Janome & Janome
[2022] FedCFamC1F 90
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Janome & Janome [2022] FedCFamC1F 90
File number(s): NCC 104 of 2017 Judgment of: AUSTIN J Date of judgment: 28 February 2022 Catchwords: FAMILY LAW – CHILDREN – PARENTING – With whom the child shall live – Where final parenting orders were previously made for the child to live with the mother and spend time with the father – Where current proceedings commenced by the father due to the mother’s refusal to allow the child to spend time with him – Where both parties seek sole parental responsibility and the child’s residence – Where mother alleges the child is at unacceptable risk of harm from sexual and physical abuse in the father’s care – Where the mother alleges the child has been sexually abused by the father and other men – Where the father has repeatedly denied the allegations – Where the mother’s allegations not substantiated by the evidence – Where the mother failed to establish the father poses any material risk of harm to the child – Where the father alleges the child is at unacceptable risk of emotional harm in the mother’s care – Where it is found the child has suffered psychological harm in the mother’s care and requires protection from further psychological harm – Where the presumption of equal shared parental responsibility is rebutted – Ordered that father have sole parental responsibility for the child – Child live with the father and only spend time with the mother as determined by the father as an incident of his exclusive parental responsibility – Restraint on mother coming into contact with the child without the express written consent of the father – Father to engage a therapist for the child – Child’s name to be placed on the Airport Watch List for 12 months. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA 65D, 65DAA, 65DAC, 65DAE, 65Y Cases cited: Bondelmonte v Bondelmonte (2017) 259 CLR 662
RCB v The Honourable Justice Forrest (2012) 247 CLR 304
Division: Division 1 First Instance Number of paragraphs: 122 Date of hearing: 14, 16 & 17 February 2022 Place: Newcastle Counsel for the Applicant: Ms Ticehurst Solicitor for the Applicant: Arnold Lawyers Counsel for the Respondent: Ms Kaiti Solicitor for the Respondent: Tee Legal Counsel for the Independent Children's Lawyer: Ms Lioumis Solicitor for the Independent Children's Lawyer: Legal Aid NSW, Newcastle ORDERS
NCC 104 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR JANOME
Applicant
AND: MS JANOME
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
28 FEBRUARY 2022
THE COURT ORDERS THAT:
1.All former orders in respect of the child X, born 2015, are discharged.
2.The father shall have sole parental responsibility for the child.
3.The child shall live with the father.
4.The father shall forthwith engage a therapist at his expense, for as long as the therapist deems necessary, to counsel the child to assist his adjustment to residence with the father, the loss of interaction with the mother, and the allegations of his abuse by the father, for which purpose the father may provide to the therapist copies of:
(a)these reasons for judgment; and
(b)the Family Report dated 5 August 2021.
5.Pursuant to s 68B of the Family Law Act 1975 (Cth), without the express written consent of the father otherwise, the mother is restrained from entering upon or approaching within 100 metres of:
(a)the child;
(b)the father’s residence; and
(c)any school attended by the child.
6.The parties are restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.
7.The father shall notify the mother of any medical emergency, illness or injury suffered by the child warranting his professional treatment and shall authorise any treating health professionals to communicate with the mother about the condition and treatment of the child.
8.The father shall authorise and request the principal of any school attended by the child to provide to the mother, at her expense, copies of all school reports and school photograph order forms relating to the child.
9.The parties shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number and email address.
10.In the event of either party making or learning of a report being made to notify either the police or a prescribed child welfare agency that the child has been or is the subject of actual or potential abuse, leave is granted to the parties to provide to the police or child welfare agency copies of:
(a)these orders; and
(b)these reasons for judgment.
11.The mother shall forthwith surrender to the father the child’s passport.
12.The mother is restrained from removing and/or causing or allowing, by her agents or otherwise, the child’s removal from the Commonwealth of Australia, and it is requested that the Australian Federal Police give effect to this order by placing the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and to maintain the child’s name on that Watch List for a period of 12 months.
13.The parties shall forthwith cause the child to be delivered to the Senior Court Child Expert at the Newcastle registry of the Federal Circuit and Family Court of Australia (Division 1) to have explained to him the effect of these orders, and if deemed appropriate by the Director, the reasons for such orders.
14.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
15.The Independent Children’s Lawyer is discharged upon the latter of the determination of any appeal or the expiration of the applicable appeal period.
16.Any and all other outstanding applications are dismissed.
NOTATION:
These orders intentionally make no provision for the child to spend time or communicate with the mother. If, when and how the child is eventually able to do so will be determined by the father as an incident of his exclusive parental responsibility for the child.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Janome & Janome is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
These proceedings represent the second round of litigation under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) between the parties over their only child.
The first proceedings began in January 2017 and were concluded by orders made by the Federal Circuit Court of Australia (as the Court was then known) in April 2019 after a contested trial.
The current proceedings were commenced by the father not long afterwards in November 2019 as a consequence of the mother’s refusal to allow the child to spend time with him, contrary to the existing orders.
The parties disputed all aspects of the child’s care. Such was the state of the parties’ antipathy that each applied for orders directing that the child neither spend time nor communicate with the other. However, the father was at least willing to countenance some form of future relationship between the child and the mother.
The mother contended the child was at unacceptable risk of harm due to his potential sexual and physical abuse while in the father’s care. Conversely, the father proclaimed he posed no risk of harm to the child at all, but rather the mother’s conduct in rupturing the child’s relationship with him was and would remain emotionally abusive to the child.
The mother failed to establish the father poses any material risk of harm to the child, whereas the evidence established the mother actually does cause the child emotional harm. The essential decision then devolved to whether the child should bear the emotional distress of the reversal of his residence for his long-term benefit or whether the intensity of such distress militated against any change to the status quo. The first option prevailed.
BACKGROUND
The parties met online in about 2013, when the father lived in Australia and the mother lived in India. The father travelled to India to meet the mother and they married there in 2013, shortly after which the father returned alone to Australia.
The parties commenced cohabitation about a year later, when the mother came to Australia in December 2014.
The child was born in 2015. He is now six years of age.
The parties separated in December 2015.
Almost immediately afterwards, the mother took the child to India, where they stayed for several months. Upon their return to Australia, the parties consensually arranged for the child to commence spending time with the father from about October 2016.
The father first commenced proceedings in January 2017. In those proceedings, even though the parties contested the child’s residence, the mother acknowledged they should have equal shared parental responsibility for the child and it was agreed the child should spend substantial time with the non-residential parent. Those proceedings were concluded in April 2019 when orders were made for the parties to have equal shared parental responsibility, for the child to live with the mother, and for the child to spend time with the father.
From September 2018, the mother began intermittently reporting to the State child welfare agency her concerns about the child’s sexual abuse by her former neighbour (Mr R), the father and other unidentified men, as well as the father’s physical and emotional abuse of the child. In all, about a dozen reports of such abuse were made in the period between September 2018 and September 2020. The reports were investigated by the child welfare agency and, in December 2019, some of the more recent reports about the father were substantiated, though he contended the decision was dubious and ought to be disregarded.
