Jay and Tait (No 2)

[2020] FamCA 978

FAMILY COURT OF AUSTRALIA

JAY & TAIT (NO. 2) [2020] FamCA 978

FAMILY LAW – CHILDREN – Best interests – supervision imposed to protect child from harm from being exposed to family violence and abuse

Family Law Act 1975 (Cth)
Australian Passports Act 2005 (Cth)

Banks & Banks (2015) 93-637
Cox & Pedrana (2013) FLC 93-537
McCall & Clark (2009) FLC 93-405
Vigano & Desmond (2012) FLC 93-509

APPLICANT: Ms Jay

RESPONDENT: Mr Tait

INDEPENDENT CHILDREN’S LAWYER: Forest Glen Lawyers

FILE NUMBER: BRC 6316 of 2013

DATE DELIVERED: 20 November 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 24, 25, 26 & 28 August 2020 and 28 September 2020

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lyons

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Forest Glen Lawyers

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. All parenting plans and previous parenting orders are discharged.

2. The child, Z Jay-Tait, born on … 2007, live with the mother.

3. The mother have sole parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth)) in respect of the child, save that the mother shall, prior to making a decision about any such issue:

   (a)inform the father in writing of the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision; and

   (b)allow the father fourteen (14) days after the provision by her of the information referred to above to respond to the same in writing; and

   (c)consider the father’s response, if any, when coming to her decision about any such issue; and

   (d)inform the father of the final decision she has made with respect to that issue as soon as practicable thereafter.

4. Each parent has responsibility for decisions about the day to day care, welfare and development of the child when she is in that parent’s care.

5. The child shall spend time with the father at all reasonable times as may be agreed between the parties in writing and, failing agreement, as follows:

   (a)for no less than two (2) hours each fortnight at the K Town Contact Centre, with the father to meet all of the costs, other than those associated with any required Intake Session for which each party shall be personally responsible, associated with this time;  and

   (b)on her birthday, the father’s birthday and Father’s Day: for no less than two (2) hours at the K Town Contact Centre, with the father to meet the costs of the same;  and

   (c)in the week in which Christmas Day falls:  for no less than two (2) hours at the K Town Contact Centre, with the father to meet the costs of the same.

6. The child shall communicate with the father by telephone, Skype, FaceTime or other similar facility (the communication) at such times as are determined and facilitated by the mother.

7. During the time the child spends time with or communicates with either parent, that parent shall:

   (a)respect the privacy of the other parent and not question the child about the personal life of the other parent;  and

   (b)       speak of the other parent respectfully;  and

   (c)not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.

8. Each parent keep the other informed of the details of the child’s doctors, health care and other treatment providers and of the details of any school, educational facility or extra-curricular activity provider at which the child attends.

9. By this Order any treating medical practitioner is hereby authorised to release to both parents such medical information about any medical emergency, significant health issue or significant illness suffered by the child as they are lawfully able to provide about the child.

10. By this Order, any school, educational facility or extra-curricular activity provider at which the child attends is authorised to provide each parent with such information as they are lawfully able to provide about the child and her progress.

11. If there is a cost associated with the provision of any information or documents by the child’s doctors, health care and other treatment providers or school, educational facility or extra-curricular activity providers, that expense shall be borne by the parent requesting the information.

12. Each parent inform the other parent as soon as reasonably practicable of any medical emergency, significant health issue or significant illness suffered by the child.

13. Each parent shall keep the other parent informed at all times of a contact telephone number and an email address and shall:

    (a)notify the other as to any change in those details as soon as practicable after such change and no later than after forty-eight (48) hours of the same; and

    (b)notify the other parent at least sixty (60) days prior to relocating their residence beyond a fifty (50) kilometre radius from where they currently reside.

14. On the proviso that, unless otherwise agreed by the parents in writing, such travel occur during school holiday periods, the mother is permitted to remove the child from the Commonwealth of Australia for the purpose of holiday travel to any country that is a party to the Hague Convention on the Civil Aspects of International Child Abduction and, with the written consent of the father, to any other country.

15. The child, Z Jay-Tait, born on … 2007 is permitted to leave the Commonwealth of Australia for the purpose of international holiday travel with her mother as provided for in this Order and, in order to facilitate such travel, the child is permitted to have an Australian travel document as that term is defined in and for the purpose of the Australian Passports Act 2005 (Cth).

16. In the event that the mother wishes to remove the child from the Commonwealth of Australia pursuant to Clause (14), she shall provide the father with no less than sixty (60) days’ notice of the intention to travel overseas and shall provide details of the destination and proposed departure and arrival dates.

17. No less than thirty (30) days before date of departure from the Commonwealth of Australia, the mother shall provide the father:

    (a)a copy of a return ticket for the child, evidencing the date of departure and date of return to the Commonwealth of Australia; and

    (b)a copy of an itinerary which contains sufficient contact details to enable telephone or Skype communication between the father and the child to occur in the manner provided for in this Order; and

    (c)a copy of documents evidencing the existence of travel insurance for the child for that particular trip.

18. The mother is entitled to possession of the child’s passport.

19. Save for in therapeutic counselling, neither parent shall discuss these proceedings, nor the allegations made in them, with the child, nor involve the child in any discussions regarding any issue in dispute between them.

20. Each parent is at liberty to provide a copy of the Family Reports of Ms J dated 22 June 2017 and 21 October 2018 and the Family Report of Ms H dated 17 August 2020 and a copy of the Reasons for Judgment delivered on 20 November 2020 to any treating counsellor or psychologist upon whom they or the child attends and to the Department of Child Safety, Youth & Women.

AND IT IS FURTHER ORDERED THAT

1. Save as is otherwise ordered herein, no party is permitted to use any documents provided to them in the course of this proceeding for any purpose other than any appeal in respect of these Orders.

2. The Independent Children’s Lawyer is discharged unless a Notice of Appeal is filed by any party within the time prescribed or such other time as allowed by Order.

3. All outstanding Applications are dismissed.

4. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders

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

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6316 of 2013

Ms Jay

Applicant

And

Mr Tait

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. These proceedings require the determination of those parenting orders which are in the best interests of nearly 13 year old Z Jay-Tait, who was born in 2007.

2. Z’s mother was born in 1974. Her father was born in 1971. Her parents cohabited from about October 2006 until November 2009 and, after continuing to work on their relationship whilst living separately thereafter, finally separated in December 2010, at which time Z was just three years of age.

3. The mother has another child: Ms Y, who was born in 1998.  Whilst Ms Y no longer lives with the mother and Z, I accept that Z has a good relationship with her sister. Z’s mother has re-partnered with Mr E, who was a witness in her case.  Mr E has a daughter (X) who lives primarily with him.  The mother, Z, Mr E and X started to live together in about May 2020. I accept that Z has a good relationship with Mr E and X.

4. The father has children other than Z: 26 year old Mr F and 24 year old Ms G, each of whom have their own children.  Whilst there is no particular evidence about Z’s relationship with Mr F and Ms G, I accept that it is likely she has relationships with each of them. Z’s father has re-partnered with Ms D, who was a witness in his case. On the evidence before me, the father and Ms D have recently become engaged and intend to marry sometime in the future.  I accept, as the father made completely clear, that he will not comply with any future order that in any way prevents Ms D from coming into contact with Z.  I also accept the father’s clearly stated position that he will not spend any time with Z if that time is ordered to occur under supervision:  his evidence was to the effect that, should such an order be made, he will “walk away” and wait for Z to re-engage with him in the future.

Brief overview of past events and orders

1. After a defended hearing, Judge Lapthorn made final parenting orders on 13 May 2016 (the May 2016 order). The May 2016 order provided that Z live with her parents in a week-about arrangement and that they have equal shared parental responsibility for major long-term decisions about her.

2. It is uncontroversial that the May 2016 order was implemented until about December 2016, when the father alleged that Z had disclosed to him that she had been abused by her maternal step-grandfather.  Whilst this issue is the subject of further consideration below, it is relevant to note at this stage that, when nearly nine year old Z was interviewed by police, she did not make any disclosures of criminal behaviour.

3. I accept that, when the father learned that Z had not made any disclosures to police, he was very upset and angry.  I accept he yelled at Z and called her a liar – I accept his actions and behaviours toward Z on that occasion in December 2016 resulted in her being very, very upset. 

4. In February 2017, the May 2016 order was suspended.  Further orders were made for Z to spend supervised time with her father.  At the time of the first Family Report interviews in June 2017, she was spending one and a half hours per fortnight with him at the local Contact Centre and a further four hours, supervised by Ms G, her older paternal half-sister.  I accept the mother agreed to Ms G supervising this time because the father did not have anyone else who could supervise.

5. In June 2017, it was ordered that Z’s time with her father return to unsupervised time and occur each alternate weekend (from after school Friday until the start of school on Monday) and on each Wednesday night. In November 2017, further orders provided for Z to spend holiday time with her father.

6. In 2018, Z made a statement to a school friend that she was going to kill herself.  I accept that Z’s school addressed Z’s comment. I also accept that it was made in the context of Z feeling excluded from school friendships. There is no evidence to suggest that, since her comment was addressed by the school and her parents, Z has repeated the same: that is, there is no evidence that Z has subsequently made any further threat of engaging in self-harm.

7. When interviewed for the October 2018 Family Report, the mother thought that the existing arrangement – whereby Z was spending alternate weekends and time on a Wednesday night with her father – was working well for Z, save that, on her recounting, the father did not support their daughter’s participation  in her extra-curricular activities on Friday and Wednesday nights. Given this, the mother was open to changing the mid-week evening to another night, so that she could ensure Z attended her activities.

8. Orders made on 6 November 2018 included that the mother have sole parental responsibility for making decisions regarding Z’s long term care, welfare and development; that she spend time with her father from after school Friday until before school Monday each alternate weekend and from after school Wednesday until before school Thursday each week during school terms. It was also ordered that she spend time with each parents on a two-week about basis during the summer school holidays. The November 2018 orders restrained the father from consuming alcohol when Z was in his care: he was also restrained from bringing Z into any contact with Ms D.

9. In about February 2020, Z’s parents agreed that she would spend time with her father from after school Wednesday until before school the following Monday in each fortnight during school terms: that is, that she live primarily with her mother and spend five nights per fortnight with her father.  Other matters about which the parents reached agreement on 11 February 2020 are as outlined in the handwritten agreement reflecting those terms.[1]

   [1]Exhibit 17.

10. Until I made orders on 28 August 2020 suspending the operation of the order which provided for Z to spend unsupervised time with her father (for the reasons expressed then), this was the parenting regime in force at the time of the hearing.  I also made a number of injunctive orders on 28 August 2020 to restrain the father from taking Z into his care, communicating with her, attending at her school or coming within one kilometre of her mother’s home.

11. By way of broad overview, the Orders made on 28 August 2020 were made to protect Z from the risk that she may be further exposed to aggression between the father and Ms D. The Orders were also made in circumstances where the father made it very clear – in both his evidence when cross-examined and in the submissions he made on that day – that he:

    a)did not intend to comply with an earlier order that he use his best endeavours to ensure that Ms D was not present at his property when Z was there; and

    b)did not intend to comply with any order which would prevent him from allowing Z to come into contact with Ms D; and

    c)would not spend any time with Z if their time together was ordered to be supervised at a Contact Centre.

12. The father’s position did not change between 28 August 2020 and when the matter returned for the last day of hearing on 28 September 2020.  Z did not spend any time with her father between 28 August 2020 and 28 September 2020 – an occurrence which I consider to be the consequence of her father’s decision to implement his stated position.  I have no doubt that, had the father sought to spend supervised time with Z in that period, the mother would have facilitated the same.

Competing proposals

The mother

1. Whilst the mother’s ultimate submission was that Z should only spend time with her father under supervision at a Contact Centre, that was not always her position.

2. At the time of the June 2017 Family Report interview, the mother’s formal position (according to her filed documents) was that Z should live with her and spend only supervised time with her father; she also sought an order according her sole parental responsibility for the major long-term issues relating to Z.  However, Ms J noted in the June 2017 report that, at interview, the mother appeared less clear about the best way forward.

3. When interviewed in September 2018, the mother told Ms J that she wanted the existing parenting regime (by which Z was living primarily with her and spending each alternate weekend, Wednesday each week and half holidays with her father) to continue, save for some tweaking to enable Z to attend extra-curricular activities. She also proposed that, as there had been so much conflict historically with decision-making and she and the father had been unable to easily resolve such issues for various reasons, she be accorded sole parental responsibility for the major long-term issues relating to Z.

4. In her Amended Initiating Application filed 5 June 2020, the mother sought that she be accorded sole parental responsibility for the major long-term issues for Z. She also proposed that Z live primarily with her and spend time with her father as follows:

   a)during the school term: every second week from after school Wednesday until before school Monday; and

   b)during the autumn, winter and spring school holidays: for half of each school holiday period, on the basis that the first half and second half alternate between the parents; and

   c)during the summer school holidays: in alternating two week periods, with any remaining days to be divided equally between the parents and Z to spend any additional nights with her father.

5. The mother then also proposed that Z spend time with both parents on her birthday and that, on each of Mother’s and Father’s Day, she spend between 10.00 am and 2.00 pm with the relevant parent if not otherwise spending time with them on that day.  She proposed that Z spend Christmas Day and Easter Sunday with whichever parent she was otherwise with and that the child be at liberty to contact each of her parents at any time. The mother proposed that changeovers on non-school days occur at P Park in K Town at a time to be agreed or, failing agreement, at 4.00 pm. She also sought an order that Z continue to attend B School and that, in the event her enrolment there ceased, the parents make genuine efforts to come to an agreement about a new school: if such agreement could not be reached, she proposed that she be permitted to make the final decision about the same.

6. It is important to record that, as well as the orders summarised above the mother also sought the following specific orders about the father’s behaviours:

   a)that he be restrained from consuming alcohol in the 24 hours prior to caring for Z or while she is in his care and also be restrained from bringing Z into contact with Ms D; and

   b)that he regularly attend on a treating psychologist – no less than once every three months – and that this practitioner be authorised to discuss his  treatment and compliance with the same with her; and

   c)that he be restrained from taking Z to any medical practitioner other than the practitioner upon whom she currently attends and also be restrained from taking Z to the police or the Department of Child Safety, Youth & Women or having her interviewed by the same or undergo any assessment without the mother’s written consent; and

   d)that he be required to tell her if he was arrested at any time or charged with any offence; and

   e)that he immediately contact her and release Z into her care if he was at risk of harming himself whilst Z is spending time with him; and

   f)that he be restrained from discussing with Z the allegations that her  maternal step-grandfather had abused her.

1. I accept that, when interviewed by Ms H in July 2020, the mother told her that she believed the current arrangement was working well for Z; she said she preferred block time rather than a week-about arrangement and was happy with the school holiday time and all of the then current arrangements.

2. However, the mother’s position changed after she received Ms H’s Family Report (the August 2020 report) which recommended either that Z’s time with her father be supervised until certain particularised investigations occurred or remain supervised at a Contact Centre. 

3. As at 20 August 2020, the orders sought by the mother were as contained in the Case Outline filed that day. These included that: Z’s time with her father be supervised and occur fortnightly at the K Town Contact Centre (with the father to meet the costs of this time); in addition, Z spend supervised time with her father for two hours on the last Saturday of each month, with such time to occur at a public place and be supervised by someone agreed (not being a person who is a family member of the father) or nominated by the mother; Z spend time with her father, supervised and in a public place, on her birthday, Christmas Day, Father’s Day and the father’s birthday; Z communicate with her father by telephone each Tuesday, Thursday and Sunday evening. The mother also proposed that, upon Ms D participating in a hair follicle test and carbohydrate deficit testing as randomly requested by the Independent Children’s Lawyer (who was, implicitly, to remain engaged in the matter), the parties engage in a mediation no less than three months after the completion of the proceedings to ascertain whether the father’s home environment is free from physical and emotional harm: if the results of tests undertaken by both the father and Ms D indicated that their use of substances and alcohol was acceptable to a “standard pathology acceptance level”, then Z spend time with her father from 11.00 am Saturday until 11.00 am Sunday each alternate weekend. 

4. The mother also proposed that a number of other orders be made (as detailed in her Case Outline filed 20 August 2020), including that the parties be restrained from initiating legal proceedings “without just cause” within two years of completion of these proceedings.

The father

1. At the time of the June 2017 Family Report interview, the father’s formal position (according to his filed documents) was that he sought a return to the week-about parenting regime and that the parents return to having equal shared parental responsibility for all major long-term issues relating to Z. When interviewed by Ms J for the June 2017 report, he said that, if the Court concluded that such a regime was not in Z’s best interests, his proposal was that she live primarily with him.

2. When interviewed by Ms J in September 2018, the father told her that he wanted things to return to week-about:  “that is the end goal”.

3. In his Amended Response, filed 18 June 2020, the father sought orders that he and the mother have equal shared parental responsibility for the major long-term issues relating to Z and that their daughter live with each parent in an equal-time shared parenting arrangement, with changeovers to occur each Monday after school during the school term. He proposed that Z should simply spend half of each school holiday period with each of her parents.

4. The father also sought a number of specific orders to regulate each parent’s actions – namely that:

   a)each parent not enrol Z in any extra-curricular activity without first consulting the other parent; and

   b)each parent ensure that Z attend all school-related and extra-curricular activities and that any necessary uniforms and equipment be made available to her; and

   c)each parent ensure that Z complete her homework; and

   d)each parent be restrained from consuming alcohol in an amount that would see them return a BAC reading of more than 0.05 per cent; and

   e)in the event either parent intended to relocate to live more than 40 kilometres from the K Town CBD, that parent provide the other parent with twenty-eight days’ written notice of such intention; and

   f)neither parent leave Z in the sole care of Mr L (her maternal step-grandfather); and

   g)each parent be restrained from confiscating Z’s phone and accord her the choice about whether she would participate in any after-school extra-curricular activities.

5. The father also sought that the Court make an order that Z attend on a psychologist; and that he be at liberty to attend at all events at Z’s school at which parents are usually at liberty to attend. He proposed that orders be made to facilitate Z travelling overseas to countries which are signatories to the Hague Convention on the Civil Aspects of International Child Abduction – including that, once her parents do all things required to obtain a passport for Z, he retain possession of the same. The father also proposed that an order be made that, from Z’s fourteenth birthday, (… 2021) she be at liberty to decide with whom she will live, the time she will spend with each parent and whether she will attend social functions.

6. The father’s position at trial remained that it is in Z’s best interests for her parents to have equal shared parental responsibility for the major long-term issues relating to her and that she live with each of them in an equal-time shared parenting regime.

7. As noted above, he would not countenance any orders which restrained him from exposing Z to Ms D and, in essence, said that he would “walk away” rather than spend time with Z under supervision at a Contact Centre.

The Independent Children’s Lawyer

1. In the Case Outline filed on 21 August 2020, the Independent Children’s Lawyer proposed that Z live with her mother and that, subject to the requirement to consult with the father, the mother be accorded sole parental responsibility for the major long-term issues relating to Z.

2. At the conclusion of the evidence, Counsel for the Independent Children’s Lawyer submitted that the Court would conclude that it was in Z’s best interests for her mother to have sole parental responsibility for the major long-term issues relating to her, that she live with her mother and spend time with her father, supervised at the K Town Contact Centre – a Centre which the Court was told could facilitate supervised visits at the Centre itself and off-site.

The Family Reports

1. Ms J, a social worker, prepared two Family Reports. The first (dated 22 June 2017) followed interviews and observations which occurred on 19 and 22 June 2017; the second (dated 21 October 2018) followed interviews and observations which occurred on 3 September 2018. Z was nine years and six months of age at the time of the first set of interviews and 10 years and eight months of age at the time of the second set of interviews. 

2. Ms H, a social worker, prepared a report (dated 17 August 2020) following her interviews and observations of the parents, Mr E (the mother’s partner) and Z on 17 July 2020; she also spoke again with each of the parents by telephone on 15 August 2020 and interviewed Ms D by telephone that day also.

3. Unless otherwise indicated, I generally accept the opinions contained in each of the Family Reports.  Of course, such opinions must be assessed given the circumstances that existed at the time each was expressed.

Credit

1. Unless otherwise indicated, where the evidence of the mother and the father diverge, I prefer and accept the evidence given by the mother.  I do so because I considered her to be a truthful witness; in contrast, I found aspects of the father’s evidence to be little more than complete speculation and invention (for example, his assertion that the mother had previously injected heroin, had sold illicit drugs and had prostituted herself to support her alleged habit). 

2. I also found the father to be evasive when cross-examined; he attempted to take control of the questioning during the mother’s cross-examination of him; he was, on occasions, belligerent and sarcastic when cross-examined by Counsel for the Independent Children’s Lawyer; his demeanour at times was such that I have no difficulty in accepting that he can be, on occasions where another person does not agree with his view, both aggressive and intimidating.

3. Where the father’s account and that recorded in the exhibits differs, I prefer the contents of the exhibits. 

4. I considered Mr E to be an honest witness:  unless otherwise indicated, I accept his evidence. 

5. Ms D was at pains during her cross-examination to indicate that she did not remember events and had significant difficulties with her recollection and memory. This persuades me that, where the contemporaneous recounting of events contained in the exhibits differs from her current assertions about them, I prefer the contents of the exhibits. I also consider that, on occasion, Ms D was careful to take refuge in an asserted absence of recollection rather than risking contradicting the account provided by father: she evidenced a willingness to adopt his recounting to her of her behaviours, as opposed to having an independent memory of the same. Whatever the cause, her disclosed difficulties with recollection and memory have persuaded me to be very circumspect in my assessment of her evidence.

APPLICABLE PRINCIPLES  

1. In these proceedings, being proceedings for a parenting order[2] in relation to Z, I may, subject to s 61DA[3] and s 65DAB[4] and Division 6 of Part VII of the Family Law Act 1975 (Cth) (”the Act”), make such parenting order as I think proper.[5] I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects.[6] In deciding whether to make a parenting order, I must regard Z’s best interests as the paramount consideration.[7]

   [2]          Family Law Act 1975 (Cth) s 64B.

   [3]          Presumption of equal shared parental responsibility.

   [4]          Parenting plans.

   [5]          Family Law Act 1975 (Cth) s 65D.

   [6]          Family Law Act 1975 (Cth) s 60B.

   [7]          Family Law Act 1975 (Cth) s 60CA and s 65AA.

2. The matters to which regard must be had in determining those parenting orders which are in Z’s best interests are found in s 60CC of the Act. The requirement to “consider” each of these matters does not necessarily mean that each must be the subject of any particular discussion, particularly where the evidence leads inexorably to a particular conclusion.[8] Any failure to mention a consideration specifically does not mean it has been overlooked in my deliberations about those orders which are in Z’s best interests. Rather, I have considered all of the relevant considerations in arriving at my conclusion about those orders which are in her best interests.

The benefit to Z of a meaningful relationship with both parents[9]

[8]See Banks & Banks (2015) 93-637 (whilst said in the context of a consideration of interim proceedings, there is no reason why the underlying principle does not apply to the final disposition of proceedings).

[9]Family Law Act 1975 (Cth) s 60CC(2)(a).

1. The Act does not define the term “meaningful relationship”, nor does it prescribe criteria on which the Court should rely to assess how a child’s parents have, or should have, a meaningful involvement in that child’s life.

2. In McCall & Clark,[10] the Full Court concluded that the preferred interpretation of “benefit to a child of a meaningful relationship” is the prospective approach. That is, the Court should consider and weigh the evidence at trial and determine how, if it is in a child’s best interests, orders can be framed to ensure that he or she has a meaningful relationship with both parents. Thus, the Court must consider and determine whether there is a benefit to Z in having a meaningful relationship with each of her parents, such finding not being dependent simply on a lack of danger of physical or psychological harm arising from time and/or communication with each parent. If I determine that such benefit exists, then I must consider whether the benefit needs to give way to the requirement to protect Z from physical or psychological harm.[11]

   [10] (2009) FLC 93-405.

   [11]Vigano & Desmond (2012) FLC 93-509, 86,517 [128]-[129] per Bryant CJ, Strickland & Murphy JJ.

3. On the evidence before me, I am persuaded that Z would benefit from having a meaningful relationship with both of her parents; I consider she clearly loves each of them and that both of them love her. I accept that the mother completely appreciates that Z loves her father.

4. That the mother proposed the Orders she did prior to receiving Ms H’s report and learning of the matters contained in documents produced in answer to subpoenas demonstrated that she acknowledges the benefit Z would obtain from maintaining a meaningful relationship with her father; that she continued to propose that Z be afforded the opportunity to spend time with her father – albeit under supervision – is a further demonstration of her acceptance that, provided Z can do so in a manner that does not expose her to an unacceptable risk of suffering harm from being exposed to abuse or family violence, she would benefit from the opportunity to continue to spend time, and have a meaningful relationship, with her father.

The need to protect Z from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence[12]

[12]Family Law Act 1975 (Cth) ss 60CC(2)(a) and (2A).

1. Whilst the father did not seek that Z’s time with her mother be supervised and in fact proposed that she spend equal time with her parents, he continued to allege that she had been the subject of inappropriate conduct by her maternal step-grandfather. The mother continued to assert that this was not the case and that Z is not at risk of suffering harm if she spends time with her maternal step-grandfather.

Allegations about Z’s step-grandfather

1. According to Departmental documents,[13] the father contacted the Department on 9 December 2016 about nearly nine year old Z approaching him, trying to pull his pants down and “sit on his penis”. It is noted that, when he became angry with her and asked her if she did that on purpose, she told him she had; when he asked her who else she did that with, she told him “[CC]”. There was no contest that “[CC]” was the term Z used to refer to her step-grandfather.  It was reported that, whilst the step-grandfather did not live with Z and her mother, he visited the child there. It was also reported that “Z has demonstrated sexualised behaviours since she was two years old, when she would try and pull down people’s pants”; the notes also include a reported concern that the mother would not respond to these concerns when aware of them.

   [13]Exhibit 13.

2. It is clear that the mother does not accept that Z’s step-grandfather has ever acted inappropriately toward Z.  It is also clear, I consider, that the father remains steadfast in his view that Z’s step-grandfather has acted inappropriately toward Z.  The strength of the father’s belief about the allegation does not appear to have diminished over time or despite the fact that Z did not make any disclosure to police when interviewed and did not make any comment to the doctor to whom he took her.

3. According to Queensland Police Service documents,[14] the father told police on 12 December 2016 that he had received information from an obstetrician who had spoken with Z – it was said she had provided details to the practitioner in relation to an alleged indecent assault perpetrated against her by her step-grandfather.  However, correspondence from the obstetrician (Dr M) dated 12 December 2016 does not seem to me to corroborate the account the father provided to police.  Rather, Dr M’s correspondence outlines that Z told him that she plays a game with her step-grandfather where he pulls her pants down and she pulls his and this game became smaller and smaller over time; that no-one had taught or told her to put her legs on people’s private parts and, when she did this to her step-grandfather, it was not because he told her to do so.[15]      

   [14]Exhibit 2.

   [15]Affidavit of the mother filed 24 July 2020, Annexure LB-14.

4. When interviewed by police, the father said Z had put her legs on his lap and started to move them toward his penis; when he asked her what she was doing, she told him that she had played the same game with her step-grandfather – he said then organised for her to be examined by a general practitioner (at the N Medical Centre) who referred her to an obstetrician. He said that, after he contacted the mother to tell her about this, she arrived at the doctor’s rooms on the morning of the planned examination with an intervention order to stop the same.  The father told police that, despite this, the doctor spoke with Z, who detailed “various suspected sexualised activities” which the doctor wrote down and provided to the father and these raised his concerns.

5. As already noted, Dr M’s correspondence does not seem to me to recount that the doctor formed the view that Z had disclosed “suspected sexualised activities”; further, correspondence from Dr O (the general practitioner to whom the father first took Z) dated 9 December 2016, outlines that Z did not recount any complaint of inappropriate behaviour to her.[16]

   [16]Affidavit of the mother filed 24 July 2020, Annexure A-11.

6. According to Departmental documents,[17] a notifier informed the Department on 12 December 2016 that Z had started making disclosures in regards to her step-grandfather: the notifier said that they were aware that Z had said that her step-grandfather openly spooned her and allowed her to put her legs across his penis – it was reported that it was believed he was clothed at the time. The notifier reported being aware that, when asked, Z had said that she had not seen her step-grandfather’s penis. The information provided also included that the mother had said that Z’s father had previously made false/untrue allegations about family. According to the information provided to the Department that day, “a neighbour of the father, who has significant issues with drugs and has had her children removed from her care, has also claimed that Z spoke about laying on bed with CC and inferred that he touched her, however was not clear on what it is that Z actually said.” The Department was also told that Z had reported pulling down “[CC]’ shorts”; this was said to have been an issue with her behaviour years ago (and not a current issue) – it was also reported that this behaviour was not directed only to her grandfather, but also directed to her sibling.

   [17]Exhibit 13.

7. Police records[18] establish that police contacted the father on 13 December 2016 to arrange for Z to attend an interview at 8.00 am on 14 December 2016. However, the father failed to attend with Z for the interview. When he was contacted about this non-attendance, he said that he had been unable to attend with Z because his partner (clearly, Ms D) had had epileptic seizures and required his help. Whilst the interview was re-scheduled for 11.00 am, the father subsequently contacted police to advise that he could not attend with Z because his partner had had an epileptic seizure. Police then arranged for Z to be interviewed on 19 December 2016.

   [18]Exhibit 2.

8. According to Departmental documents when Dr O (from the N Medical Centre) saw Z on 15 December 2016 and asked her about her step-grandfather’s actions, she only said when “he carrying me”.  The Department was told that the father did not want to be present for the examination and no trauma was noted during it: he was told that the doctor would refer Z to a gynaecologist for an examination under anaesthetic as that would be less traumatic for Z. It was reported that, whilst the doctor had no immediate concerns, Z was quickly referred to a gynaecologist because of her father’s distress.[19]

   [19]Exhibit 51.

   Z’s interview

1. When nearly nine year old Z attended on police on 19 December 2016, she was accompanied by her father and Ms D.[20]

   [20]Described in the police records as being the father’s neighbour who suffers from epilepsy and is under his care.

2. According to the police documents,[21] Z said that she had been putting her legs on other people’s private parts and it started off as a game and got smaller and smaller; she said that, when she was about five years old, she made up a game where she was a dog and her “[CC]” was her owner; during this game he pulled her shorts down to her knees and she later pulled his shorts down – she said that both of them were wearing underpants at the time; she described that, during the ‘dog game’, she would lie on her back with her legs up and “[CC]” would be on all fours watching TV and she used her feet to push him on the privates (which had another name of “penis”).  Z also said that, sometimes when she was laying on the ground watching TV, her “[CC]” would also lay on the ground behind her and sometimes put his hand down the back of her pants to pull her back to him – she said it was sometimes outside her undies and sometimes not.  On direct questioning, she said that his hand touched the bottom cheek part and he did it quickly to pull her back: she said he had never touched her bottom or private part. Z also told police that she felt safe being with her mother, father, “[CC]” and “[DD]”.

   [21]Exhibit 2.

3. The investigating police officer concluded that Z’s interview did not contain disclosures of criminal behaviours by her step-grandfather.

4. Given Z’s recounting to police in December 2016 of events she said occurred a number of years earlier, I am not persuaded that Z would now be at an unacceptable risk of harm if she was to spend time with her maternal step-grandfather.

What happened after Z’s police interview?

1. I accept that, when the father and Ms D were told by police on 19 December 2016 that Z had not made any disclosures of any criminal offences, the father became very irritated that she had not told the same ‘story’; I accept he said he would ‘have a go’ at Z for lying to the police.  I accept police told the father not to discipline Z for what she may or may not have told them.  I accept the father told police the mother would threaten Z once she found out and that he was supposed to return Z to her mother the next day. I accept he insisted that police ask Z how “[CC]” carries her: he said he carried her with both hands between her legs.  I accept that, on direct questioning by police, Z said that “[CC]” used both hands to pick her up and, once she was on his hip, put his hand around the side of her bottom – she said this was on the outside of her clothing.[22]

   [22]Exhibit 2.

2. I also accept that, after Z’s interview, Ms D told police that she thought the father may have bipolar – when he was told this, the father stormed out of the police station with Ms D and Z. [23]

   [23]Exhibit 2.

3. I accept that, when the mother returned a call to police at about 11.00 am on 19 December 2016, she advised them that, when she and her sister went to P Park to collect Z, Z was physically distressed and crying; I accept she said the father had told her, in front of Z, that Z was a liar and that she had lied to police. I accept the mother was truthful in this recounting. I accept the mother also told police that, after Z got into the car and they left, she pulled over to comfort her and Z told her that the father had said that he did not want her anymore and that she was a liar like his other children. The mother said Z also told her that she had not lied to police. I again accept that the mother was truthful in this recounting.

4. I accept that, as at 16 January 2017, the Department concluded that, as the information provided to it did not meet the threshold for a Notification, it would be recorded as a Child Concern Report. According to Departmental documents, the concerns that had been raised were:  about a game played between Z and her step-grandfather where they pulled their pants down; around the way Z was held by her step-grandfather; that he lay behind her in an inappropriate manner and that she had “a habit” of putting her legs on men’s genital area. I accept that the Department concluded the information provided appeared to have limited context and was open to interpretation.  I also accept that the Department accurately noted that Z had made no disclosures of a criminal nature about her maternal step-grandfather when interviewed by the K Town Child Protection Investigation Unit.

5. I accept that the Department also concluded that, whilst the father’s behaviours toward Z after her police interview were highly concerning and inappropriate, there was insufficient information to suggest they had led to Z suffering significant emotional harm: further, whilst Z had been distressed by her father’s actions, there was insufficient information to suggest she was regularly subjected to this type of behaviour by him. I accept the Department noted that the information about the father’s interaction with Z after her police interview should be considered if there were further concerns raised about the level of care he provided to Z, particularly given the reference to him potentially suffering from bipolar disorder.[24] 

   [24]Exhibit 14.

6. I accept that a notification was made to the Department on 17 January 2017. I accept that, as a consequence, the Department reviewed Z’s child protection history. This amounted to the two Child Concern Reports recorded in December 2016: one related to Z allegedly making disclosures about her step-grandfather, whilst the other related to the father advising of an incident where Z had approached him and tried to pull his pants down and “sit on his penis.”[25]

   [25]Exhibit 53.

7. I accept that, according to Departmental documents, the Department was told on 23 January 2017 that the father had alleged Z had been sexually abused by a family member and that he had alleged that the “game” had been going on since she was two and half years old but had stopped now. I accept that the Department was told that Z had disclosed the information to Dr O at N Medical Centre in December in her father’s absence; that the doctor wanted to refer Z to an obstetrician but the mother refused and denied that Z had been subjected to any sexual interference by any of her family members. I accept that the Department was told that, when Z was interviewed by police, she “retracted” her story and that the father believed she had done so because she did not want to get the perpetrator into trouble. It was also reported that the father said that, whilst Z had been given seven days after she initially met with police to provide further details to them, she had not done so because she had gone into her mother’s care and would not return to his care until mid-January.[26]

   [26]Exhibit 54.

8. I accept that, as recounted in police records, when the father called police again on 7 February 2017, he was told that, as there were no new disclosures, Z did not need to be re-interviewed. I also accept he ended the call after the police officer told him that she would not be threatened and that all future communication needed to be in writing.[27] As already remarked upon, I am easily persuaded that the father is perfectly capable of behaving in a threatening and intimidating manner on occasions.

   [27]Exhibit 2.

9. I accept that, according to the contents of a medical note made on 24 February 2017, the practice advised that: Dr O had followed normal protocol to have the allegation about Z’s maternal step-grandfather thoroughly investigated; Dr M had more experience to address any sexual wrongdoing; Dr O had indicated to Dr Q that the father had not demanded an internal examination for Z but had asked that the necessary investigations to rule sexual molestation ‘in or out’ occur.[28]

   [28]Exhibit 35.

10. I accept that, when the investigating officer spoke with Dr M about Z on 7 March 2017, she confirmed she had received a referral from Dr O after the father and Z attended on her and he had voiced his concerns that Z was being sexually abused.  I accept the police officer was told that Dr O did not conduct an examination but made an urgent referral to Dr M. I accept Dr M told the police that, when the father and Z presented, he expressed his concern about Z being sexually abused. I also accept that Dr M told police that, when the mother presented and did not consent to the doctor conducting an internal examination as requested by the father, she refused to perform that examination. I accept Dr M told police that the father then insisted that she question Z. According to police records, the doctor expressed that she thought Z was being manipulated into telling ‘the version’ and she did not expand on any of the points listed in the letter from Dr O.

11. On the evidence before me, I am not persuaded that it is more likely than not that Z has been subjected to abusive behaviours by her maternal step-grandfather; further, I am not persuaded that she would be at an unacceptable risk of harm if she now spent time with him. I am not persuaded that it is more likely than not that Z’s mother would deliberately ignore any complaint made to her by Z. I am not persuaded that Z’s mother would, in any way, fail to act protectively of Z.

A naked person walking into Z’s room

1. I accept that, on 15 August 2018, the Department was told that Z had said, amongst other things, that her step-father sometimes walked naked into her room at night to use a phone charger.  I accept the Department was also told that Z did not provide any further information around this. I accept that the Department noted that, given Z’s age, there were questions around what she would describe as “naked” and it was possible that her step-father had been partially clothed. I accept the Department recorded that there was no information to suggest that the behaviours described were sexually motivated and that it had been reported that Z was not distressed or worried when talking about this issue, but was quite conversational. I accept, as the Department concluded, that there was no evidence to suggest that any behaviours in her mother’s home were causing Z any harm.[29]

Z:  her views and the nature of her relationship with each of her parents[30]

[29]Exhibit 3.

[30]         Family Law Act 1975 (Cth) ss 60CC(3)(a), (b) and (g).

As recounted in Ms J’s June 2017 report

1. I accept that, in June 2017, the mother told Ms J she knew Z wanted to return to an equal-time shared care arrangement; I also accept she was confident that Z would tell Ms J she wanted to go back to how it was previously.

2. I accept that, as her mother predicted, Z (who was then in Grade 4) told Ms J in June 2017 that she kind of missed going to her father’s house and wanted it to go back to “normal.” I accept that Z, who Ms J described as an outgoing, confident, funny and articulate girl – who appeared well adjusted, but was clearly missing her father – made these comments spontaneously.

3. I accept, as Ms J reported, that Z told her she did not know why she was not then spending as much time with her father as she had before; I also accept she was very aware of the parental conflict and thought that her parents did not like each other at all. I accept that, in June 2017, Z told Ms J she wanted her parents to be friends and to stop fighting.

4. I accept, as Ms J recounted, that Z also recognised a Court document from the stamp on it; I accept she said she had seen such papers at her father’s home a long time ago and that he had told her that they were Court documents and that she could not see them or know anything about them.

5. I accept Ms J’s recounting, in the July 2017 report, that Z’s observed interactions with Ms Y, her mother and her mother’s then partner were all unremarkable in that it was evident she had a close relationship with her sister, a good attachment with her mother and a playful and enjoyable relationship with her mother’s then partner. I also accept Ms J’s recounting that, at that time, Z also appeared to have a good attachment with her father and enjoyed her time with him. I accept that, under observations, the father appeared to Ms J to be child-focused.

6. I note that, in July 2017, Ms J considered that Z’s age (9½ years) her maturity and her ability to articulate her thoughts meant that her views about her life and her activities needed to be considered. I accept Ms J’s assessment that, despite these matters, Z was not then sufficiently mature  to express her views entirely independently of the views of either of her parents or to take ‘risk of harm’ issues into account.

   Z’s threats of self-harm

7. I accept that, as recounted in Departmental documents, the Department was notified on 19 June 2018 that, on 18 June 2018, it had been reported that Z had said that she was going to kill herself. The Department was told that, when Z was asked about this, she said she had been upset when she made that comment: I accept she said she had felt that way before and that she had had this feeling at least three times a week when frustrated and angry. I accept that Z told the reporter that “life is too hard and it’s not fair what I have to deal with” but would not go into any further detail. I also accept that the notifier told the Department that Z’s mother had spoken of an upcoming Court date, which might have been a contributing factor and that her father had reported ongoing concerns for Z’s wellbeing.[31]

   [31]Exhibit 28.

8. I accept, as recounted in Departmental documents, that, when contacted by the Department in late June 2018, the notifier stated that it was a complex situation and it was very ugly and adversarial between Z’s parents. I accept the Department was told that it was likely each parent would use Z’s threat as a weapon and that both would blame the other. I accept that the notifier also told the Department that Z was very manipulative and had likely said things she had heard from her parents (for example, that life is too hard).  I accept that the Department was advised that Z’s parents had previously sought support for her. I also accept that the notifier advised that Z was a very bright child and that, as an only child, there was an incredible focus on her. I accept the Department was told that, whilst the parental relationship would be impacting adversely on Z, she was also pretty resilient. I accept the notifier advised that Z’s reported anger and frustration was consequent on friendship breakdowns: that is, other friends had become closer and she felt excluded. I accept that the notifier advised that Z had close-knit supports with her extended maternal family, but her father had been “erratic for years”. Despite this, the Department was also told that there was no sense that Z felt anxious about going to spend time with either parent.[32]

   [32]Exhibit 28.

9. I accept the conclusions reached by the Department: that is, I accept that it is much more likely than not that Z’s threat to kill herself appeared to be directly linked to changing peer friendships and that it appeared to have been generated more from anger and frustration rather than being a manifestation of an actual intention to follow through. I also accept as quite likely that Z did not necessarily fully comprehend the possible repercussions of making the statement she made.

10. I note the Departmental assessment that, despite the ongoing conflictual parental relationship, her parents’ dysfunction did not then appear to be adversely impacting on Z’s emotional wellbeing to the extent that she was at an unacceptable risk of suffering harm in the care of either of her parents.[33]

    [33]Exhibit 28.

11. I accept that, according to the notes of a medical appointment to which the mother took Z on 2 July 2018, Z’s teacher and the school principal were aware of her threat; Z was then seeing the school guidance officer and her teachers had indicated that she was focused at school. I accept that the notes record that there had been no other concerning events after the threat; that Z had not engaged in cutting, had not demonstrated any depressive symptoms and was back to being friends with her best friend.  I accept that, when the doctor asked Z if she wanted to see a psychologist, she said that she did not want to at that stage.[34]

    [34]Exhibit 35.

12. I accept that, when she spoke to Ms J in September 2018, Z told her that her comments to her friend that she thought life was too hard and she wanted to kill herself were made when she was fighting with her friends, who were being annoying. I also accept Z told Ms J that she did not feel like that when interviewed.

As recounted in Ms J’s October 2018 report

1. I accept that, when interviewed by Ms J in September 2018, Z spoke very fondly about her school and certain extra-curricular activities. I accept she said she enjoyed spending time with her father and said she was never bored, as they were out and about doing things.

2. I accept that, when Ms J asked her about her time with her father, Z said that she wanted her time with her parents to be even; I accept she said she wanted it to be fair for both of them and, so, for her to see them equally. I accept Ms J’s assessment that, in speaking as she did, Z was likely more concerned about things being “fair” for her parents, than really saying what she wanted to happen.

3. I accept Z told Ms J that she did not want to choose between her parents, as they are “both amazing”. I accept Ms J’s assessment that it was clear that Z did not want to choose between her parents. Whilst I accept Ms J’s assessment that Z appeared comfortable with both of her parents and loved both of them very much, I also accept her assessment that the observed interactions between Z and her father were not as free-flowing as those between Z and her mother.

As recounted in Ms H’s August 2020 report

1. I accept Ms H’s description of Z, to whom she spoke in July 2020, as an articulate and bubbly young person.  I accept Z told Ms H that she liked her school a lot, enjoyed playing with X (Mr E’s daughter), like Mr E a lot and also liked their new home.  I also accept that there was nothing about her mother’s home that Z could identify to Ms H as being something that she did not like.

2. I accept that, when Ms H asked her about her time at her father’s home, Z told her that this was also good. I accept that Z then told Ms H  about having “anxiety” and said that she would like to be on medication for this because her father had given her some medication which had made her feel better. The issue of Z’s asserted “anxiety” and the method by which this should be addressed are further issues about which Z’s parents disagree.

3. I accept Z also told Ms H that things were good as they were then, but she would also like week-about time as well. I accept she commented: “it’s hard to decide these things I guess”.  Given Z’s comments, I am not persuaded that she was positively expressing a particular preference for living in a week-about parenting regime. Rather, I consider it much more likely than not that, in telling Ms H what she did about it being hard to decide her parenting arrangements, Z was implicitly expressing that she did not want to be the person to make that decision.

The likely effect on Z if the orders sought by each of her parents are made[35]

[35]         Family Law Act 1975 (Cth) ss 60CC(3)(d).

1. Given the assessment of Ms J and Ms H about the nature of Z’s relationship with her father, I accept that she is likely to be very upset – at least initially – by any diminution in her time with him. I accept that spending time with her father under supervision would obviously impose very significant constraints on their ability to engage in activities in which they have previously engaged. It would also obviously impose an artificiality over their interactions and would be more likely than not to place significant constraints on Z’s ability to maintain a meaningful relationship with her father.

1. I accept that a change to a week-about parenting regime would allow Z more time with her father. I accept it would implement a return to a parenting regime previously implemented – albeit for only about seven months in 2016. Given the father’s clear position that he will not take any action to ensure that Z is not exposed to Ms D, the implementation of a week-about parenting regime (or even a continuation of the existing parent regime) would result in Z being exposed to Ms D and the interactions between her father and Ms D, about which more is said elsewhere in these Reasons.

2. Whilst I accept that spending more time with her father would, in theory at least, enable Z to send more time with her father’s other children, I note that, when interviewed in September 2018, the father told Ms J that he did not then have contact with either Mr F or Ms G: he said he chose not to speak to them.  Ms J recounted that he had told her that Mr F was into drugs and that was 90 per cent of the reason he did not associate with him and that Ms G thought Z was a spoilt little brat and he did not want Z having to deal with that negativity from her much older sister. He also told Ms J that Ms G thought that “the world owes her”. He said he had called Ms G, but she told him that she was not ready to talk to him yet. Given aspects of the father’s evidence during the trial, I accept that it appeared that, at that time at least, he and Ms G had reconciled their relationship to some extent.

The father: Z’s relationship with him; his involvement in Z’s life; his capacity to meet Z’s emotional, intellectual and other needs; his attitude to Z and to the responsibilities of parenthood[36]

[36]         Family Law Act 1975 (Cth) ss 60CC(3)(b), (c), (ca), (f), (i) and (m).

Matters relating to drugs

1. I accept that, on 12 December 2016, police executed a search warrant at the father’s premises. I accept that Ms D was located in an attached granny flat and, as a consequence of her information to police, she and her then partner were charged with a number of drug-related offences.  I accept that, when police searched the primary dwelling, the detached sheds and the caravan located on the property, they located four small cannabis plants growing in pots on the front veranda, a clip seal bag containing 20.6 grams of cannabis bud and a large heat light in the main bedroom.  I also accept that the caravan was heavily secured, had underground pipes and cables leading into it from underneath and had been constructed solely for the purpose of producing and cultivating cannabis.  I accept that police located seven mature cannabis plants (ranging from one metre to one and half metres in height) growing in a large zip-up grow house in the caravan, together with a further six small cannabis plants growing in pots.  I accept that the interior of the caravan was fitted with an air-conditioner, heat lights, exhaust fans and that they also located growing instructions, products, fertilizers, plastic pots, water timers and a glass water pipe, previously used to smoke cannabis. I accept that a security camera system inside the caravan was connected to two covert cameras fitted to the exterior of the caravan.

2. I accept that the father attended the police station on 13 December 2016 and, when interviewed, admitted that all seized and destroyed items were his.  I accept he told police that he had grown the cannabis so that he could have a constant supply for Ms D, as she suffered epilepsy and he found medicating her with it helped her symptoms. I accept he also admitted knowing that Ms Sommers and her then partner were growing and smoking cannabis at the premises.[37]

   [37]Exhibit 48.

3. I accept that the father was subsequently charged with a number of drug-related offences, including production and possession of marijuana.[38] I accept that, on 16 January 2017, the father entered a plea of guilty in the Magistrates Court in relation to the following offences: producing dangerous drugs; possessing dangerous drugs; supplying dangerous drugs; possession of utensils or pipes that had been used and permitting use of a place for the production of dangerous drugs (which offence was alleged to have occurred between 1 May 2015 and 12 December 2016) – that is, during a period when Z was spending significant time with her father at the property. I accept that he was placed on probation for nine months and that no conviction was recorded. [39] 

   [38]Exhibit 13.

   [39]Exhibit 36.

4. I accept that, when she spoke to Ms J in June 2017, the mother outlined that she remained concerned about the father’s drug use. She said that, whilst she thought things would be okay whilst the father was being tested for the presence of illicit substances, she was concerned he would return to using marijuana once the testing stopped.

5. I accept that the mother told Ms J in September 2018 that the fact that the father’s recent drug test had been clear, that he had put on weight and that he looked healthier all indicated to her that he was not then using illicit substances.

6. I accept that urine drug screen tests of samples provided by the father on 1 June 2017, 1 August 2017, 13 October 2017, 12 December 2017, 19 March 2018, 19 June 2018, 21 August 2018, 30 October 2018, 20 February 2019, 25 June 2019, 14 October 2019, 15 April 2020 did not reveal the presence of any illicit drug.[40] I accept that hair drug test results for a sample provided by the father on 31 October 2017 and 17 October 2018[41] did not reveal the presence of illicit drugs.

