an order when there is no good reason for me to make.

I certify that the preceding two hundred and eighty seven (287) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date: 23 April 2019

[2019] FCCA 1036

10 April 2019

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies