JARMIN & ELSTONE (No.3)

[2018] FCCA 2724

FEDERAL CIRCUIT COURT OF AUSTRALIA

JARMIN & ELSTONE (No.3) [2018] FCCA 2724

Catchwords:
FAMILY LAW – Parenting – live with and spend time – historic physical abuse of child by mother’s former partner – attachment difficulties for child – risk to child’s psychological and emotional development if child continues to live with mother – order that child live with father.

Legislation:

Family Law Act 1975 (Cth), ss.4AB(1), 60B, 60CA, 60CC, 61DA, 65D(1), 65DAA
Federal Circuit Court Rules 2001 (Cth), r.1
Evidence Act 1995 (Cth), s.128

Cases cited:

Rice & Asplund (1978) 6 Fam LR 570

Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Applicant: MS JARMIN

Respondent: MR ELSTONE

File Number: ADC 3605 of 2015

Judgment of: Judge Young

Hearing date: 13, 14, 15, 16, 17 , 22  and 23 August 2018

Date of Last Submission: 23 August 2018

Delivered at: Darwin

Delivered on: 21 September 2018

REPRESENTATION

Counsel for the Applicant: Mr McQuade of Counsel

Solicitors for the Applicant: Daniel Johns Lawyers

Counsel for the Respondent: Ms Spence of Counsel

Solicitors for the Respondent: Adelaide Lawyers

Counsel for the Independent Children’s Lawyer: Ms Du Barry of Counsel

Solicitors for the Independent Children’s Lawyer: The Family Law Project 

ORDERS

Parental responsibility

1. The father and the mother are to have equal shared parental responsibility for the child [X] born 2011.

Live with orders

1. During the school term the child is to live with the father.

2. The child is to spend time with the mother as agreed and failing agreement, as follows:

   a)   During school terms, each alternate week from after school on Thursday to before school on Monday or, if Monday is a public holiday, to before school Tuesday, commencing Thursday 18 October 2018.

   b)     During school holiday periods, for one half of the April, July and September school holidays, such halves to be agreed between the parties and in the absence of agreement for the second half of each of these school holiday periods, commencing in the 2018 Christmas school holiday.

   c)     For half of the Christmas school holiday period, such half to be agreed between the parties and in the absence of agreement the first half in odd numbered years and the second half in even numbered years.

   d)     For the purpose of these orders the school term and Christmas school holidays are deemed to commence at 9 AM on the first day after the school term ceases and changeovers shall occur at 6 PM on the day in the middle of the school holiday period.

   e)     In the event the school holidays consist of an uneven number of days, the parent who has the care of the child for the second half of the school holiday will have care of the child for an additional day at the end of the holiday.

   f)   Such other time as may be agreed between the parties.

3. For the years when the Easter holiday does not coincide with the school holidays, the child is to live with the mother in the first year and each alternate year thereafter and the child is to live with the father in the second year and each alternate year thereafter.

Occasions and events of special significance

1. For Christmas, notwithstanding any other order:

   a)   The father shall have care of the child from 2 PM on Christmas Eve until 2 PM on Christmas Day in even numbered years and from 2 PM on Christmas Day until 2 PM Boxing Day in odd numbered years.

   b)     The mother shall have care of the child from 2 PM on Christmas Eve until 2 PM On Christmas Day in odd numbered years and from 2 PM on Christmas Day until 2 PM Boxing Day in even numbered years.

2. The parties are to have liberty to apply within 14 days in respect of further orders about occasions and events of special significance including Mother’s Day, Father’s Day, the child’s birthday and the parents birthdays.

3. The parties are to have liberty to apply generally in respect of these orders within 14 days.

4. The father’s contravention application is referred to a Registrar for further consideration on a date to be advised.

IT IS NOTED that publication of this judgment under the pseudonym Jarmin & Elstone (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3605 of 2015

MS JARMIN

Applicant

And

MR ELSTONE

Respondent

REASONS FOR JUDGMENT

(As corrected)

1. This is an application about a seven year old boy, [X].  His parents consented to orders on 14 February 2017 that provided for [X] to live with his mother and spend alternate weekends and school holiday time with his father.

2. The consent orders broke down very quickly. The mother withheld the child on the basis that he had disclosed physical and sexual abuse by the father to a therapist, Dr H, on 7 April 2017.  She said that [X] told Dr H that the father’s partner, Ms C, had “licked his butt”.  He also said that Ms C and the father had hit him on the head and demonstrated the manner in which he had allegedly been assaulted.  The mother was present when the child made these allegations.  The matter was reported to the child welfare authorities by Dr H.  A few days later, according to the mother, [X] repeated these allegations with some further detail and, according to the mother, said that Ms C “sticks her tongue in my butt and touches my willy.”  The next day, 11 April 2017, the mother, along with the maternal grandmother, attended at the (omitted) police station and reported the allegations. 

3. On 14 April 2017 the mother said that the maternal grandmother had reported that [X] had alleged that Ms C “licks his willy”.  The maternal grandmother deposed an affidavit to that effect.  The matter was reported to the child welfare authorities.  A child welfare and police investigation commenced.

4. On 27 June 2017 the Child Protection Services, with the participation of police, conducted a forensic interview with [X]. On 30 June 2017 the father commenced contravention proceedings. On 17 July 2017 the matter came before me and the mother indicated that she wished to vary the existing orders and outlined the basis on which she wished to do so. I ordered the mother to file an initiating application and affidavit in support and made orders pursuant to section 69ZW of the Family Law Act.

5. On 9 August 2017 the mother filed an application to vary the existing orders. She sought an order for sole parental responsibility and sought the “suspension” of the child’s time with the father on both an interim and permanent basis. She filed an affidavit in support deposing to the allegations described.  A report from Dr H supporting the allegations was also filed.  On 26 October 2017 the father filed an affidavit denying the allegations and making a counter allegation that [X] had told him that the mother “touches his willy”.  On the same day Ms C filed an affidavit with a flat denial of any wrongdoing.

6. On 30 October 2017 I conducted an interim hearing.  Although there had not been compliance with the 69ZW order at that stage by the child welfare authorities and the police I was told from the bar table that the police were not going to take the matter any further.  That was the agreed position of the parties.  Apparently [X] had not made any allegations of sexual abuse in the forensic interview.  I was inclined to dismiss the mother’s application on a summary basis because the rule in Rice & Asplund (1978) 6 Fam LR 570 requiring new or significant material likely to result in a variation of orders had not been satisfied. However, because the 69ZW order had not been complied with I thought it prudent to adjourn the matter until that material could be considered.

7. Accordingly I adjourned the matter to 23 November 2017.  Before the adjourned date the mother filed further affidavit material deposing to an incident at [X]’s school on a Monday morning after he returned from the, now resumed, weekend time with the father.  [X]’s behaviour had become “dysregulated”.  He was said to have “barricaded” himself in the classroom and attempted to “stab” a teacher with a pencil.  The mother soon after presented [X] for a therapy session with Dr H.  Dr H provided another report where she expressed the opinion that [X] was reacting to fear of his father.  She said that [X] had threatened suicide if he was required to spend time with his father again.  She said that the child was at risk of self-harm and needed to be protected from triggers that activate and escalate these problems.  In addition, a couple of days later [X] attempted to strike or did strike another child and, as a result, he was suspended from school.  The mother sought a suspension of the child’s time with the father.

8. Although it was an interim hearing and there was no opportunity to test the opinions expressed by Dr H in her report I was satisfied that the child’s time with the father should be suspended.  I found that the requirements of the rule in Rice & Asplund to reopen the matter were satisfied.  I made an order for the preparation of a family report and adjourned the matter to 22 March 2018 to allow that to happen.

9. On 16 March 2018 the family report prepared by Dr K, a clinical psychologist, was released.  She observed the child to have a “warm and spontaneously affectionate” relationship with his father.  The observations were entirely inconsistent with the opinion expressed by Dr H that the child was afraid of his father.  On the other hand, she raised serious concerns following her observation of [X] with the mother, and later with the maternal grandmother and grandfather as well.  She said at paragraph 114:

   Of concern during this assessment was not [X]’s behaviour with the father but [X]’s behaviour with the mother.  [X]’s behaviour in the observations of interactions with Ms Jarmin and the maternal grandparents was angry and defiant.  The mother’s demonstrated misattunement to [X], unwittingly or otherwise, seemed to provoke [X]’s anger rather than help him manage his feelings. This assessment suggested that there were significant issues in [X]’s relationship with the mother.  Ms Jarmin was demonstrably unable to sensitively attune to [X] or appropriately respond to his emotional needs.  It is noted that Ms Jarmin admitted to robotic parenting and a sense of detachment from [X] in his infancy. Within this context [X] was injured as a young infant.  In this assessment, Ms Jarmin demonstrated an inability to empathise with [X] or assist him to regulate his emotions, both of which are key parenting skills which underpin sensitive parenting capacity

10. The father made an urgent application that [X] live with him pending trial.  I heard that application on 17 and 18 April 2018.  Notwithstanding the very serious concerns raised by Dr K I concluded that, in view of the striking disagreement between the observations and opinions of Dr K and Dr H, that it was necessary to leave a decision about that until trial.  I ordered the reinstatement of the orders of 14 February 2017 providing for the child to spend alternate weekends with the father and adjourned the matter for trial to 13 August 2018.

11. At that point the child had not seen the father for about a year with the exception of one visit, or perhaps two, between the court appearance on 20 October 2017 and the suspension of time on 23 November 2017.

Some background

1. The relationship of the father and the mother began in 2010 and they separated in about January 2012 when [X] was about six months old.  At some point in 2012 the mother commenced a relationship with Mr L and they began to live together (sometime between May and December 2012 according to the mother).  On 2 March 2013 the mother and Mr L presented [X] at the Hospital A.  [X] was found to have a spiral fracture of the left arm.  The child was readmitted to the hospital on 7 March 2013 to carry out a forensic medical investigation.  The child was examined by Dr E, a consultant paediatrician, for the Child Protection Services.  In addition to the spiral fracture of the left humerus, the child was found to have an older injury to the right humerus which had progressed with a change of alignment of the humerus since an earlier examination on 5 February 2013, a healed fracture of the right ulna, a ring fracture of the left humerus, a callous along the shaft of the left humerus consistent with a previous boney injury although no fracture was identified, signs of an old healing injury on the left radius, signs of injury on the lower part of the left tibia and signs of injury on the left fifth and sixth ribs.  The child was also noted to have a variety of bruises over his body.  The results of the examination were summarised by Dr E as follows:

   [X] has experienced multiple episodes of cutaneous and bony trauma which are not accounted for by normal childhood activities of a toddler.  He had nine separate areas of bony injury (4 injuries to the left arm, 2 to the right arm, 2 to adjacent ribs and the left tibia) with a high likelihood of a repeat injury to the proximal right humerus within a few days of the original injury.  This would represent a minimum of five separate applications of force on at least four separate occasions in time.  The injuries to the limbs would be accounted for by forceful pulling and twisting and are therefore considered to have been inflicted. 

2. A child welfare investigation was undertaken resulting in [X] being placed in the Minister’s care for a period of 12 months.  The mother said she ceased living with Mr L in about April 2013. A police investigation resulted in Mr L being charged with offences in relation to the treatment of [X]. The charges were later withdrawn, apparently for lack of evidence.

3. On 26 June 2013 a document called “Parenting Capacity Assessment Report” (“the PCA Report”) was prepared by two psychologists employed by Child Protection Services.  This document runs over 45 pages and consists of a detailed examination of the events surrounding [X]’s injuries.  It includes a discussion of the investigation of those injuries, an assessment of the mother’s mental health and psychological capacity to provide appropriate parenting and an assessment of her relationship with [X] and her ability to provide for [X]’s physical, developmental and emotional needs.  A similar assessment was made in relation to the father, including an assessment of his capacity to manage his anger.  There was also an assessment of the maternal grandparents and the paternal grandmother.  Recommendations in the report included that the mother continue with therapy and that the father should have therapy to address his tendency to aggression and difficulty in coping with stress.

4. The PCA Report noted that while the mother was observed to be able to meet [X]’s basic needs her capacity had been augmented by apparent reliance on her parents.  In relation to her capacity to meet [X]’s developmental needs the mother demonstrated a “limited repertoire of play skills” and tended to rely on electronic games that were inappropriate to his developmental level.  There were also concerns expressed about the level of TV viewing to which the young child had been exposed.  In relation to the child’s emotional needs the authors of the report held “strong concerns about [the mother’s] ability to identify and meet [X]’s emotional needs”.  The mother during the assessment referred to the child being exposed to “domestic violence” perpetrated by the father, although particulars are not referred to in the report.  In relation to the mother’s capacity to meet the emotional needs of the child the authors of the report said this:

   [The mother] provided some insight into the possible long-term effects of trauma on [X] in relation to his early experiences of alleged domestic violence when she discussed [X]’s recent nightmares following contact with Mr Elstone.  However, it remains a serious concern that she attributed more weight to the impact of the alleged trauma experienced with Mr Elstone when [X] was seven months old, than the trauma of multiple significant injuries recently experienced.  While [the mother] appeared able to empathise with [X]’s previous alleged trauma, she remained ambivalent about the long-term effects of [X]’s recent trauma which is likely to have implications for her ability to identify and respond to [X]’s future needs.  Furthermore, [the mother] expressed the view that not having her ex-partner, Mr L, in his life was a setback for [X] as he was beginning to have a “step-dad role with [X]”.  It was highly concerning that [the mother] lacked any insight at all into the trauma and long-term negative effect on [X] that his time with Mr L would have had, rather she saw it as a deficit for [X] not to have Mr L in his life any longer. 

5. Under the heading “Prognosis for change” the authors included the following observations:

   … There were some indications that [the mother] may be able to make the changes required to adequately address concerns regarding her care of [X] and repair their relationship.

   These included:

   ·[The mother] acknowledged that she had failed to protect [X], indicating a degree of (albeit extremely limited) capacity to contemplate a level of responsibility for [X]’s abuse.

   ·[The mother] acknowledged her emotional detachment from [X] and showed some insight regarding how [X] may have experienced this.

   ·[The mother] demonstrated preparedness to acknowledge difficulties with her own emotional state and trauma related to past experiences and sought out and engaged with psychological input for the duration of the assessment.

   Factors indicating limited capacity to change

   There are a number of significant factors which limit [the mothers] capacity for change, including:

   ·[The mother] remained largely ambivalent about the cause of [X]’s injuries.  It took the duration of the assessment for [the mother] to concede that it was likely that Mr L was responsible for some of [X]’s injuries and for her to discuss the details of how one injury may have occurred.  [The mother] remained unwilling to acknowledge Mr L’s responsibility for the majority of [X]’s injuries despite Mr L being charged by SAPOL in relation to these.  In addition, [the mother] remained unaware of how and when many of the injuries may have occurred. This raises significant concerns about [the mother’s] capacity to both recognise [X]’s distress and ensure [X]’s safety in the future.

   ·[The mother] lacked insight and empathy for [X]’s emotional experiences.  She was not able to demonstrate concern for the long-term emotional impact that her own treatment, as well as Mr L’s treatment is likely to have had on him.  [The mother] remained preoccupied with the impact of [X]’s removal on her own emotional well-being.

   ·[The mother] lacked insight into the attachment difficulties [X] is experiencing and her role in this.

   ·[The mother] appeared resentful of the services involved within the assessment.  She was unable to understand why [X] was removed from her care and both she and her parents were resentful of the supervision required between [the mother] and [X].  [The mother] minimised the severity of [X]’s experience and mainly cited superficial changes when asked what needed to change to have [X] returned her care (for example [the mother] stated that she would need parenting payments reinstated).  [The mother] was unable to acknowledge that she would need intensive assistance with parenting given the circumstances around [X]’s removal from her care.  Concerns remain about [the mother’s] willingness to engage with the services necessary to assist her to ensure [X]’s safety.

6. In July 2013 an order was made placing [X] under the guardianship of the Minister. The Minister placed [X] in the care of the maternal grandmother and the mother moved back to live with her. Arrangements were made by the Minister for the child to spend time with the father and the paternal grandmother. At the end of the period of the Minister’s guardianship in July 2014 [X] returned to his mother’s care.  Difficulties then developed between the mother and the father about the father spending time with [X].  Attempts at mediation proved unsuccessful.  On 28 September 2015 the father commenced proceedings.  At that point the child had not seen the father for more than a year.  On 4 February 2016 I made orders for the child to spend supervised time with the father and on 10 May 2016 consent orders were made for the child to spend unsupervised time from 4 PM Saturday to 4 PM Sunday on alternative weekends with father.  On 17 August 2016 orders were made setting the matter down for trial on 14 and 15 February 2017. As noted, the parents consented to orders on 14 February 2017 that [X] live with the mother and spend time on alternate weekends and during school holidays with the father.

The issues at trial 

1. At the outset of the trial the mother discontinued her initiating application and, in practical terms, sought to maintain the consent orders of 14 February 2017 whereby the parents shared parental responsibility, the child lived with the mother and spent alternate weekends and holidays with the father.

2. I ordered that the father’s response was to stand as the application. The father sought orders that he have sole parental responsibility, the child live with him and, after a period of 3 months transition, begin to spend time with the mother, initially supervised and then from after school Friday to Sunday. In the alternative, he sought orders for equal time shared care.

3. The independent children’s lawyer, in final submissions, said there ought to be a gradual increase in the child’s time with the father to an equal time arrangement. This position was, in substance, also adopted by the mother in final submissions.

The father’s case

1. The father is 28 years old. He gave evidence that he had had a relatively short relationship with the mother and that they separated in early 2012. He said that after an initial period when [X] spent time with him he began to experience difficulty in having the child spend time with him. He said this was because of the mother’s hostility and an intervention order against him in mid-2012. The child again began spending time with the father weekly during the day when the child was placed under the guardianship of the Minister in mid-2013. He said further difficulties with time began again after the child was returned to the care of the mother in 2014 and the child did not spend any time with him until he commenced proceedings and the orders for supervised time in 2016. He said the mother did not support a relationship between the child and him.

2. The mother made allegations of family violence against the father. She said that during an argument in November 2011 the father punched a lamp at the door of their unit and glass showered the mother and [X]. She said that in January 2012 the father telephoned her at work to ask for help because [X] would not stop crying. She said she heard the father shout at the child “Shut the fuck up, you stupid baby”. She said she left work and when she arrived home she saw that the father had punched holes in the walls. He told her he had “blacked out” from anger. The mother said there was another argument between her and father in January 2012.  She said the father became angry and started screaming.  She said that she cowered in a corner, shielding the child who was crying.  She said the father approached her and said words to the effect of: “If you don’t shut that baby up I will take him and throw out the window… I will beat the shit out of you”.  She said she ran out of the unit and called her parents.  She said that marked the separation of the parties. 

3. The father denied any physical violence towards the mother or child but admitted to some specific instances of damaging or destroying property. He admitted breaking a light at the home but denied this was in the presence of the mother and the child.  He admitted that he punched a hole in the wall while the mother was absent and he was caring for the child. He did not specifically respond to the mother’s allegations about the incident immediately before their separation. He otherwise denied the mother’s allegations. His denials were consistent with the information he gave to Child Protection Services at the time of the preparation of the PCA Report in 2013.

4. He said that at the time he committed these acts he felt frustrated and found aspects of the care of the child challenging.  He said he had not realised the potential harm that his conduct could have caused to the mother and the child.  He said he had undertaken therapy to help deal with his anger and now felt better able to cope. He provided evidence of having seen a psychologist, Mr J, on two occasions in 2014 to help him deal with stressful situations so he might better parent [X]. Mr J provided a letter saying that the father had demonstrated some insight into the effects on [X] of “past reactive behaviour”. A short report was provided by another psychologist, Mr D, who said the father had consulted him on three occasions in 2016 to engage in “relapse prevention for anger problems”. He said the father had been very motivated and engaged in this process. The father was not challenged in cross-examination about these claims.

5. In relation to the circumstances surrounding the granting of an intervention order against him in favour of the mother in June 2012 he said this occurred soon after separation. He said the mother sent him an SMS message that said something like “you just want me dead”. He said he replied with something like “if I wanted you dead, you would be by now”.  The father said he acted emotionally and stupidly and was very sorry for his action.  He said that he had no intention of carrying out any threat.  His counsel suggested in cross-examination of the mother that she obtained the intervention order on the basis of a misrepresentation in that she did not disclose to the police her SMS to the father.  The mother’s evidence on the point was vague.  While I am unable to make any finding about that I am satisfied, in the absence of specific evidence to the contrary, that I should accept that the intervention order was made on a proper basis.  Nevertheless, I am satisfied that the father’s threatening SMS message was an isolated incident.  I am satisfied that the father genuinely regrets his conduct and has developed a more mature attitude.  I am satisfied he does not constitute a threat to the child or the mother and the risk of him committing further family violence is low.

6. More generally, I feel unable to decide which of competing versions of these events is correct. I found the father to be a generally credible witness and, for the reasons described below, I have reservations about the mother’s credibility. Nevertheless, I am satisfied that the father exhibited uncontrolled anger at times and that the mother was probably fearful of him at times. This satisfies the definition of family violence in section 4AB(1) of the Family Law Act (“the Act”).

7. The mother also alleged that the father had not disclosed evidence about child abuse allegations made against him in the course of a separation from his former partner (the partner before the mother) and she implied those allegations were unresolved.  I reject that.  In the father’s affidavit filed in support of his application commencing these proceedings in 2015 he annexed the PCA Report.  These allegations were considered at page 35 of the report.  They concerned “sexual allegations” about the father’s former partner’s four year old son.  There is reference to Child Protection Services involvement and the father reporting that the allegations were unsubstantiated although there was a court order made that he was not to have contact with the ex-partner’s children.  He said the police had been involved and had seized his computer but that had been returned.  He had not been charged with any offence. The father also said that he and the former partner had a daughter.  The father said that the order had affected his ability to spend time with his daughter when the ex-partner’s older children were present.  There is no further information about the matter.  Child Protection Services would have had access to complete information about the case.  There is nothing in the PCA Report suggesting that the information given by the father was inaccurate in any way.  The Department of Child Protection later arranged for [X] to spend time with his father.  It is inconceivable that this would have occurred if any suspicion still attached to the father.

8. The mother also alleged that the fact that the father did not spend time with the daughter of a previous relationship indicated a lack of parenting capacity.  The father said that the earlier proceedings concerning the former partner’s children and subsequent orders, along with her hostility, had made it difficult for him to pursue a relationship with his daughter.  He said that he proposed to commence proceedings, once the present proceedings were resolved, to seek time with his daughter.  It is surprising that the father has not pursued a relationship with his daughter.  However, the father was not challenged in cross-examination on this point and I accept his explanation. 

9. The father was cross-examined at length about his various reports to the child welfare authorities about complaints, he alleged, [X] had made to him about sexual abuse by the mother, including a claim by [X] that the mother “touches his willy”.  He also deposed to his continuing belief that the mother and, possibly, the maternal grandmother had been responsible for physical abuse of [X] in the past.  The father said that his suspicions first developed that [X] had been sexually abused when, occasionally during times [X] spent with him, [X] had become withdrawn and appeared unhappy.  He said he suspected something may be wrong in the mother’s home.  He said he had questioned [X] in a leading way before [X] made the claim that his mother “touches his willy”.  He said that the child welfare authorities had told him that the manner of his leading interrogation of [X] made the answers unreliable.  The father conceded that the forensic interview of [X] in June 2017 had not substantiated any allegations of sexual abuse of [X] by anyone.  The father agreed that there was no objective or independent evidence to support the claims.

10. Nevertheless, it was apparent from the father’s evidence that he continued to harbour suspicions that [X] had been sexually abused by the mother.  In my view, the suspicions, although not reasonable, were genuinely held.  His suspicion and distrust of the mother should also be seen in the context of the evidence of very serious physical injuries deliberately inflicted on [X] while he was in the mother’s care.

11. I will turn to the mother’s evidence about the circumstances in which [X] suffered these injuries later.  Although I am satisfied that there is no substance to any of the allegations of sexual abuse of [X] and that the father’s continuing suspicions about those allegations do not have a reasonable basis, the father’s deep and possibly permanent distrust of the mother, both in regard to her truthfulness and her capacity to adequately parent [X], is based in past events, particularly the injuries inflicted on [X] while in the mother’s care.

12. The parents did not communicate at all between 2012 and 2018 (although there was a suggestion of some very limited communication by communication book in early 2017). Further, any direct communication, including by communication book, may have constituted a breach of the intervention order obtained by the mother in 2012 until the orders of 14 February 2017 were reinstated on 23 April 2018. Although the mother, primarily, has used a communication book since then there is no other evidence that the parties have communicated effectively in order to co-parent in the past or real evidence that they are likely to be able to communicate or co-operatively parent in future.

13. I found the father to be a generally truthful witness who is focussed on [X]’s best interests. He is deeply mistrustful of the mother and he has difficulty in dismissing his suspicion that she has been complicit in the deliberate infliction of harm on the child. To this extent, he is what was described by the family report writer as “hypervigilant” in relation to the risk of harm to the child from the mother.  I am satisfied that this largely explains his eliciting of the false claims of sexual abuse made by [X] against the mother. 

14. Ms C is the father’s partner. She was cross-examined. She impressed as a truthful witness of mature judgment. She supported the father in his application and said she had a good relationship with [X], which was supported by the observations in the family report. I accept her evidence.

15. The father’s mother, Ms P, gave evidence. She is also supportive of the father. She apparently took the initiative to ensure that [X] spent time with the father and herself during the period the child was under the guardianship of the Minister. She has her own children from a second marriage who are on good terms with [X]. Her relationship with the mother is perhaps not as strained as the one between the father and the mother. I accept that Ms P was a truthful witness, with [X]’s best interests at heart.

The mother’s case

1. The mother is 28 years old.  She has had a troubled background, involving, according to her psychologist, Ms A, “Complex Trauma” in her childhood, including a childhood friend having been murdered, severe bullying as a teenager and “reported domestic violence in relationships, both with Mr Elstone and Mr L”. There was also mention of “ongoing tensions in the relationship with her mother …”. According to Ms A, she presented with features of anxiety and depression as well as features of trauma including hypervigilance and disconnection when “triggered”, such as when she felt she was not listened to or being criticised or blamed or when her capability as a mother was seemingly in question. She has, however, done much to improve her life and psychological health since 2013.  She has successfully completed a (omitted degree) and obtained employment in that field.  She is interested in further study.  She is well-educated and reasonably articulate.

2. The mother deposed in her trial affidavit that in April 2013 her then partner, Mr L, was charged with inflicting the injuries on [X] described above.  She said she separated from Mr L and has had no contact with him since April 2013.  She said in her trial affidavit “I had no idea that he had ever sought to harm [X] in any way” (referring to the period before the injuries were discovered).  In cross-examination the mother said that she had become aware during the investigation into [X]’s injuries that Mr L had made an admission that he was “rough” with the child.  She said that “on reflection” it was clear that Mr L was responsible for the injuries to [X]. 

3. It was put to the mother in cross-examination that at the time of the investigation into [X]’s injuries which began with his presentation to the hospital on Saturday, 2 March 2013 that she had initially suggested that the child had been injured at the childcare centre on Friday, 1 March 2013.  The history given by the mother when she presented [X] at the Hospital A on 2 March 2013 was that [X] was “picked up from day care on Friday at 3 pm, crying in the corner, then didn’t lift arm afterwards, neurofen (sic) and slept overnight but winging (sic)”.

4. The mother said that she remembered picking the child up but did not remember any other events from that time.  She agreed she was aware that the police had investigated whether the child had been injured at the childcare centre and the police had concluded that he was not.  She was asked whether she had lied by suggesting the child was injured at the childcare centre.  She replied that “I do recall not giving police the correct information about Mr L entering the bedroom that night, not [about] the childcare centre”.  She said she initially kept that information about Mr L from the police.  She said she feared the consequences of telling the police that information.

5. According to the PCA Report the mother disclosed to the police on 8 March 2013 that Mr L had gone into the child’s room on the night of 1 and 2 March 2013 and that shortly after she had heard the child “scream” and “cry” then she had brought child into her bed.  Apparently she told police around this time that she was worried for Mr L and wanted to continue living with him.  

6. A certificate under section 128 of the Evidence Act was given to the mother and cross-examination continued.

7. The mother said that during the night (the night of 1 and 2 March) before she and Mr L presented [X] to the Hospital A on 2 March 2013 she had heard Mr L leave their bedroom and go into the child’s room.  She said she then heard the child begin to cry continuously.  She said she believed, in retrospect, this was when Mr L inflicted the spiral fracture of [X]’s arm.  She said she had remained in bed and went back to sleep.  The mother said she deliberately did not initially disclose this information to the police during their investigation.  She admitted that she had attempted to deflect the police investigation from Mr L. She denied that she attempted to deflect the investigation from herself.  She said she attempted to shield Mr L because she did not know, at the time, whether he had harmed the child.  She also said she was in poor mental health at the time and was scared of authority. She said she was not “focussed on how [X] was injured and the implications for him”. She said she had made “an error of judgment” about Mr L and it was an error that she “didn’t focus on the child”. 

8. I am satisfied that the mother attempted to deflect the police investigation not simply by failing to tell them that Mr L had entered the child’s room but also by implying that the child had been injured at the childcare centre.

9. The mother was also cross-examined about the other injuries and the bruises that were seen on [X] when he was examined in March 2013.  The mother denied that she had inflicted any of the other injuries or the bruises.  She said she did not suspect that injuries had been inflicted on him and did not suspect Mr L at the time.

10. These other injuries to [X] included a bony injury to the left tibia and two injuries to the right humerus. The mother was asked whether she believed Mr L inflicted the “injuries” on [X] and she replied “Yes”. She was asked whether she chose to ignore the injuries “appearing” on her child. She replied, after a long pause, “I chose not to tend to them in the way I should have”. Asked again about the other injuries, she maintained that the injury to the tibia occurred when [X] caught his leg between the car seat and headrest while he was resisting being placed in his car seat. She also claimed that the injuries to [X]’s right arm were the accidental result of rough play with another child or a fall during a visit to (location omitted) in early 2013. This is inconsistent with the opinion expressed by Dr E that the injuries to [X]’s limbs were accounted for by “forceful pulling and twisting”. In my assessment, the mother demonstrated a degree of equivocation about the cause or causes of these other injuries in her evidence. I could not determine whether this was due to shame or embarrassment, which I am satisfied the mother feels, or unwillingness to acknowledge the extent of her failure to protect [X] or some other reason. The fact of her equivocation, more than 5 years later and after therapeutic interventions, concerns me because this and other aspects of the mother’s evidence are reminiscent of observations made in the PCA Report in 2013.

11. It was put to the mother that at around the time of [X]’s injuries, that is, sometime before March 2013, she had refused to permit [X] to spend time with the paternal grandmother.  It was put to her that she did this because she did not want the paternal grandmother to see the bruising or be required to explain the child’s bruising to her.  The mother denied that she had attempted to conceal the bruising from the paternal grandmother but did admit that she gave “unreasonable” excuses to the paternal grandmother for [X]’s alleged unavailability.  The mother denied that she had given false excuses or said she did not recall what excuses she had given.  I am satisfied that some or all of the excuses given by the mother to the paternal grandmother were likely to have been untrue.  I am satisfied that it was likely that the mother did not want to have to explain to the paternal grandmother bruises on the child. 

1. The mother conceded that she had not supported the child’s relationship with the father and the paternal family.  The time the child spent with the father since his birth has been subject to long and significant interruptions.  The child was born in July 2011.  The parties separated in January 2012.  It seems that the father spent some limited time with the child after separation.  Around March or May 2012 the mother, according to her, began her relationship with Mr L.  About this time the father sent the threatening text message to the mother described above, resulting in the intervention order against the father in July 2012.  Thereafter the child did not spend time with the father until after the guardianship order in favour of the Minister in July 2013.  The Minister (in reality the child welfare authorities) then made arrangements for the child to spend supervised time with the father and, it appears, the paternal grandmother.  After the guardianship order expired in July 2014 it appears no arrangements were made for the child to spend time with the father and the mother said in cross-examination that she had tried to stop [X] seeing his father. The paternal grandmother attended mediation with the mother in an attempt to have the child spend with the paternal family.  There was some initial agreement but this broke down a few weeks later.  The mother agreed that she prevented [X] having contact with the paternal family from 14 September 2014.  Another attempt at mediation was made in July 2015 but no agreement was reached.  The mother agreed she continued to refuse to permit [X] to spend time with the paternal family.  In September 2015 the father commenced proceedings.  Some interim orders for supervised time were made on 4 February 2016 and that increased to overnight once a fortnight in May 2016,

2. The mother was cross-examined about an episode in August 2016 when, according the father, [X] had complained to him that the maternal grandmother had hurt his arm and thrown him on a bed. The father took the child to the Hospital A on 19 August 2016 (that date is not specifically identified but a discharge letter dated 2 September 2016 annexed to the father’s trial affidavit refers to the presentation occurring two weeks earlier) and he was examined. The father apparently reported his concerns to the child welfare authorities although there was no evidence of any follow-up by them. The father’s solicitors wrote to the mother on 22 August 2016 seeking an undertaking that she be present during any time the child spent with the maternal grandmother. There was apparently no response. It was put to the mother in cross-examination that she withheld the child when he was due to spend time with the father during the day on the following Friday 26 August. The mother said she did “not recall” whether she had done so. The mother said that she had taken the child to her GP, presumably in response to the letter, and no bruises or pain were identified. There was no letter or other evidence from the GP to support the mother’s claim.

3. According to a later hospital discharge letter dated 2 September 2016 [X] presented on 19 August 2016 with symptoms of left elbow pain and small bruises over his arms.  The father, for reasons which were not clearly explained in his trial affidavit, took the child to the Hospital A again two weeks later on 2 September 2016. In a discharge summary from the hospital dated 2 September 2016 it was noted that on that date the child was alert and not distressed. There was “nil shoulder pain in contrast to last time”. This was reported to be “2 weeks back”. There was no bruising as was seen during the presentation two weeks earlier when “small bruises over the arms” were noticed. However, there was still “reported discomfort on palpation over the left elbow”. The evidence here, although raising issues of serious concern, does not permit me to conclude that the child was injured by the maternal grandmother or any other person. Further, the father’s trial affidavit did not contain the claim that the child was withheld and I am unable to conclude that the child was withheld by the mother in response to the solicitor’s letter or at all. However, I was not satisfied that the mother’s inability to recall whether she had done so was genuine. The mother often answered questions “I don’t recall”. Allowing for the fact that the cross-examination often referred to events some years ago, I was not completely satisfied that the mother always endeavoured to provide frank and helpful answers.

4. I am satisfied, however, that the mother has not generally supported the child’s relationship with the father or the paternal family. The child spent little or no time with the father or the paternal family from early 2012 until about mid-2013 and then again from about July 2014 to February 2016.  The child’s time with the father was again interrupted between April 2017 and April 2018 following baseless allegations of sexual abuse against the father and Ms C and an allegation of emotional abuse against the father arising from [X]’s “meltdown” at school in November 2017 following the resumption of the child’s time with the father.  I am satisfied, without ignoring other contributory factors, that these interruptions, amounting to about 3 ½ years in total (about half the child’s life), are significantly a consequence of the mother’s failure or refusal to take any active steps to support the child’s relationship with the father and the paternal family. This reflects her hostility and mistrust towards the father. This is exacerbated by the father’s mistrust of the mother and his extreme vigilance and suspicion in regard to the possibility of [X] being injured in the mother’s care, either by her or the maternal grandmother.

5. As mentioned, the mother has sought therapeutic assistance at various times and said that [X] is not any risk of harm in her care.  She said that as a result of the guardianship order for [X] she was ordered to undertake treatment with a clinical psychologist and to have “reunification therapy” with a social worker.  She also said that she was diagnosed with Post Traumatic Stress Disorder.  She said she was referred to a clinical psychologist, Ms A, who provided ongoing psychological therapy and treatment.  She said she was treated for PTSD, anxiety and depression.  She said that she had not been prescribed any medication to treat these conditions but she regularly received ongoing therapeutic support to manage and alleviate symptoms.  She said these conditions did not have effect on her ability to function or her capacity to parent [X].  She also said that, as a result of the recommendations of Dr K in the family report, she had engaged with a psychotherapist, Ms B, in order to deal with her own trauma, to encourage more secure attachment by [X] and to help her develop a more positive view of the paternal family. 

6. The mother has another child, [C], who was born in 2015.  He is now three years old. The mother explained that this child was conceived artificially from an anonymous sperm donation in 2014, presumably some time before the expiration of the guardianship order concerning [X] on 29 July 2014.  The mother said that at that time she did not have a partner and wished to have another child.

7. The mother was asked about [X]’s behaviour at home.  She said [X] sometimes has “meltdowns” at home.  She gave some examples of situations such as if [X] hurts [C] or he doesn’t get his own way about a toy she will attempt to manage him by encouraging him to share, for example, the toy or by turning off the television.  She said that there had been at least “a good two months since a big one”, referring to the last “explosive outburst”.  She said there had been “little ones” but at home he was quite well-behaved.  She said there had been no “issues” with [X] after occasions he had spent time with the father in 2018.

8. The mother made some very serious criticisms of Dr K, the family consultant who prepared a family report pursuant to an order of the court.  The mother also lodged a complaint with Dr K’s professional body.  She claimed that Dr K seemed disinterested in anything that she had to say to her.  She said Dr K aggressively questioned her by saying things like “but the father said this…I used to work in child protection...your child should not be returned to your care”.  She also claimed that a number of times during the interview with Dr K she offered the contact details for her psychologist, the child’s therapist and the child’s school but Dr K said “I have been ordered not to speak to these parties”.  Some of these claims were raised in cross-examination with Dr K.  She denied ever saying “your child should not be returned to your care” but said, that as she had at one point worked in child protection, she may have mentioned this to the mother.  Otherwise she strongly denied the mother’s claims.  She said that it was a matter of discretion whether she spoke to the mother’s psychologist, Ms A, and the child’s therapist, Dr H, and she had not found it necessary to do so.  It might be noted that two reports from Dr H, one dated 4 July 2017 and the other dated 21 November 2017, had been filed before the preparation of the family report, dated 16 March 2018 and, as Dr K said she had read everything on the court file, it is likely she had read Dr H’s reports. 

9. I reject the mother’s claims about Dr K.  Dr K is a family consultant who has been attached to the (omitted) registry of the court since 2011.  She holds a PhD in clinical psychology.  She worked as a senior clinical psychologist for the Child Protection Service at (omitted Medical Centre) from 1998 to 2011 and from 1995 to 1998 she worked as a psychologist with (omitted Medical Service).  Dr K, as an experienced and well-qualified professional, is unlikely to have conducted herself in the way the mother alleged. I accept her denial.

10. My overall assessment of the mother was of a psychologically vulnerable individual.  I accept that she has engaged in extensive therapeutic interventions since [X] was injured in 2012 and 2013.  I accept that she is ashamed and embarrassed about her failure to protect [X] from serious harm.  Nevertheless, I am not satisfied that the mother was entirely frank about her knowledge about the circumstances of [X]’s injuries.  At times her answers were guarded.  At times her responses had an air of detachment from the events and I did not have a sense of strong empathetic concern about [X]’s injuries and subsequent behavioural and emotional problems. Again, this is reminiscent of the observations about the mother in the PCA Report in 2013.

11. The mother said that she did not believe that the father or Ms C had sexually abused or otherwise harmed [X]. There was evidence that the mother had begun to communicate with the father via a communication book over the past four months. While this is encouraging, it is at a time of intense scrutiny by the court. I am satisfied that, as with the father, there is a high level of mistrust by the mother towards the other parent which is likely to militate against co-operative parenting.

12. The maternal grandmother also gave evidence.  Mrs J was asked if she knew who injured [X] in 2013.  She said she did not know at the time but she now knows it was Mr L.  As she attended at the hospital on 2 March 2013, arriving somewhat later than her daughter and Mr L, she was asked if she had then asked her daughter how the injury was caused. She replied that she had. She was asked when she had asked. She said “I asked her on the Friday at day care. We were both outside. I asked her if [X] was ok in the morning…”. She was then asked whether she noticed [X] had a sore arm at day care. She replied “He was crying at day care” and went on to say “[X] was screaming inside.  He was pinned between a table and chair.  He was crying and screaming”.  When asked what she had noticed about his arm she replied “Nothing”.  When asked directly, the maternal grandmother denied that she was suggesting that [X]’s arm was broken at day care.  However, the maternal grandmother’s answers in cross-examination initially clearly suggested that [X] showed signs of having injured his arm at day care on Friday.  This is consistent with the story the mother offered when the child was first examined on the following Saturday at the Hosptial A – failing to mention that she had heard [X] cry or scream when Mr L had entered his bedroom the night before.  The allegation that [X] had injured his arm at day care was investigated by the police, who concluded that it was without substance.  I was perplexed by the maternal grandmother’s answers.  It appeared that she was repeating a script that had been superseded by the mother’s admission that the injury had been caused by Mr L.  When cross-examination of the maternal grandmother was resumed the next day she was more careful in her answers or was unable to recall the events.  I am not satisfied she was a reliable witness. 

13. The maternal grandmother’s evidence was largely irrelevant to any issue but she was cross-examined about the incident in August 2016 when, according the father, [X] had complained to him that the maternal grandmother had hurt his arm and thrown him on a bed.  The maternal grandmother denied that any such incident had occurred.  I am unable to make any finding about this.

The expert evidence

1. The mother relied on a report from Ms A, a psychologist.  Ms A has treated the mother but has not observed the mother with [X] or made any observation based assessment of the attachment between them.  Ms A’s report described the history of her psychological therapy for the mother since 2013.  During 2013, 2014 and 2015 the focus of the therapy was on relationship building, primarily with [X], because the mother had felt “disconnected” from her son and “developing a healthy bond with him was her priority”.  The therapy was also intended to help the mother develop a healthier relationship with her mother.  Other areas of focus included helping the mother develop greater independence, addressing her feelings of being “not good enough” and related issues and encouraging greater confidence in expressing her own feelings and opinions, especially in relation to her dealings with staff from Families SA.  The therapy continued in 2016, including dealing with litigation related issues and the child’s time with the father.  In 2017 the mother told Ms A she was dealing with [X]’s “inappropriate behaviours” and “teaching [X] about emotions and empathy”.  The mother also reported that she felt “more comfortable” with how the father was looking after [X].  She also spoke to Ms A about “generalised anxiety” and a “panic attack” because she was afraid of being in the same court room as the father. 

2. Ms A’s report said:

   … the main focus of therapy was assisting Ms Jarmin to gradually build a stable foundation in her life to establish a sense of being grounded and having confidence in her role as primary carer for her son, [X].  Her verbal responses suggested that she had insight and empathy for her son and his requirements.  However, I did not carry out any face-to-face observations between Ms Jarmin and [X] as part of my therapy.

3. Ms A also discussed what Ms A called the mother's “current pattern of disconnection at times of high stress for her”.  The mother told Ms A that she was not very good at “verbalising this”.  Ms A said the mother “requires more time to learn and reinforce this skill as well as more time to gain confidence at staying present as the precursor to assisting [X] to regulate his emotions as well as being able to set healthy and consistent boundaries for [X]”.

4. My impression of the evidence of Ms A was that, notwithstanding therapeutic interventions stretching over many years intended to strengthen the relationship between the child and his mother, the mother was still unable to assist the child in a fundamental aspect of parental capacity, that is, assisting the child to regulate his emotions or, in other words, promoting  secure attachment.  In my view, this observation supported a central aspect of Dr K’s opinion that despite years of intervention the mother was still unable to demonstrate some fundamental parenting skills.  This is dealt with further below.

5. The mother relied on a series of reports from Dr H.  Dr H has a bachelor’s degree in social work, a master’s degree in conflict management and a PhD based on research into (omitted) She has extensive experience in providing reports in family law proceedings.  She is an “accredited medical health specialist”. She said that she has extensive experience working with children who have suffered trauma. 

6. Dr H has been providing therapy for the mother for some years.  She said that the focus of her engagement with the mother has been to help the mother cope with [X]’s dysfunctional and challenging behaviours which, according to her, are the result of [X] being exposed to “trauma” as a child.  It is noteworthy that none of the reports by Dr H provide a detailed history of the “trauma” to which she believes [X] was exposed to as a child.  Her report of 4 July 2017 records that:

   The mother informed that prior to her separation from [the father] in 2012, [X] as a very young child had been exposed to repeated episodes of physical and verbal family violence perpetrated by the father against the mother.  The mother also stated that post separation her then boyfriend had abused [X], and [X] had been temporarily removed from her care by the Child Protection authorities and placed in the care of the maternal grandmother.

7. Dr H was asked whether she was able to provide particulars of the trauma to which, she believed, [X] had been exposed.  She answered that [X] had been exposed to “family violence and abuse”.  Asked if she was referring to the criminal assaults on the child resulting in broken bones disclosed in 2013 she said that she was referring to the child’s exposure to family violence in utero and family violence perpetrated by the father when [X] was an infant.  When asked again if he was able to provide particulars of the history of family violence she was referring to she said that she was unable to describe the family violence in utero because [X], naturally, could not describe that.  She said she had reached that conclusion based on the mother’s claims that she was subjected to family violence and the child’s symptoms.  Asked whether she had any concrete basis for believing that the child had been exposed to family violence perpetrated by the father she claimed that the father had admitted, in the one session that he had attended with her, perpetrating family violence.  Asked to read her note of that admission she said that her note was to the following effect: “Father advised not perfect parent.  Father advised anger management problems”. She said the father then said he had attended counselling and felt that he had successfully dealt with the problem. When it was pointed out to Dr H that this appeared to fall short of an admission of perpetrating family violence against the mother or exposing the child to family violence she insisted that she had been questioning the father about family violence and his answer should be seen as an admission in that context.  She did not have a note of the relevant question to the father.  

8. Dr H’s oral evidence emphasised her opinion that the child’s behavioural problems were the result of the “trauma” of being exposed to family violence perpetrated by the father while the child was in utero and during infancy prior to the separation of the parties, a period of about six months.  It is surprising that Dr H did not have any concrete information to support her belief that the child had been exposed to high levels of family violence perpetrated by the father.  It is surprising that she took no detailed history from the mother. Her opinion should also be seen in the context of the very serious injuries, in reality criminal assaults, inflicted on the eighteen month old child while in the mother’s care. This is mentioned in Dr H’s reports but was not the subject of any discussion. It is noteworthy that this lack of balance is similar to the observation in the PCA Report that the mother “attributed more weight to the impact of the alleged trauma experienced with Mr Elstone when [X] was seven months old, than the trauma of multiple significant injuries recently experienced”.  I cannot say whether this reflects Dr H’s independent opinion or an unbalanced history provided by the mother.

1. Dr H’s failure to adequately set out the factual basis on which her opinion rested is a failure to satisfy the requirements for the admission of expert opinion set out in Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 and a failure to comply with the Federal Court practice direction guidelines for expert witnesses incorporated in rule 13 of the Federal Circuit Court Rules. As was pointed out in Makita v Sprowles, the factual basis for an opinion may be proved other than by the expert but I am not satisfied the mother’s evidence has done so. Section 69ZT of the Family Law Act provides that parts of the Evidence Act, including Part 3.3 dealing with opinion evidence and expert opinion, do not apply to child-related proceedings. Accordingly, I am satisfied that Dr H’s opinion is admissible. However, pursuant to subsection 69ZT(2) the court may give such weight (if any) to such evidence as it thinks fit. I will approach Dr H’s evidence as a matter of weight rather than admissibility.

2. Dr H also repeated in her report some of the criticisms of Dr K made by the mother. She said she accepted what the mother said, notwithstanding that she had not heard what Dr K had to say in response to these allegations of unprofessional conduct. It appeared to me that Dr H accepted uncritically and unreservedly the claims made by the mother.

3. In summary, Dr H’s reports did not set out the factual basis on which her opinion was based and that factual basis was not proved by other evidence. I do not accept her opinion that [X]’s behavioural difficulties are the result of “trauma” from exposure to family violence perpetrated by the father. Further, I find Dr H’s evidence generally lacked balance and objectivity. Overall, I give her evidence limited weight.

4. In closing submissions counsel for the mother said that the mother did not rely on Dr H’s opinion that [X]’s behavioural difficulties were caused by trauma as a result of his exposure to family violence perpetrated by the father.  He said, nevertheless, that Dr H had observed [X]’s relationship with his mother during about 30 sessions of therapy since 2016.  He said that this was a proper basis for her opinions about the nature of [X]’s attachment to his mother.  Dr H’s oral evidence was generally to the effect that the mother did not demonstrate any particular deficiencies in empathy or attachment.  She said the mother’s empathy and insight as a parent had improved since 2013.  She said the mother only lacked strategies for adequately dealing with [X]’s troubling behaviours.  Given my general concerns about the reliability of Dr H’s evidence I am not satisfied her opinion in this respect is correct.

5. Dr H was also asked to comment on her observation recorded at paragraph 23 of her report of 4 July 2017 that [X] had consistently expressed his fear of the father and Ms C both by verbal and non-verbal expression.  She was asked whether this was consistent with the observation by Dr K that [X]’s interactions with his father and Ms C were “warm and spontaneously affectionate” throughout the observation.  She said it was common where children had been subjected to violence and abuse by a parent and were scared of the parent that they would seek to please as a result of fear.  This interpretation of the observation was not put to Dr K, either directly or indirectly, in cross-examination.  I do not accept it.

6. Dr K, the family consultant, gave evidence. She is a clinical psychologist. Her pre-nominal refers to a PhD in clinical psychology.  As noted, Dr K observed, at paragraph 112 of the family report, that the interactions between [X] and his father and Ms C, the father’s partner, were “warm and spontaneously affectionate” throughout the observation. This was completely at odds with [X]’s purported fear of Mr Elstone as reported by the mother, the maternal grandmother and Dr H.

7. She also doubted, on the basis of her observations, the diagnoses of oppositional defiance disorder and attention-deficit/hyperactivity disorder with which [X] has apparently been diagnosed. Dr K was asked whether she was qualified to diagnose these disorders. She said she was qualified but the preparation of a family report was not the appropriate method for arriving at such a diagnosis or diagnoses or for diagnostically rejecting them. 

8. Dr Ks’s observation of [X] with the mother, and later with the maternal grandmother as well, is important.  She describes this at paragraph 114. The passage is quoted at paragraph [9] above and notes [X]’s anger and defiance towards the mother and maternal grandparents, the mother’s emotional “misattunement” to [X] and her inability to respond sensitively to his emotional needs.

9. Dr K went on to say:

   In this assessment, Ms Jarmin demonstrated an inability to empathise with [X] or assist him to regulate his emotions, both of which are key parenting skills which underpin sensitive parenting capacity.  Sensitive parenting is a critical element in the development of a secure parent/child relationship.  In this assessment, [X] was observably emotionally distressed and dysregulated when interacting with his mother and the maternal grandparents.  Despite the earlier report by (omitted family counselling service) it does not seem that Ms Jarmin has developed an ability to empathise with [X] or respond appropriately to his needs.

10. The reference to (omitted family counselling service) is a reference to a report dated 4 July 2014 which was made following therapy for the mother during the period the child was under the guardianship of the Minister. This was not in evidence. Dr K said, after referring to the (omitted family counselling service) report:

    124.  … Reportedly, by the end of therapy with (omitted family counselling service), Ms Jarmin had enhanced parental reflective functioning skills, she had developed empathy for [X] and was focused on prioritising [X]’s needs.

    125. If Ms Jarmin had in fact gained such insight, empathy and parental reflective capacity, it was not evident during this assessment to the degree that might be expected based on the (omitted family counselling service) report.  It may be that without intensive support, Ms Jarmin has struggled to retain the skills she was reported to have gained. It is noted however, that not only has Ms Jarmin engaged in therapy with (omitted family counselling service), but she has Ms M also consulted various psychologists for herself and for [X].  She has consulted with Ms N, Ms E, Ms J, Ms G, and more lately, Dr S and yet it appears that she is unable to demonstrate these important parenting skills and capacities.  During this assessment, Ms Jarmin did not appear to be able to respond to [X]’s cues appropriately, she appeared intrusive rather than empathic, and she appeared unable to manage [X]’s dysregulated emotional state, and instead seemed to intrude upon him and activate it.  It is noted that the CPS reported (dated 26 June 2013) [a reference to the CPA Report]  Ms Jarmin appeared to have similar difficulties with mis-attunement, “Ms Jarmin did not seem to recognise that this pattern of interaction was distressing for [X], and interpreted [X]’s distress as [X] being clingy and attached to her”.  (CPS report 26 June 2013, page 17).

11. Dr K said at paragraph 128:

    The source of [X]’s behavioural issues appears to be related to the quality of his relationship with his mother.  Despite the number of professionals who have been involved with Ms Jarmin and [X] over the years, Ms Jarmin appeared to unable (sic) to emotionally attuned (sic) to [X] and unable to help him regulate his emotions.  The school also appears to view [X] is a traumatised child, and indeed there is evidence to suggest that he has behavioural difficulties at school.  However, this assessment suggested that in the right emotional environment [X] can cooperate, he is able to demonstrate interest in others, [and] he can be affectionate and happy.

12. Dr K summarised the problem as follows at paragraph 129:

    [X] appears to behave in two completely opposing ways with each parent and this appears to be related to the quality of the relationship he has with each parent.  The question before the Court is how long [X] can sustain this divided sense of self before it becomes firmly entrenched in his personality.  At the age of six the family consultant was of the view that unless significant changes occurred in the mother’s relationship with [X] immediately [X]’s emotional, social, cognitive and physical development is likely to be further compromised. The Court may need to consider which parent is better able to offer [X] an optimal environment in which to develop.  It appears that despite her efforts, the mother has struggled to provide an emotional environment conducive to support [X]’s global development.  Conversely, it appears that despite the father’s disrupted opportunities to build his relationship with [X], he has demonstrable skills in providing an emotional atmosphere to which [X] is positively responsive.

13. Dr K suggested there were two options.  The first was continuing with the present orders or, in other words, the mother’s proposal.  She said this is:

    … unlikely to address the issue of [X]’s divided sense of self.  It is likely that [X] will continue to behave in defiant non-cooperative ways in the mother’s care and it is likely that he will behave in positive and responsive ways with the father.  Concerns remain about the mother’s ability to support [X]’s relationship with Mr Elstone.  It was viewed as highly likely that further allegations would arise in the future under the care arrangements [of this option].  The mother has been unable to assist [X] to regulate his emotions even with extensive input from therapist.  It appears that the mother requires ongoing and extensive psychotherapy.  Whether [X]’s development can wait while the mother addresses her underlying personal issues is doubtful.  Given issues in the past regarding the father’s disrupted time, the family consultant could not be confident in the mother’s ability to support the father’s relationship with the child, and therefore there was little confidence that this arrangement would be of benefit to [X].

14. She described the second option as living with the father and, after a settling in period, spending time with the mother.  She said, at paragraphs 131 and 132:

    The father has demonstrated an ability to emotionally attune to [X], and [X] has demonstrated positive and co-operative behaviours in this relationship.  This arrangement would allow [X] to develop a more positive and integrated sense of self, and it is likely that he would be more positively responsive to a school environment … The resumption of the mother’s time in this care arrangement, would be contingent upon her attendance, and positive progress, with a psychotherapist.

    … the second option is most likely to allow [X] the chance to develop a positive sense of self and improve his mental health.  The family consultant was also of the view that [X] should not be taken to a therapist….  [X] may begin to act in a negative ways that trigger negative responses from adults that has become accustomed to receiving.  This would be seen as [X]’s attempts to create a familiar, emotional environment.  In that case, the father would benefit from input from a professional who has skills in assisting parents to understand the meaning of the child’s behaviour from a developmental/attachment perspective…

15. Dr K expressed the view that it would be “imperative that the mother access psychotherapy as soon as possible, regardless of the outcome of this litigation”. 

16. Dr K’s views were subjected to forceful and lengthy attack in cross-examination by counsel for the mother.  It is unnecessary to canvass all the subjects raised in cross-examination but I will refer to a few.  It was suggested to her that the father would be unlikely to support [X]’s relationship with his mother based on his hostility to her and the evidence that the father had questioned [X] about sexual abuse at the hands of his mother.  Dr K acknowledged this was a subject of concern but pointed out that the child had been subjected to serious physical abuse and there was much distrust between the parents.  She said both parents were “hypervigilant” about the other.  It was suggested that Dr K had not questioned the father about this issue.  She agreed and said that she had understood that the sexual abuse allegations were not pursued by either party.  It was suggested that Dr K’s report was unbalanced and even biased because of this.  I reject that.  In my view, once the allegations of sexual abuse were effectively abandoned it was not necessary for the subject to be pursued in depth by the family consultant.  While I do not suggest that the father’s questioning of the child was irrelevant it was indicative of something on which Dr K had already formed a view, that is, the high level of distrust between the parties.

17. It was also suggested that Dr K paid no attention to the relationship between [X] and [C].  She acknowledged that [C] had been present during the second half of the observation with the mother.  She said the children had not interacted much and [C] had played by himself.