The issue of the child’s alleged abuse was an increasing irritant and eventually, in about October 2019, the mother acted upon her concerns by severing the child’s contact with the father. The father responded by commencing these proceedings in November 2019 in the Federal Circuit Court of Australia (as the Court was then known).
In December 2019, interim orders were made suspending the orders made in April 2019, though the Court intended that the issue of the child’s interaction with the father would be given further consideration on the next return date (Order 3 made on 10 December 2019). For reasons which are entirely unclear, that never occurred, even though the proceedings were back before the Court on many subsequent occasions. Not even the parties’ separate interim applications, later filed in September 2020 and November 2020, were entertained.
The child welfare agency withdrew from the proceedings in December 2020, having intervened only months before in March 2020, and the proceedings were then transferred to this Court for determination.
In September 2021 the proceedings were fixed for trial in February 2022.
THE PROPOSALS
The father moved on the Amended Initiating Application he filed on 29 October 2021. He seeks sole parental responsibility, the child’s residence, and a declaration that the child neither spend time nor communicate with the mother.
The mother moved on her Amended Response filed on 29 October 2021. She seeks sole parental responsibility, the child’s residence, and a declaration that the child neither spend time nor communicate with the father.
As can be seen, the parties ran extreme cases and the stakes were high.
The Independent Children’s Lawyer (“the ICL”) began the trial without forecasting any particular inclination, but at the close of evidence tendered a minute of proposed orders,[1] which was closely aligned with the position adopted by the father.
[1] Exhibit ICL1
THE EVIDENCE
The father relied upon:
(a)his affidavit sworn on 20 December 2021;
(b)the affidavit of the mother’s former neighbour, Mr R, filed on 20 December 2021; and
(c)the affidavit of his partner, Ms T, filed on 20 December 2021.
The mother relied upon:
(a)her affidavit filed on 31 December 2021, as amended and supplemented by two tendered documents;[2]
(b)the affidavit of the maternal grandmother filed on 29 December 2021; and
(c)the affidavit of Dr U filed on 11 February 2022 (subject to an objection taken and conceded to some portion of the contents of Annexure B).
[2] Exhibits M1 and M2
The mother also sought to rely upon two affidavits filed by the child welfare agency’s two caseworkers much earlier in the proceedings, but leave to do so was refused since no satisfactory reason was advanced to explain why the procedural orders of Cleary J should be varied.[3] Besides, there was no suggestion the mother would be able to make the caseworkers available for cross-examination on their affidavits.
[3] Orders 3.2, 5 and 7 made on 28 September 2021
The parties and the ICL also relied upon:
(a)the Family Report prepared by the Family Consultant on 5 August 2021; and
(b)the Magellan Report dated 9 April 2021, provided to the Court by the State child welfare agency.
The ICL collated a tender bundle of documents pursuant to the procedural order made by Cleary J,[4] which was only provisionally received in evidence as an exhibit,[5] since the content of such source documents was already extensively covered by the commentary in both the Family Report and Magellan Report, about which there was no apparent factual controversy. The parties and the ICL conceded that any document within the tender bundle not mentioned during the trial, in either cross-examination or submissions, must not be relevant and could therefore be rejected. As it transpired, only 18 of 225 documents were mentioned, so they were separately tendered as exhibits[6] and the remainder of the tender bundle was removed from the court record as an exhibit.
[4] Order 5 made on 28 September 2021
[5] Provisional Exhibit A
[6] Exhibits A1 to A18
The mother sought to separately tender another bundle of documents at the commencement of the trial, but was disallowed. It amounted to over 300 pages, had not been shown to the father or the ICL until very shortly before the trial started, and was said to contain many documents which duplicated those among the tender bundle prepared by the ICL. The mother was invited to cull her bundle and later renew her application to tender it, but she did not do so.
LEGAL PRINCIPLES
Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).
The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.
In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.
CHILDREN’S BEST INTERESTS – PRIMARY CONSIDERATIONS
Section 60CC(2)(a)
No submission was usefully made about the application of this provision, which requires the Court to consider the benefit to the child of having a meaningful relationship with both parents.
It may be accepted the child enjoys a close and loving relationship with the mother and, while he also did so with the father until late 2019, that cannot be the case now. The absence of any interaction between them since October 2019 must have caused the meaningfulness of their relationship to have waned.
The child would surely benefit from reviving and maintaining his meaningful relationship with the father, presuming he is safe in the father’s care, but that can never happen whilst ever the child lives with the mother. Her genuine belief in the child’s sexual and physical abuse by the father deprives her of the capacity to support the child’s relationship with the father.
While the father sought orders which would conversely eliminate the mother from the child’s life, he was at least willing to countenance the prospect of some future relationship between the child and the mother.
The father deposed this in his affidavit:
95.The other issue is question of managing the potential need for [the child] to have a relationship with his mother. [The mother] has obviously being the primary carer for [the child] since birth and despite my disappointment with what has unfolded in terms of the opportunity given to [the child] and I to have a relationship, I acknowledge that his bond with [the mother] will at least at this point be stronger than with me. As such, I believe that it could be important for [the child] to have an opportunity to maintain a relationship with [the mother] where that remains safe to occur including, if need be, through supervised time between them.
The father’s counsel also foreshadowed this in his Case Outline document:
15.The grey area of the father’s case is whether or not any orders should be proposed for the mother to spend time with [the child]. If the father’s case theory is accepted, it would appear that the family consultant would not support a “spend time order”.
16.However, the father is open to exploring the options, such as supervised time after a period of settling in, subject to the expert’s evidence.
The father was not challenged in cross-examination about that evidence or those submissions. As the evidence stands, just as the Family Consultant foresaw,[7] it will surely be difficult for the child to have meaningful relationships with both parents, but that goal is easier to achieve if he lives with the father.
[7] Family Report at [359], [382] and [386]
Section 60CC(2)(b) – alleged sexual abuse
The evidence adduced about the child’s alleged sexual abuse by the father, Mr R and other adult males was extensive. Before embarking upon an analysis of such evidence, it is useful to state the relevant findings at this point: the evidence does not establish the child was sexually abused by anyone; nor does the evidence establish the child is at unacceptable risk of harm through sexual abuse by anyone. The mother’s beliefs otherwise are misconceived.
The first report of any suspicion about the child’s sexual abuse was made in September 2018, when the child was not yet three years of age. There was no clarity at all about the feared culprit. The mother’s apprehension arose merely from the child resisting being bathed by her, which involved him crying and covering his penis. The child welfare agency reports the complaint was “closed at Helpline”.[8]
[8] Magellan Report at p.4
Formal complaints were made about Mr R in January 2019 and June 2019, to the effect that he touched the child’s penis and “bum” and showed the child his own penis, though the mother said the child began making those allegations months before in 2018.[9] The report made to the child welfare agency implied the child had complained the abuse occurred while he was in the bath, since it was asserted the child was reluctant to bathe because of his disclosures.
[9] Magellan Report at p.4–5; Mother’s affidavit at [92]–[97] and [151]–[166]
In June 2019 and August 2019, formal complaints were made that the father was “performing sexual acts” with a woman in the child’s presence and then, in September 2019, it was reported the father had been touching the child’s penis.[10] Even though the mother alleged the child returned from a visit with the father in August 2019 experiencing pain, which caused her to inspect and observe some abnormality with his anus,[11] that allegation did not comprise any part of the mother’s reports to the child welfare agency about the father.
[10] Magellan Report at p.4–7; Mother’s affidavit at [116]–[119]
[11] Mother’s affidavit at [107]–[108]
The series of complaints about Mr R and the father between January 2019 and September 2019 resulted in the child’s formal interview by investigating officers on two separate occasions. No allegation was substantiated on either occasion and the mother was given to understand the case was closed.[12]
[12] Mother’s affidavit at [122]
The child was interviewed by officers on 22 January 2019 (“the first interview”), during which he said the father was a “bad man” and that Mr R had touched him on the “inside of [his] bum”, put his penis in the child’s anus, and touched the child’s penis. All of that physical abuse by Mr R supposedly occurred while the child was asleep,[13] not while has was in the bath as had originally been implied.[14] The officers acceded to the mother’s request to view video footage she showed them depicting her asking the child leading questions about the abuse, which led the officers to hold “concerns” about the child being at risk of psychological harm in the mother’s care.[15] The child welfare agency did not substantiate the allegations against either the father or Mr R.[16]
[13] Magellan Report at p.13
[14] Magellan Report at p.5
[15] Magellan Report at p.13–14; Family Report at [170]
[16] Family Report at [353]; Magellan Report at p.14
The child was interviewed again by officers on 24 September 2019 (“the second interview”). No disclosures were made during the interview. In fact, the child began the interview by saying the mother had told him to tell his teacher that the father was “bad”. The child said he liked going to the father’s home, where he had fun.[17] The officers consequently had “concerns” the mother was “coaching” the child and, again, the reports made to the child welfare agency over preceding months were not substantiated.[18]
[17] Family Report at [344] and [354]
[18] Magellan Report at p.14
More reports were then made in October 2019 and November 2019 of the child’s alleged sexual abuse by the father and two other unidentified adult males, which abuse was said to take the form of penile penetration of his anus.[19] Although the mother alleged the child also complained of his oral penetration,[20] that allegation was not reported to the child welfare agency. Those reports resulted in the child’s formal interview on three more occasions in December 2019.
[19] Magellan Report at p.7-9; Mother’s affidavit at [132]
[20] Mother’s affidavit at [135]
On 4 December 2019 (“the third interview”), the child alleged to officers the father had inserted his penis into the child’s mouth and anus. The child also alleged the father urinated in his mouth.[21] During the interview, the child acted out how he tried to resist the father exerting force upon him from behind.[22] Curiously, the child said nothing to the officers about being sexually abused by two other men in an unknown house to which he was supposedly taken by the father, as the mother had earlier reported.[23]
[21] Family Report at [77], [130], [264] and [355]
[22] Magellan Report at p.16
[23] Magellan Report at p.15
On 11 December 2019 (“the fourth interview”), the child repeated the allegations from the week before about his oral and anal penetration by the father’s penis.[24]
[24] Magellan Report at p.16
On 13 December 2019 (“the fifth interview”), the child again alleged his anal penetration by the father’s penis at the father’s home, but was unable to give any contextual details.[25]
[25] Family Report at [78] and [356]
Some days after the last interview, the child welfare agency determined that the father had “sexually harmed” the child.[26] It inferentially appears from the content of the Magellan Report that the child welfare agency reached that conclusion because: on a few occasions in October 2019, the child showed some resistance to, or hesitancy about, the father at his pre-school; the child repeated some of his disclosures to third parties without the mother being present; and the child demonstrated in his third interview a physical tussle with the father, which the officers discerned to be consistent with a re-enactment of his anal penetration.[27]
[26] Magellan Report at p.17, 18
[27] Magellan Report at p.15–17
Notwithstanding the mother’s severance of the child’s contact with the father in October 2019, she alleged the child continued to make allegations about his sexual and physical abuse by the father and other men in April 2020,[28] July 2020,[29] September 2020,[30] January 2021,[31] and June 2021,[32] which allegations even widened to include the father ejaculating in the child’s mouth.[33] The child also made unsolicited allegations against the father when consulting with the Family Consultant in July 2021.[34]
[28] Family Report at [83]
[29] Family Report at [84]
[30] Family Report at [86]–[88] and [350]
[31] Family Report at [93], where the reference to “2020” is a typographical error and should be “2021”
[32] Family Report at [102]
[33] Mother’s affidavit at [230]
[34] Family Report at [244], [248], [249] and [256]
The mother’s case hinged heavily upon the child welfare agency’s substantiation of the sexual abuse allegations against the father but, of course, the agency’s assessment does not bind the outcome of these proceedings. It is merely another piece of evidence, the probative value of which depends, in turn, upon three aspects of the evidence:
(a)the child’s disclosures of his sexual abuse, independently of the mother, to numerous third parties;
(b)his demonstration to officers of a physical tussle with the father which was perceived to be consistent with the father exerting force upon him from behind; and
(c)his resistance to contact with the father.
It is logical to start with those aspects of the evidence because the probative force of the evidence may be readily contained.
There can be no doubt the child made statements to numerous third parties in the mother’s absence which were critical of the father in some way or another. He did so to his pre-school teacher,[35] his psychologist,[36] hospital doctors,[37] the investigating officers during his last three interviews in December 2019, and the Family Consultant in July 2021.
[35] Family Report at [56], [261], [266], [304] and [306]; Mother’s affidavit at [130]
[36] Family Report at [74], [76], [263], [280] and [281]; Mother’s affidavit at [129]
[37] Family Report at [296] and [343]; Mother’s affidavit at [128], [130] and [133]
However, the Family Consultant was deeply wary about the reliability of the child’s reports, saying this in the Family Report in relation to the supposed independence of the disclosures:
249.Given the knowledge of multiple previous interviews with [the child], the Family Consultant did not ask [the child] any further questions regarding these disclosures. It is noted these disclosures have already been made to [the child welfare agency] and there was no new information contained within these disclosures. It was of concern to the Family Consultant that [the child] made these disclosures with no encouragement, no context and no distress exhibited by [the child].
…
268.[The child] has been interviewed by a number of professionals, including Health workers, Child Protection workers, Police Detectives and Psychologists. He has made unprompted and unsolicited disclosures to pre-school staff and Psychologists, without the presence of the mother. Concern has been raised about the lack of contextual detail provided by [the child] in his disclosures by JCPRP.
…
360.One of the concerns that came out of the child's interview with the Family Consultant was the child's willingness to make statements, which he has repeated before, regarding the father, despite the Family Consultant not asking questions about sexual abuse and not prompting the subject child to continue discussing these issues. Prior to commencing the interview with the subject child, the Family Consultant was acutely aware of the numerous interviews the subject child has had with [the child welfare agency] and JCPRP. The purpose of the interview with the Family Consultant was not to assess for sexual abuse but to assess the relationships the child has with people in his life, including the father. The Family Consultant has assessed children in a number of Magellan reports in the Family Court and no disclosure of sexual abuse has ever been made to the Family Consultant by children interviewed, due to the Family Consultant's sensitivity on this issue. This raises concern about the subject child's willingness to make such statements to a perfect stranger, without prompting and without questions on this topic, and does not seem consistent with a reported sense of shame or sadness, as reported by the mother and consistent with child sexual abuse victims. The subject child's statements in the interview with the Family Consultant lacked context and lacked specific information, consistent with previous interviews with the subject child with JCPRP. It was a further concern that [the child] appeared acutely aware of a reported family violence incident between the mother and the father, where [the child] had no direct involvement, and wished to provide the information to the Family Consultant, despite the Family Consultant not asking any questions on this issue. This suggests the mother had clearly provided this information to [the child], either recently or sometime in the past, which has been noted as an issue of concern by DCJ for both parents in the past.
(Emphasis added)
The Family Consultant was not challenged about the validity of those opinions, which are accepted as being correct. The child was primed to criticise the father to the Family Consultant, though his demeanour did not match such trenchant and unprompted criticism.[38] Despite his tender years, the child also referred to the father by his first name rather by the affectionate appellation “dad”, suggesting he has been encouraged to do so. The child presented to the Family Consultant in July 2021 as though “coached” by the mother to criticise the father, just as he had earlier presented to investigating officers during his first and second interviews in January and September 2019.
[38] Family Report at [242]–[246], [251], [256]
If the child has consistently been inculcated by the mother with the belief that the father is “bad” and has abused him, it is easy to imagine how the child may be inclined to criticise the father to other adults, even when the mother is not present. Consequently, the supposed strength of the child’s “independent” reports to third parties is seriously compromised.
The fact the child has continued to make allegations about his past abuse does not strengthen the allegations, because repetition cannot convert a falsehood to truth, nor make a truth any more truthful. With some justification, both parties assert the other has immersed the child in their conflict by criticising one another to him. Given the number of times the child has been interviewed by police officers, staff of the child welfare agency, and the Family Consultant, it is likely he is well attuned to the significance of the allegations of misconduct he makes against the father and others associated with him. The child’s continuing repetition of the allegations, despite the father’s absence from his life for more than two years, is just as consistent with his perception of the need to maintain the allegations while the dispute remains unresolved as it is proof of his trauma.
The child’s demonstration to investigating officers in December 2019 of a physical tussle with the father was indeed confounding. The evidence describes the officers’ observations of the child’s depiction in this way:[39]
Additionally, when describing the anal penetration, [the child] positioned himself on an ottoman on his stomach and motioned with his hand behind as if he were trying to push the father off him before curling up in a foetal position on the couch, hugging a cushion and writhing in what appeared to be pain. [The child] described that this is what he did afterwards.
[39] Magellan Report at p.16
From that description, the demonstration sounds as though it was relatively graphic, but it is useful to point out at this juncture that the child was medically examined around the time of his last association with the father in late 2019 and found not to have any anal injury. While the demonstration understandably tends to heighten concerns, it does not prove the allegation. Children can be imaginative. Other aspects of the child’s allegations are suggestive of his active imagination and so this demonstration could be just another example.
Lastly, in answer to enquiries by investigating police, the child’s pre-school staff reported the child had “acted ‘off’” and resisted the father’s attention at the pre-school on three occasions in the period between the beginning of September and the end of October 2019.[40] Such evidence about the child’s behaviour is not surprising because the parental conflict had escalated sharply by then, culminating in the mother’s severance of the child’s relationship with the father in October 2019. She reported to the pre-school staff that the child had “heightened separation anxiety” by that stage,[41] so it is little wonder he was anxious about demonstrating any affection toward the father at the pre-school, particularly if it would be in the mother’s presence. If, as seems likely, the mother had inculcated the child throughout 2019 with the belief that he had been harmed by the father, some form of resistance to the father was an inevitable consequence.
[40] Magellan Report at p.15
[41] Magellan Report at p.15
The evidence which points against the child having been sexually abused by the father, Mr R or any other unidentified adult male is much more forceful. Such evidence can be conveniently categorised in this way:
(a)the incontrovertible falsity of the child’s allegations in several respects;
(b)the inherent improbability of other aspects of the child’s allegations;
(c)the internal inconsistency of the child’s allegations;
(d)the inconsistency of the child’s allegations with other physical evidence;
(e)the child’s known history of dishonesty;
(f)the evidence of the mother’s encouragement of the child’s allegations, even if only unintentionally;
(g)Mr R’s consistent denial of the allegations against him; and
(h)the father’s consistent denial of the allegations against him.
In respect of Mr R, it was first reported to the child welfare agency that the child alleged Mr R had touched the child’s penis and “bum” and also exposed his own penis to the child. However, during the child’s first interview, he gave a quite different and more serious account, saying Mr R had touched him on the “inside of [his] bum” and put his penis in the child’s anus, which occurred while he was asleep; not while has was in the bath. No allegations were made by the child against Mr R at all during any of the four following interviews over the course of 2019.
Central to the allegations made against Mr R was the proposition that, on occasions when the child was to be in the father’s care and he had clashing work commitments, he would leave the child with Mr R, who then abused the child. However, that was impossible. Mr R had been the mother’s neighbour and was unknown to the father until 2020. Mr R denied the allegations and told the police he had last seen the child when asked by the mother to babysit him in about September or October 2018, which was verified by both Mr R’s wife[42] and the mother.[43] The investigating officers believed Mr R and took no further action. Mr R was called as a witness by the father at trial to verify the same information he gave to the police. He did not meet the father until 2020, when he was requested to prepare an affidavit and give evidence as a witness.[44] He firmly rebuffed the allegations of abuse put to him by the mother’s counsel in cross-examination.
[42] Magellan Report at p.13–14
[43] Family Report at [37] and [339]
[44] Mr R’s affidavit at [15]; Family Report at [202]
It must follow that the child’s allegation of being taken to Mr R’s home by the father in 2018 or 2019 was untrue. It must also have been untrue for him to assert he was sexually abused while he was asleep, for he could not have then known. Unfortunately, his lies were compounded by the mother’s. She was so anxious for the child’s allegations to be believed that she initially told the police she surreptitiously followed the father on two occasions and saw him drop the child off at Mr R’s home. She did no such thing and had to recant the false allegation.[45] Although the mother retracted the lie soon after, it shows how keen she was to prove the child’s abuse allegations by any means possible. She later repeated the lie to the Family Consultant,[46] even though she denied lying[47] and then prevaricated about the lie and its retraction in cross-examination.
[45] Family Report at [339]–[340]
[46] Family Report at [172]
[47] Family Report at [190]
The mother knew by June 2019 that the child was well capable of telling lies because she sent a text message to the father confirming it.[48] She even said the child told her lies on most days between 2017 and 2019.[49] The mother admitted the child told her in November 2019 that the father did not sodomise him and that he “tell[s] lies”, but the mother passed-off his admission of dishonesty, apparently because she imputed the father coached him to falsely make it.[50] She seems not to have contemplated how the child might then have been truthfully confessing his fabrications. The mother had no rational explanation to offer in cross-examination when asked how she could reconcile the child’s admitted history of unreliability with her acceptance of the literal truth of his disclosures of sexual abuse.
[48] Mother’s affidavit at [201(j)]
[49] Mother’s affidavit at [220]
[50] Mother’s affidavit at [140]
In respect of the allegations concerning the father, it was first reported to the child welfare agency that he and a paternal aunt had performed sexual acts together, to which the child had been exposed.[51] The child’s allegation of such behaviour to the mother must have been false because the father later confirmed to the investigating officers how the paternal aunt lived with her children in Country Q and had never been to Australia.[52] It would have been easy for the mother to contradict the father by production of the paternal aunt’s Australian immigration records, but she did not do so, thereby making it easier to accept the father’s evidence on that point.
[51] Family Report at [174]
[52] Family Report at [204]
That was the extent of the allegations made against the father until September 2019, when it was reported to the child welfare agency that the child had disclosed being touched on the penis by the father. But the child made no complaints at all about the father in either his first or second interviews and so none of the complaints against the father were substantiated. On the contrary, the child told the officers about his enjoyment of spending time with the father.
Then, only a month later in October 2019, the nature of the allegations dramatically escalated with it being reported to the child welfare agency that the child disclosed having been sodomised by the father and two other unknown men. It is worthwhile pausing at this point to acknowledge the possibility, but the distinct unlikelihood, of a four-year old boy being sodomised by three adult men in succession, let alone that the father arranged it, participated in it, and then sat by and watched such despicable defilement of his son by others.
In the child’s subsequent interviews in December 2019, he repeated the complaints of being sodomised by the father, but expanded the complaint to include the father putting his penis in the child’s mouth and urinating in his mouth, which allegations had not previously been reported, with at least the urination allegation seeming inherently unlikely. Aside from the child’s demonstration in the third interview of his physical tussle with the father, it is accepted the child did not and could not give any contextual detail about any of his other alleged sexual encounters with the father. Significantly, in none of the interviews did the child mention having been sodomised by other unknown men. The mother told the Family Consultant the child alleged he also had to lick those men’s penises,[53] but that was not apparently reported to the child welfare agency by either the mother or the child.
[53] Family Report at [180]
The Family Consultant put considerable store in the significance of both the child’s inability to provide any contextual detail about his alleged sexual abuse and the inconsistency between the allegations and his presentation.[54] It is quite incongruent for the child to make such heinous allegations of his repeated violation over a prolonged period by the father, Mr R and other unknown men and yet not outwardly display any emotion at all about it. He displays no anger, sadness or distress. Quite extraordinarily, the child was even laughing when telling the hospital doctor of his alleged sodomy in October 2019.[55] The child’s only salient emotion is anxiety about having to see the father, which is just as consistent with his inculcation with a false belief in his abuse as it is with a genuine one.
[54] Family Report at [244], [249], [268], [360] and [373]
[55] Family Report at [297]
The child has had no contact of any sort with the father since October 2019, when he was barely four years of age. Given the allegations of his sexual abuse escalated to his sodomy by multiple adult men on multiple occasions, the mother wanted the child physically examined, presumably because she anticipated the abuse could be verified by the child’s bodily injury. She was right to suspect it because, even though an anus is a flexible muscle, it is highly unlikely a four-year old boy could be repeatedly sodomised by grown men without some form or fissure injury or bruising to his rectum. However, there was none to be found. Despite the mother’s allegation of observing some form of anal abnormality,[56] about which she amazingly conceded she said nothing to either the father or the authorities, the medical examination of the child at hospital in October 2019 revealed the child had no rectal or other genital injury.[57] Nor was any DNA evidence found on the child’s unwashed clothing.[58]
[56] Mother’s affidavit at [107]–[108]
[57] Family Report at [61], [65], [276], [296], [297] and [345]; Mother’s affidavit at [133]
[58] Family Report at [66], [296], [345] and [347]
When confronted with that reality by the Family Consultant, the mother became “slightly agitated and angry”,[59] most likely because she realised it tended to undermine the veracity of the child’s allegations. When challenged during cross-examination on the same topic, the mother’s unconvincing response was to imply the father would have been able to disguise any injury caused to the child because he is a doctor. As inherently implausible as that seems, the mother inconsistently said she believed the father physically abused the child to intentionally leave other visible injuries on his body so she would complain about the injuries to the authorities. She hypothesised the father’s motive to be that she would then be disbelieved and it would strengthen his case to have the child removed from her care.
[59] Family Report at [179]
The mother has held an unshakeable belief in the truth of the child’s allegations. She admitted to the Family Consultant that she “believes everything [the child] says”,[60] which she confirmed in cross-examination, notwithstanding her acknowledgment of the child’s past dishonesty. She certainly did not pause to think about the implications of his false report about how he came to be sexually abused by Mr R, let alone her own mendacity about it. Perhaps it is because she is especially anxious about the child’s exposure to the risk of sexual abuse, even though she admitted having no prior suspicions about the father’s predilection for it.[61]
[60] Family Report at [174] and [181]
[61] Family Report at [165] and [177]
The mother’s current belief about the father’s sexual abuse of the child was apparently only strengthened by gossip she heard about a priest, known by the father, being a paedophile.[62] She is willing to think the worst of the father on even the flimsiest premise. She first presented the child at hospital in September 2018 for investigation of testicular pain, which she impulsively and unaccountably attributed to sexual abuse by some identified person known to the father.[63] In September 2019, the mother reported to the police that she thought some bruising on the child’s body was due to the father injecting him with some substance,[64] which honest belief she re-iterated to the Family Consultant in July 2021[65] and then confirmed at trial.[66]
[62] Family Report at [186]
[63] Family Report at [35] and [292]
[64] Family Report at [54] and [300]
[65] Family Report at [178]
[66] Mother’s affidavit at [131]
Evidently the mother was dissatisfied with the investigation undertaken by the police and child welfare agency officers prior to the child’s December 2019 interviews because, in October 2019, she approached a private investigator in Melbourne to independently interview the child. The investigator refused to do so, but reported the mother’s approach to the police.[67] By that time she had already been admonished by the investigating authorities for asking the child leading questions, who were concerned she was “coaching” the child’s allegations and were frustrated by her lack of cooperation.[68] Reference has already been made to the similar views formed by the Family Consultant about the manner in which the child has been primed by the mother to readily implicate the father in misconduct.
[67] Family Report at [69] and [349]
[68] Magellan Report at p.13–15
The father has repeatedly denied abusing the child and he can do no more than that. He volunteered to be interviewed by the police and denied the allegations to their satisfaction,[69] albeit that the child welfare agency was satisfied the child’s complaints were substantiated in December 2019. No criminal prosecution has ever been brought against the father.[70] While an application was initially made to the State magistrate’s court for an interim family violence order against him for the child’s protection, he defended the application and it was ultimately dismissed in April 2021 for lack of evidence.[71] It would have been a dangerous forensic tactic for the father to start these parenting proceedings if he really had sexually abused the child, because he must have known he would be interrogated about the allegation on his oath.[72] Nonetheless, he started the proceedings, swore his denial of any sexual abuse in his affidavit,[73] and credibly adhered to the denial during cross-examination.
[69] Family Report at [339]
[70] Family Report at [351]; Father’s affidavit at [79]
[71] Family Report at [78], [81], [99], [103], [146], [181], [351]; Mother’s affidavit at [144]; Father’s affidavit at first [79]
[72] Family Report at [367]
[73] Father’s affidavit at second [73], p.17
The evidence falls far short of proving the child’s sexual abuse by anyone. It also fails to demonstrate there is a need to protect the child from the risk of physical or psychological harm through his subjection or exposure to sexual abuse by the father or anyone within his milieu.
The mother must have been conscious of the relative weakness of the evidence and the prospect that the findings for which she advocated would not be made, as her counsel made these concessions in the submissions within the Case Outline document filed for her:
It is possible that the court may be unable to make positive findings that the father has abused the child…
…
…it is submitted that even if the father does not pose an unacceptable risk to [the child] by way of sexual harm, there is a risk of psychological harm if the child was removed from the residence of his mother.
Section 60CC(2)(b) – alleged physical abuse
The evidence shows that, on numerous occasions over a confined period of about six weeks, the mother made complaints to various authorities about minor injuries to the child, which she attributed to physical abuse by the father. That occurred:
(a)on 1 September 2019, in relation to a “lump/mark” on his “neck/chin”;[74]
(b)on 3 September 2019, in relation to some bruising;[75]
(c)on 10 September 2019, in relation to a bruise;[76]
(d)on 12 September 2019 in relation to a superficial bruise under the child’s “left cheek/chin”, about which the child reported “dada beat me”;[77]
(e)on 3 October 2019, in relation to a small abrasion on his left mandible, which the child said was due to being hit by the father;[78] and
(f)on 22 October 2019, in relation to a small scratch under his chin, which the child attributed to the father.[79]
[74] Family Report at [53] and [303]
[75] Family Report at [54]
[76] Magellan Report at p.6-7; Family Report at [55] and [293]
[77] Magellan Report at p.7
[78] Magellan Report at p.7 and 14; Family Report at [59]
[79] Magellan Report at p.7–8
As will be appreciated, in September and October 2019, there was a close temporal correlation between the child’s allegations of physical abuse by the father and the dramatic escalation in severity of the child’s sexual abuse allegations against the father and others. Eventually, the child alleged to the Family Consultant in July 2021 that the father had tried to kill him,[80] which was fanciful.
[80] Family Report at [246]
While it may be accepted the child had minor bruises and abrasions on his body in or around September and October 2019, the evidence fell far short of proving the injuries were sustained as a result of the father’s physical abuse. Nor does the evidence establish the child needs protection from the risk of the father’s physical abuse. Such trivial injuries are often sustained by children in ordinary play. Even though admissible, the hearsay evidence of the child’s attribution of the injuries to the father’s abuse is unreliable and of little probative weight.
There was some evidence of the mother having suspected the father’s physical abuse of the child as early as September 2018,[81] but that was well before the first proceedings were finalised in April 2019. The judge in those former proceedings made no finding the child was in need of protection against the risk of being physically harmed by the father. No additional evidence was adduced in these proceedings about the physical abuse alleged during the last proceedings so there was no justification to go behind the prior findings.
[81] Family Report at [36] and [291]
Section 60CC(2)(b) – alleged “serious psychological harm”
The Act requires advertence to the need to protect the child from “psychological harm” which may be caused by subjection or exposure to “abuse”.
For that purpose, “abuse” is defined to include the causation of “serious psychological harm” to the child, howsoever that may occur and regardless of whether or not it is intentional (s 4(1)).
The father contends the mother’s belief that he poses a risk of harm to the child, which belief she has shared with the child and caused him to fear and reject the father, amounts to “serious psychological harm” to the child and thereby engages s 60CC(2)(b) of the Act.
Despite not having seen or spoken to the father for more than two years, the child continues to behave aberrantly in the mother’s exclusive care. The mother reports he still wets the bed, acts aggressively, breaks and destroys things, touches the mother in a sexual way, and experiences anxiety when separating from the mother.[82] In respect of such unsettled behaviour, the Family Consultant considered there were two options: either the child was sexually abused and remains fearful of the father or, alternatively, the mother has in some way enabled the child to become inculcated with a false belief about his abuse by the father which has emotionally disturbed him.
[82] Family Report at [187] and [188]; Mother’s affidavit at [147]–[149]
The first alternative is inconsistent with the evidence adduced at trial and, on balance, is discredited. The Family Consultant gave it little credence.
In relation to the second option, the Family Consultant said this in the Family Report:
373.… The other potential hypothesis is that [the child] feels genuine fear about spending time with the father because he has been encouraged by the mother to feel fearful of the father, despite no actual sexual abuse occurring. That is, [the child] may hold an active belief that the father has sexually abused him, due to information provided to him by the mother, so feels fearful of spending time with the father. This does not necessarily mean that the father has sexually abused [the child], but it does mean that [the child] has a genuine and active fear of the father and it is suggested the Court is cognisant of this.
374.It is thought [the child’s] repeated disclosures could be an indicator of the mother continuing to discuss these issues with [the child] and thus exposing [the child] to ongoing psychological abuse. If [the child] has not spent time with the father since October 2019, it would be expected that the trauma and symptoms of trauma would diminish over time, rather than exacerbate, given [the child’s] young age at the time of the reported abuse. However, some children do continue to speak about the traumatic experiences they have experienced, long after the actual event has occurred.
375.The mother continues to report [the child] is experiencing traumatic symptoms including wetting the bed, exhibiting anger and destruction, and sexualised behaviours. Again there are two interpretations of these behaviours - one is that [the child] is exhibiting traumatised behaviours post trauma and as he is aging the trauma symptoms are becoming more visible. Or there is no traumatic symptoms and the mother is either making these symptoms up, is interpreting every behaviour exhibited by [the child] as an example of traumatic symptoms or [the child] is exhibiting these symptoms due to not spending time with the father. For example, the mother reported that at sexual abuse counselling, [the child] was running rapidly around the couches. The mother reported the therapist smiled at [the child] whereas the mother viewed this behaviour as symptomatic of trauma. The Family Consultant's view is similar to that of the Sexual Assault worker, not the view of the mother.
…
378.However if the mother has been perpetuating psychological harm against [the child], this has been occurring for at least 2 years and has resulted in the child believing that the father has sexually assaulted him and the child has a genuine fear of the father due to the behaviour of the mother. … The long-term impact upon [the child] if he is experiencing such psychological abuse could be debilitating and could lead to significant psychological issues for [the child].
(Emphasis added)
It is reasonably plain that, presuming a factual finding is made on the evidence that the mother has inculcated the child with a false belief in his abuse and she continues to reinforce the child’s false belief, the Family Consultant considers the mother is “perpetuating psychological harm against [the child]”. The Family Consultant did not specifically say in the Family Report it was “serious” psychological harm, but she did so in oral evidence.
It would logically follow that the child is caused “serious psychological harm” by being induced to falsely and indefinitely believe he was physically and sexually abused by his father and other adult males at the father’s instigation, which is the reason for the sudden severance and the continuing deprivation of his relationship with the father. The Family Consultant said in cross-examination that such a false belief would “highly likely” cause the child “significant mental health problems”.
The underlying evidence amply demonstrates the mother has indeed acted in ways, perhaps inadvertently, which have caused the child to hold that false belief. For example: she has certainly discussed the father with the child in terms which could only leave the child with the impression the father is “bad” and she dislikes him; she blindly accepted the literal truth of everything the child adversely said about the father, so he was aware his allegations would be willingly accepted by her uncritically; she has taken him to the child welfare agency and police on multiple occasions for him to be interviewed about his allegations; she admitted video-taping his allegations against the father on three separate occasions, which at least partly involved her asking him leading questions; and she took him to hospital numerous times alleging his physical and sexual abuse, resulting in the child’s physical examination.
Furthermore, her own genuine belief in the child’s molestation precludes her from being able to disabuse the child of his false belief. There can be no doubt about the fervour of the mother’s belief. She said so to the Family Consultant and in cross-examination and, presumably on instructions, her counsel repeatedly emphasised the point. Currently, the child believes he was sexually abused by the father (and perhaps other adult men)[83] and his interaction with the mother over the past two years, despite the father’s complete absence from their lives, shows how their beliefs are mutually reinforcing.
[83] Family Report at [373], [378] and [379]
It follows from those findings that the child requires protection against psychological harm he has already suffered and will continue to suffer by exposure to the mother’s behaviour, which is emotionally abusive.
CHILDREN’S BEST INTERESTS – ADDITIONAL CONSIDERATIONS
The child has expressed views to the mother and the Family Consultant which are antithetical to his association with the father (s 60CC(3)(a)). His views are given no weight because, for reasons already explained, his fear of the father has been induced by the mother’s behaviour and is therefore reflective of the mother’s beliefs, but not the child’s lived experience.
The child is still only six years of age and his views are malleable. It is well known that the views of young children are liable to be influenced by adults who care for them (Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [36]–[41]; RCB v The Honourable Justice Forrest (2012) 247 CLR 304 at [52]).
The mother submitted the child will lose his valuable relationship with the maternal grandmother if he instead lives with the father (s 60CC(3)(b)(ii)). He might, though that consideration carries little weight. The maternal grandmother lives in India and has not been to Australia since early 2018, when the child was barely two years of age. Their relationship is facilitated by the mother electronically. But the maternal grandmother’s influence upon the child also needs to be considered. The mother said the maternal grandmother also genuinely believes in the child’s sexual abuse, which could only be because she relies on what she is told by the mother. In cross-examination, the mother said words to the effect of:
These allegations caused lots of mental harm to me and my mother
Knowing the father sought the reversal of the child’s residence, about which prospect the mother seemed dismissive until the very end of final submissions, she contended that the child’s removal from her primary care would have deleterious emotional repercussions for him (s 60CC(3)(d)(i)). While the mother contended such a change would unjustifiably cause the child psychological harm, the father and ICL characterised the effect upon him as being more akin to short-term distress which would not be lastingly harmful and was a necessary incident of the need to avoid the long-term emotional damage he would suffer by living with the mother.
It was contended for the mother in her Case Outline document:
It is also the mother’s case if the child was removed from her care, that the child will be traumatised with such a change and such will cause psychological harm to the child.
…
Furthermore, it is submitted that even if the father does not pose an unacceptable risk to [the child] by way of sexual harm, there is a risk of psychological harm if the child was removed from the residence of his mother.
…
It is submitted that if the Court was to make the orders the father seeks, the trauma associated with placing the child with the father and removing him completely from his mother, may embark into the realm of psychological and emotional harm.
The father’s contrary submission in his Case Outline document, supported by the ICL, was couched in these terms:
11.The father’s case is that harm [from remaining in the mother’s residential care] would outweigh the harm or perhaps better termed, emotional disturbance that would flow from a change of residence for [the child].
In cross-examination, the Family Consultant was much more inclined to endorse the position adopted by the father and the ICL as the “better outcome”. She was reasonably confident the child’s fear of the father would dissipate relatively quickly. Since the child is still so young and immature, he will probably more flexibly adapt to life with the father than, for example, an adolescent with intransigent views. The Family Consultant fairly acknowledged the loss of the child’s relationship with the mother would be “huge”, but said the loss of his relationship with the father fell into the same category and the recovery of that relationship would help mitigate the loss of his relationship with the mother. The Family Consultant encouraged the father’s resort to professional therapy to help the child adjust to the change, which the father was anxious to do of his own accord in any event.
The mother signalled her disagreement with the Family Consultant’s opinion evidence during final submissions, but failed to identify any reason why such evidence should be rejected. The opinions of the Family Consultant about the likely nature and characterisation of the child’s emotional reactions are probably more reliable than those of the parties and so, absent any good reason for its rejection, the Family Consultant’s opinion evidence is accepted. The child will certainly be disturbed by his removal from the mother’s care, but will likely settle with the father reasonably soon when treated sensitively and supported by counselling, which the father has researched and is ready to implement.
No other factors prescribed by s 60CC(3) of the Act were engaged by the submissions made by the parties or the ICL.
CONCLUSIONS
The evidence of the parties’ intractable conflict easily rebuts the presumption of equal shared parental responsibility (s 61DA(4)). The parties’ mutual proposal for the residential parent to have sole parental responsibility for the child was endorsed by both the ICL[84] and the Family Consultant.[85]
[84] Exhibit ICL1, Order 3
[85] Family Report at [222]–[223]
The question of with whom the child should live turned on the answer to this conundrum: Should the child:
(a)continue to live with the mother to avoid the emotional upheaval caused by the reversal of his residence, but then have to bear the long-term adverse psychological effects of having no paternal filial relationship and falsely believing he was sexually abused?
or
(b)be forced to endure the immediate distress of being shifted to live with the father, whom he currently fears as being dangerous, in the expectation that in time he will probably come to recover his meaningful relationship with the father, learn through experience that the father is no threat to him, and possibly be able to later restore his relationship with his mother?
If the child remains living with the mother, his withering relationship with the father will soon die. As the Family Consultant correctly predicted,[86] the mother will almost certainly not accept the finding that the father poses no risk of harm to the child and, if the child remains living with her, could not bring herself to support the child’s continuing relationship with the father, even if orders were made expressly directing the child to spend time with the father. Any such orders would surely be breached because the child, realising the mother’s continuing objection, would resist seeing the father and the mother would then accede to the child’s resistance. More litigation would probably follow and the same problem requiring resolution now would present for resolution again.
[86] Family Report at [143(b)], [143(g)], [166], [174], [178], [362], [372], [377] and [380]
The Family Consultant said this in the Family Report about the harm the child was liable to suffer if he remains in the mother’s care (assuming the father poses no risk of harm to him), about which opinion she was not challenged in cross-examination:[87]
…it is probable [the child] would continue to experience psychological harm from the mother in the future and this could be accentuated when [the child] is a teenager and is experiencing different views and beliefs from the mother. The long-term impact upon [the child] if he is experiencing such psychological abuse could be debilitating and could lead to significant psychological issues for [the child].
[87] Family Report at [378]
The combination of the Family Consultant’s written and oral evidence was that the child would most likely sustain serious and long-lasting psychological harm if he remains living with the mother. Such evidence militates in favour of the child’s residence being reversed, but the countervailing problem is forecasting the way in which the child might adapt to living with the father. For the reasons given in the discussion of s 60CC(3)(d) of the Act, the child will be initially distressed by his removal from the mother’s care, but will likely settle with the father reasonably soon. The initial emotional upheaval he will experience in having his residence reversed, while regrettable, is necessary to avoid the greater detriment of the psychological harm he will experience if he continues to live with the mother.
The mother sought to contend the risk of the child’s emotional trauma in reversing his residence was too great to take, given he is currently well settled with her, but that submission is rejected because the child is not so well settled in her care. As the mother said, despite the father not being part of the child’s life for well over two years, the child is still acting aberrantly in her exclusive care and is about to begin therapy with his fourth psychologist.
An important component of the child’s move to live with the father is the quite different therapeutic support he should receive from the psychologist with whom the father has already consulted on the Family Consultant’s recommendation. In accordance with that psychologist’s advice, the child will receive counselling and be initially cared for exclusively by the father. The child and father will have a week together without school or employment commitments frustrating the restoration of their bond. The father’s home will be familiar to the child and he will keep the child enrolled at the same school, so disruption will be minimised. The child’s introduction to the father’s partner, family and friends will be a gradual process. The father also said that the child’s eventual re-connection with the mother, while determined by him, will be guided by the advice he receives from the child’s psychologist.
The father said the child’s therapy would likely start on a weekly basis and last for months. He said he would act on the psychologist’s recommendations and can cover the cost of the therapy. For abundant caution, an order will be made compelling him to ensure the child receives such therapy, though there could be little doubt the father would do so voluntarily. The order will enable the father to provide the psychologist with these reasons and the Family Report.
The mother refused to be drawn on what arrangements the orders should dictate for the child’s interaction with her, presuming he should instead live with the father. She could not see how that outcome was even tenable, since she regarded such an outcome as punishment for her admirable conduct in protecting the child’s best interests. In the very last stage of final submissions the mother instructed her counsel to seek, as a fall-back positon, orders for the child to spend supervised time with her. However, as a consequence of her refusal to engage with that issue earlier, there is no evidence at all about how such supervised visits could be structured. Any orders to that effect would be entirely arbitrary in the absence of evidence as to the venue, the waiting period for acceptance, the expense, the frequency of visits, the duration of visits, and whether the supervisory service would even accept an indefinite regime. Besides, there could be no satisfaction the mother could refrain from her campaign against the father’s alleged misconduct if she was able to meet with the child any time soon.
The Family Consultant recommended no orders prescribing the child’s interaction with the mother[88] and that was the ICL’s proposal.[89] As already mentioned, the father is willing to be guided by professional advice about the child’s eventual re-introduction to the mother and it is best to leave that decision to his discretion, as an incident of his sole parental responsibility for the child. The orders should restrain the mother’s interaction with the child without the father’s express written consent, much like the ICL proposed.[90] There is no need for a declaration of the type initially proposed by the father.[91]
[88] Family Report at p.58
[89] Exhibit ICL1
[90] Exhibit ICL1, Order 9
[91] Amended Application filed 29 October 2021, Order 4
To ensure the father retains control, an injunction is made restraining the mother from approaching the child, his place of residence with the father, or his school – at least without the father’s express written consent. Other orders will require the father to keep the mother appraised of the child’s academic and medical progress. Another order requires the parties to keep one another appraised of their contact details, in case the need arises for their communication.
The father and the ICL remain concerned the mother may not abide by the injunction restraining her contact with the child. They fear she might try and abduct the child and flee overseas to India. The mother said she would not do so, in which case she will not be prejudiced by injunctions requiring her to surrender the child’s passport to the father and to refrain from taking the child away from Australia.
An order requires that the child not be exposed to the denigration of either parent. The injunction binds both parties, in case the child eventually spends some time with the mother.
The central theme of this dispute was the asserted risks of harm to which the child was exposed by both parties, which risks were often reported to the police and the child welfare agency. An order is made enabling the parties to provide these reasons to the police and child welfare agency if any further risk reports are made about the child. The investigation of any fresh reports will therefore start from the premise of solid factual findings.
Lastly, an order is made requiring the child to have explained to him by the Family Consultant the outcome of these proceedings in age-appropriate and empathetic terms. In that way, neither party can complain about the child’s opinion of the outcome being compromised by a biased explanation. The Family Consultant agreed to perform that role.
Such orders are made in the best interests of the child.
The ICL accepted an order she proposed[92] was not necessary in the face of the order for the father to have sole parental responsibility.
[92] Exhibit ICL1, Order 11
The ICL also conceded another order she proposed[93] was inapposite, given the terms of s 65Y of the Act.
[93] Exhibit ICL1, Order 12
I certify that the preceding one hundred and twenty-two (122) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 28 February 2022
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