18. It was suggested that the child became distressed during the observation with the mother because the child refused to stop playing with a PlayStation and the mother was unable to divert the child’s attention into other activities.  It was suggested that the circumstances of the child’s observation with the father were different and the observation of the child and the mother was skewed and inaccurate.  Dr K rejected that suggestion.  She said that she had not had any control over the child’s activities before the observation began.  She said that in both cases the child had been playing with a PlayStation before the observation.  She said that the child was in the crèche at the court before each observation.  She said that she told each parent before the observation that [X] was playing on a PlayStation.  She said the environment facing each parent and the instructions given were the same.

19. The same subject was taken up in cross-examination by counsel for the independent children’s lawyer who suggested that the extreme distress exhibited by the child during the observation with the mother and maternal grandmother was merely coincidental or the result of the child being tired by the time of the observation with the mother, which followed the observation with the father.

20. Dr K rejected that suggestion.  She said the skills demonstrated by the father during the observation were those that supported cooperation and interaction and underpinned sensitive parenting.  She said that if [X] became distressed the father was able to use these skills.  In the observation with the mother she said that she could see the mother attempting to cope but that she lacked the skills to do so.  She said the father demonstrated key parenting skills indicative of sensitive parenting.  She said this encouraged secure attachment by the child.  She said these skills were not demonstrated by the mother. Dr K also said that her assessment of these matters was not simply based on the observations but she gave the observations significant weight.

21. Dr K listed some of the other matters she had taken into account.  She said that [X] had been hurt in his mother’s care in 2013.  This indicated to her that there were protective issues at that time and that protective issues can indicate difficulties in the attachment relationship between the child and parent.  She said that secure attachment is a protective factor in a child’s relationship with the parent.  She said at the time [X] was injured the mother described her parenting as “disconnected” and “robotic”.  She said that the child’s present disruptive and aggressive behaviours as a seven year old indicate that he is troubled.  She said that a “snapshot of time” of the child with the father showed that the father can support behaviour by [X] which is cooperative, interactive and lacking aggression.  She said that in the father’s care the child can “experience himself as a different child”.  She said that if the mother and father do not trust each other she saw no prospect of [X] having the benefit of that relationship with his father in the mother’s care.  She said she worried for the child if something did not change.

22. Counsel for the independent children’s lawyer put to Dr K that there were some indications of an improvement in the relationship between the mother and the father, such as the use of a communication book.  Dr K pointed out that this was a very recent development, in the previous four months or so, and occurred at a time of maximum scrutiny by the court.  She expressed doubt that it would continue. 

23. It was put to Dr K by counsel for the independent children’s lawyer that she had not given sufficient recognition or any recognition to the various steps taken by the mother, including engaging in psychotherapy to address her parenting deficiencies, and completion of a degree in psychological science.  Dr K agreed that that the mother’s engagement in psychotherapy was a positive step, as was her completion of tertiary study.  However, she pointed out there had been positive reports of change by the mother in the past, including in the (omitted family counselling service) report.  I would summarise Dr K’s evidence on this issue as generally unconvinced about the depth and permanence of any change in the mother’s parenting capacity.

24. Counsel for the independent children’s lawyer asked whether shared care of [X] was practicable. Dr K said that the parties did not have a relationship to support shared care of the child because this requires an amicable relationship.

25. The independent children’s lawyer tendered a family report prepared in July 2016 by Ms Y.  Ms Y was not available for cross-examination but no objection was taken to the tender of the report.  Counsel for the mother relied, in particular, on this sentence:

    Observations of each party’s time with [X] were made throughout the Assessment.  Informal observations of [X]’s interactions with his mother suggested a strong, loving and secure primary attachment.

26. It was put to Dr K that this observation was inconsistent with her observations.  She agreed but said she did not understand what was meant by “informal observations”.  She implied that she did not accept the accuracy of the observation.

27. Elsewhere in Ms Y’ report she acknowledged attachment issues: “It was undisputed that [X] had attachment difficulties with his mother and this was being addressed with [X]’s therapist”.  She went on to say:

    With respect to [the mother], it was most unfortunate that [X] had been harmed in her care when an infant, however it did appear that since that time [the mother] had been committed to providing [X] a safe and secure parenting environment, as well as attending to his psychological needs through regular and ongoing involvement in therapy.

28. To the extent that these passages suggest that [X]’s “attachment difficulties” (in reality, insecure attachment) to his mother have resolved or that insecure attachment has been replaced by secure attachment I reject that suggestion. 

29. It is noteworthy that Ms Y observed that, contrary to assertions, [X] was observed to have fun with his father and the observations suggested a “strong, secure and meaningful” attachment to his father, Ms C and the paternal grandmother. 

30. I accept the conclusions of Dr K.  I found her to be a convincing witness.  In my view, there is strong evidence that [X]’s disturbed or insecure attachment to his mother results from deficiencies in her parenting capacity.  Those deficiencies, in particular her lack of empathy and emotional attunement, contributed to her failure to protect the child from the assaults of Mr L discovered in 2013.  This was identified in the PCA Report.  The deficiencies in parenting capacity displayed during the observation by Dr K are strikingly similar to those identified and the prognosis in the PCA Report.  I accept Dr K’s opinion that [X]’s continued troubling behaviours at home and school are probably the result of a lack of sensitive parenting skills by the mother and resulting attachment difficulties for [X]. Ms A’s report indicates that the mother has yet to fully achieve these skills, after almost 5 years of therapeutic intervention. I accept the validity of Dr K’s concern for [X] if nothing changes.

The legislative pathway

1. The objects of Part VII of the Family Law Act 1975 (the Act) are set out in section 60B(1). Subsection (1)(a) provides that it is an object of the Act to ensure that the best interests of children are met by:

   ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;…

2. Section 60B(2) provides that the principles underlying the objects of the Act (except when it is or would be contrary to the child’s best interests) include:

   a)  children have the right to know and be cared for by both of their parents …; and

   b)  children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development …; and

   c)   parents jointly share duties and responsibilities concerning the care, welfare and development of their children …

3. Section 60CA requires that a court must regard the best interests of the child as the paramount consideration when deciding to make a particular parenting order in relation to a child. The considerations to be taken into account in determining what is in the child’s best interests are listed in section 60CC. Section 61DA requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child unless there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or family violence.

4. Section 65D(1) provides that the court may make such a parenting order as it thinks proper, subject to the provisions of sections 61DA and 65DAB (concerning parenting plans).

5. Section 65 DAA(1), which is headed “Equal time”, provides:

   … if a parenting order provides (or is to provide) the child’s parents are to have equal shared parental responsibility for the child, the court must:

   a)consider whether the child spending equal time with each of the parents would be in the best interest of the child; and

   b)consider whether the child spending equal time with each of the parents is reasonably practicable; and

   c)if it is, consider making an order to provide (including a provision in the order) the child spend equal time with each of the parents.

6. Section 65 DAA(2), which is headed “Substantial and significant time”, provides:

   … if

   a)a parenting order provides (or is to provide) the child’s parents are to have equal shared parental responsibility for the child, and

   b)the court does not make an order (included provision in the order) for the child spend equal time with each of the parents;

   the court must:

   c)consider whether the child spending substantial and significant time with each of the parents would be in the best interest of the child; and

   d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   e)if it is, consider making an order to provide (including a provision in the order) the child spend substantial and significant time with each of the parents.

7. Section 65DAA(5) provides that in determining what is reasonably practical for the purposes of subsections (1) and (2) the court must have regard to:

   a)how far apart the parents live from each other; and

   b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial significant time, with each of the parents; and

   c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind: and

   d)the impact that an arrangement of that kind would have on the child: and

   e)such other matters as the court considers relevant.

8. The competing proposals were, for the father, that the child live with him and, after a period of supervision, spend time with the mother. In the alternative, he sought an equal time arrangement. The mother initially sought a continuation of the existing orders but in final submissions proposed a graduated increase in time to equal time. The independent child’s lawyer proposed an equal time arrangement.  

9. Section 60CC(1) provides that in determining what is in the child’s best interests the court must consider the matters in subsections (2) and (3). Subsection (2) provides that the primary considerations are:

   a.the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b.the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

10. Subsection (2A) provides that in applying the considerations in subsection (2) the court is to give greater weight to the considerations set out in paragraph (2)(b). In this case there is a history of physical abuse of the child and family violence. I am satisfied that the causes and consequences this, particularly the abuse of the child which was contributed to by the mother’s neglect, pose a continuing risk of psychological harm to the child.

11. Subject to that factor, I am satisfied there is benefit to the child in having a meaningful relationship with both of his parents.

12. In determining what is in the best interests of the children the court must, in addition, consider the matters set out in subsection 60CC(3). These are:

(a) any views expressed by the children…

1. The child was interviewed by Dr K.  Her description of the child’s answers to her questions about his views about his parents and grandparents is notable for the apparent reluctance and reservation of the child in answering.  She concluded that his answers, including negative remarks about his father, Ms C and the paternal grandmother, were not consistent with her direct observations of the relationship with those persons.  She concluded he was very amenable to suggestion and that was of concern.  She concluded he was a confused and vulnerable child.  In the circumstances I give little weight to the child’s expressed views.

(b) the nature of the relationship of the child with:

(i) each of the child’s parents; and

(ii) other persons (including any grandparent or other relative of the child)

1. The child has a close relationship to his father. This is despite the child’s relationship with his father being seriously disrupted over about 3½ years of the seven years of his life. The father has appropriate parenting skills and is able to help the child regulate his emotions. He was observed by the family consultant to have a “warm and spontaneously affectionate” relationship with his father.

2. [X] appears to have a close relationship with the paternal grandmother.  She has endeavoured to create and maintain a relationship between [X] and herself and the paternal family since he was young.   

3. His relationship with his mother has been marked by physical abuse at the hands of her former partner and neglect by her, resulting in an order placing the child under the guardianship of the Minister. Dr K’s assessment was that the relationship of the child and his mother remained deeply troubled to the extent that his long term psychological health was threatened if he remained living with her. I accept that assessment.

4. The evidence about [X]’s relationship with [C] was scant. Dr K said that they did not interact during her observation. I cannot form any definite view about the nature of the relationship of [X] with [C].  Nevertheless, I accept that they are siblings living in the same household and there must be some relationship between them.

5. The evidence suggests that the child has spent considerable time with the maternal grandmother and, perhaps, the maternal grandfather.  She gave evidence but the maternal grandfather did not.  The Minister placed [X] in the care of the maternal grandmother for the duration of the guardianship order.  It might be expected from that fact that the relationship between [X] and the maternal grandmother would be close.  However, it is to be noted that [X]’s distress during the observation by Dr K continued despite the efforts of the maternal grandparents to calm him.  I am also conscious that I was unable to make any definite finding about the father’s allegation that [X] reported to him in 2016 that the maternal grandmother had hurt him.  I am unable to make a definite finding about the nature of the relationship between the child and the maternal grandparents.

(c) the extent to which each of the child’s parents have taken, or failed to take, the opportunity:

to participate in making decisions about major long-term issues in relation to the child; and

to spend time with the child; and

to communicate with the child;

1. The mother has principally been responsible for decisions about long-term issues in relation to the child.  The mother has made the decisions about [X] attending therapy, with Dr H for example.  The father was effectively excluded from the child’s life for about 3 ½ years and the mother has, I am satisfied, not encouraged the child’s relationship with him.  In this difficult context the father has sought engagement in decisions about [X]’s life, to spend time with him and to communicate with him. 

(ca) the extent to which each of the child’s parents have fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

1. There was no evidence that either parent has failed to fulfil their obligation to maintain the child.

(d) the likely effect of any changes in the child circumstances, including the likely effect on the child of any separation from:

either of his or her parents; or

any other child, or other person (including any grandparent or other relative the child), with whom he or she is been living;

1. Dr K has given evidence, which I accept, that it is in [X]’s best interests to live with his father.  If such an order were to be made I accept that the child might become distressed for some period following separation from his mother. Dr K adverts to that possibility.  However, in my view, this factor, while it must be taken into account, is outweighed by other factors. 

(e) the practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

1. This factor is not relevant in this case.   

(f) the capacity of:

i. each of the child’s parents; and

ii. any other person (including any grandparent or other relative the child;

to provide the needs of the child, including emotional and intellectual needs;

1. The case is really about the capacity of the parents to provide for the needs of [X], particularly his emotional, intellectual and developmental needs.  I have concluded that the mother’s capacity to provide for these needs is limited.  I have concluded that many of the factors identified in the PCA Report about the mother’s parenting capacity continue to exist and were apparent in the family assessment and in the mother’s evidence.  These include ambivalence about the degree of her responsibility for [X]’s abuse in 2013, emotional detachment from [X], continued assertion that some of [X]’s injuries identified as inflicted were accidental, a lack of insight and empathy for [X]’s emotional experiences and a lack of insight into the attachment difficulties he has experienced and her role in this.  The consequence of this appears to be a history of troubled and dysregulated behaviour by [X].  This has been variously diagnosed as Oppositional Defiance Disorder and ADHD or both.  Notwithstanding the relative brevity of the observation conducted for the purpose of the family report by Dr K I am satisfied that what she observed was not accidental or coincidental but a reflection of the real relationship between [X] and his mother and, to an extent, the maternal grandparents.  I accept that there is a proper basis for Dr K’s suspicion that these diagnoses are wrong and that the real source of [X]’s behavioural difficulties lies in his relationship with his mother, particularly in attachment.  I accept her view that if [X] continues to live with his mother he is likely to be deprived of his best chance of healthy psychological and emotional development.

2. The father demonstrated sensitive parenting skills.  He was able to calm [X]’s distress and help him regulate his emotions during observation.  While I accept that this observation was a “snapshot in time” I am satisfied that the observation was correct and that [X] has a good relationship with his father and it is in [X]’s best interests that he live with his father. 

(g) the maturity, sex, lifestyle and background … of the child and of either of the child’s parents…

1. This is not relevant in this case.

(h) if the child is and Aboriginal child or a Torres Strait Islander child…

1. The child is not an Aboriginal or Torres Strait Islander child.

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

1. While both parents were responsible for behaviour that was harmful to [X] early in his life I am satisfied that, in more recent years, both parents have, within the limits of their respective capacities, sought to do their best for [X].  The hostility and suspicion that the parties have continued to display toward each other is not in [X]’s best interests.  Regrettably, I saw few indications that this was likely to change in the near future.  

(j) any family violence involving the child or a member of the child’s family;

1. A family violence order applies against the father for the protection of the mother.

(k) if a family violence order applies…

1. The evidence suggested that the basis for the family violence order was a somewhat threatening SMS sent to the mother in 2012.  The order remains in place.  I am satisfied the father regrets his action and has taken steps to address his impulsive and angry responses. 

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

1. This is not relevant.

(m) any other fact or circumstances that the court thinks is relevant.

1. There are no other relevant factual circumstances.

2. The father sought sole parental responsibility. The present orders, which the mother seeks to maintain, provide for shared parental responsibility.  The independent children’s lawyer proposed shared parental responsibility.  I have given this issue particular consideration.  Given the history of hostility between the parties I am sceptical that there is any real possibility of the parties consulting and reaching agreement about parental responsibility issues.  However, at the conclusion of the trial the parties agreed that [X] would no longer receive therapy from Dr H and that there would be a joint referral to another, identified, therapy provider.  The mother also indicated through her counsel that she would continue with therapy with Ms B.  The father said that he would seek counselling to engage with his ill-founded suspicion of sexual abuse of [X].  I am satisfied that there are some indications that the parties are willing to take steps to deal with a complex set of circumstances affecting the best interests of this child.  All in all, I am satisfied that it is in the child’s best interests that both parents remain involved in [X]’s life and, so far as possible, share decision-making about long-term issues.  I will make an order for shared parental responsibility.

3. Consequently it is necessary to consider the provisions of section 65DAA.

4. As noted by the time of final submissions the mother proposed that the child spend 6 nights a fortnight with the father progressing to equal time when he turned 8 years old in a few months. The independent children’s lawyer took a similar position. The father’s position remained the same, that is, the child live with him and, after a 3 month transition period, begin to spend time with the mother, initially supervised and then from after school Friday to Sunday or, in the alternative, equal time shared care.  The father’s submissions did not seek to explain what was intended to be achieved by a period of supervised time and I am not satisfied that supervised time is likely to achieve any purpose.  I am satisfied that the risk of physical abuse of the child while with the mother is low, notwithstanding my inability to make findings about the allegation against the maternal grandmother.  Dr K recommended that [X] spend “a period of time in the father’s sole care” and that the resumption of the mother’s time be contingent upon her “attendance, and positive progress, with a psychotherapist”.  In cross-examination Dr K appeared to retreat somewhat from this recommendation.  However, she suggested that a transitional period of about one month where [X] does not see his mother may be appropriate to allow him to settle into his new living arrangements.  As for the recommendation that any resumption of the mother’s time be contingent upon attendance with a psychotherapist and “positive progress” I am not satisfied that is practicable.  The mother has received psychotherapy for a long time.  I have a serious doubt about its effectiveness in the mother’s case.  In any event, the mother intends to consult Ms B, a psychotherapist. 

5. I do not consider equal time to be in the child’s best interests.  I accept Dr K’s opinion that the father has “demonstrated an ability to emotionally attune to [X], and [X] has demonstrated positive and co-operative behaviours in this relationship”.  I accept her opinion that [X] living with the father will allow [X] “to develop a more positive and integrated sense of self, and it is likely that he would be more positively responsive to a school environment”.  I am satisfied that, for these reasons, it is necessary that [X] live with the father for most of the time.

6. Because I do not propose to make an order for equal time it is necessary to consider the provisions of section 65DAA(2). I am satisfied that it is in the best interests of the child to spend substantial and significant time with the mother. This will permit [X] to continue a meaningful relationship with his mother, subject to the overriding necessity to protect him from psychological harm. This will also permit him to develop a relationship with his brother [C].

7. Because of the hostility and distrust between the parents it is desirable that the present changeover arrangements where [X] is collected from and returned to school continue.  I am also satisfied that frequent changeovers are  undesirable and impracticable for the same reason. 

8. I propose to make orders that [X] live with his father, commencing immediately, and after four weeks, that is, Thursday 18 October 2018, he is to commence spending time with his mother from after school Thursday to before school on Monday or, if Monday is a public holiday, to before school Tuesday in alternate weeks.

9. I propose to make orders that [X] spend half of each school holiday with his mother, commencing in the holidays beginning in the 2018 Christmas holiday.

10. As for special days and birthdays, given my concern about changeover, I propose to give the parties an opportunity to negotiate about those issues before I make orders. I will allow 14 days for that to happen.

I certify that the preceding one hundred and thirty-seven (137) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 21 September 2018

CORRECTIONS:

1. Reasons for Judgment: Page 28, Paragraph 77 twenty-eighth line delete “Martha our Linda Watson, that change might yet”.

2. Reasons for Judgment: Page 39, Paragraph 117 second line delete “children” and insert “child”.

CORRECTIONS 17 January 2019:

1. File Number page 1, the hearing dates of 22 and 23 August 2018 added.

2. File Number page 1, date of last submission amended to 23 August 2018.