   [40]Exhibit 4.

   [41]Exhibit 5.

Alcohol use

1. I accept that, on 25 February 2011, the father drove a motor vehicle with a breath alcohol concentration of 0.086 per cent.[42]

   [42]Exhibit 46.

2. I accept that, in June 2017, the mother told Ms J that she was concerned about the father’s alcohol consumption. I accept that the CDT results of samples provided by the father on 26 March 2019, 27 May 2019, 14 October 2019 and 12 June 2020 did not support a conclusion of excessive alcohol intake.

The father’s mental health

1. I accept that the father has a long term history of depression. I accept that he has a history of complaining of experiencing low mood, anxiety, insomnia, general fatigue, poor memory and concentration. I also accept that he has intermittently sought support for these complaints.

2. According to medical notes dated 17 August 2016, the father had reported that there was not a time when he could not remember being depressed; he also reported suicidal thoughts – he said that  he would do it eventually, but did not then plan to harm himself, did not want to die and could not do that to his daughter.  According to the notes, the father said he had never harmed himself in the past and had never tried to kill himself: he reported a generalised anxiety that was said to have been present for many years. The father reported that he had seen a psychologist (Dr EE) inconsistently for about five years.

3. The notes of the 17 August 2016 consultation also include that the father was focused on how he had been betrayed by his family and his first wife and on a legal battle with his second ex-wife. He was assessed as suffering depression, anxiety, non-active suicidal thoughts and as having a sense of betrayal over many issues. Whilst it was noted that the oxycodone the father took for back pain relief could cause depression, it was assessed that a psychologically-based treatment approach would be more useful than changing his medication. 

4. Information from Dr EE (a clinical psychologist) as at 26 August 2016 included that he had started to treat the father, who was said to suffer from major depression, on 7 January 2016 and that he did not abuse alcohol anymore, but needed longer term psychotherapeutic assistance.[43]

   [43]Exhibit 35.

5. I accept that, in November 2016, the father reported to his treating medical practitioner that he was experiencing very significant mood fluctuations – with good periods for up to a week, but very, very low episodes and that he was worried about bipolar. 

6. I accept that, when police attended at the father’s residence on 21 December 2016, they located him sitting on his bed, drinking whisky from the bottle: he had a large amount of open medication in front of him. I accept that, after he closed the blinds in front of them, police smashed a door to obtain entry to the premises, where the father was seen to continue to consume alcohol: he was not forthcoming about whether he had consumed any medication. I accept that, after police wrestled with the father to remove the alcohol from him, he was taken to the K Town Hospital for an emergency examination order on the basis that he had maintained suicidal intention and had threatened suicide.[44] I accept that, on admission, the father was described as alert, co-operative and engaging; his manner was described as mildly agitated, angry and “woe is me”; he was said to be pre-occupied with several past perceived wrongs, which included a lack of access to Z, thoughts that she had been molested by her step-grandfather, a lack of support and financial difficulties.[45]

   [44]Exhibit 47.

   [45]Exhibit 35.

7. According to notes produced by the N Medical Centre, when the father attended an appointment there on 5 March 2017, he indicated he had been off his medication for three days before his admission to the K Town Hospital Mental Health Unit. He explained that this happened because he had been unable to leave his tenant (clearly, Ms D) at home alone given she suffered from epileptic seizures and that the pharmacy was closed when he had time to get his medication.[46]  The notes of a consultation in mid-March 2017 included that the father was experiencing depressed mood and anxiety. 

   [46]Exhibit 35.

8. I accept the mother told Ms J in June 2017 that her biggest concern at that time was the father’s mental health: she mentioned he had attended on a psychologist and two different psychiatrists, had made a “suicide attempt” and had been hospitalised in the previous nine months. I accept the mother told Ms J that, as a consequence of his mental health issues, the father occasionally interacted with Z as though she was an adult – for example, by telling her that he was not coping. I accept that the mother also told Ms J that, whilst she accepted that the father appeared to have sought assistance, this did not appear to have helped him and she was concerned that he would “lose it” one day and “take himself out”.

9. I accept the father denied to Ms J in June 2017 that he had been suicidal on the evening in question: he told her that he had consumed alcohol, felt overwhelmed, was in a low place and could not bear to think about having to return to Court. I accept he also told Ms J that he had not taken his depression medication for four days and, in essence, was dealing with the fact that criminal charges had been brought against him.

10. I accept that the father acknowledged to Ms J that he had a lengthy history of depression. I also accept, though, that it appeared that, save for the occasion referred to above, the father had previously sought assistance when the same was needed. I accept that, as at July 2017, Ms J outlined that there was no information of which she was then aware that indicated that the father’s mental health then posed a risk to Z.

11. I accept that the father was distressed during a surgery consultation on 10 April 2018: he described events after he helped Z with headaches and that a Dr R started propranolol for tension headaches, but the mother would prefer no medication due to potential side effects.[47]

    [47]Exhibit 35.

12. I accept that Departmental records[48] include that there were concerns about the father having mental health issues, being suicidal and lacking insight into his behaviours toward Z.[49]

    [48]Which refer to there being 10 Child Concern Reports about Z between December 2016 and August 2018.

    [49]Exhibit 29.

Maintenance of belief that Z had been sexually abused by her maternal step-grandfather

1. I accept that, when she spoke to Ms J in June 2017, the mother expressed concern that, despite the fact that Z had not made any disclosures to police when interviewed, the father persisted with his allegation that she had been sexually abused by her step-grandfather. I accept she also outlined to Ms J that she considered that the father’s approach to Z’s reported disclosures had been exaggerated, that he had not dealt well with the situation and that the risks to Z’s emotional wellbeing associated with her being interviewed and taken for medical examinations far outweighed the harm from any alleged abuse. Such comments need to be seen in the context that the mother has never accepted that Z’s step-grandfather would ever have acted inappropriately toward Z.

2. I accept that the mother also told Ms J that Z had told her that her father had asked her about her step-grandfather and had told her that she was going to have to talk about him at some stage – a comment which suggested to her that the father had continued to question Z about this issue and her reported disclosures.

3. Whilst I accept that the father denied doing so to Ms J, I also accept that (as Ms J recounts), he was adamant when he spoke to her in 2017 that Z had been sexually abused. I accept her description of him as being “dogged” in his belief and persistence about this issue. Given this, it is certainly easy to imagine the father continuing to press Z for information about her step-grandfather’s behaviours.

4. The father’s comments at various times during the proceedings certainly suggested to me that time has not eased the vigour with which he holds the persistent view that Z’s step-grandfather has previously acted abusively toward her.

Asserted failure to support Z financially

1. I accept that the mother has met the vast majority of Z’s financial needs. I accept that she has overwhelmingly met the costs of her attendance at her current school. I think it much more likely than not that the father’s attitude to contributing to Z’s financial support has likely caused the mother resentment toward him.

2. I accept that, when asked by Ms J in 2018 whether he contributed financially to Z’s care, the father told her that the mother did not pay (him anything by way of child support) and he did not pursue it. I accept that he maintained this position when pressed, saying that “but she [the mother] doesn’t pay anything either”.  I accept that, when Ms J asked him whether, given he had received a financial lump sum payout, he intended to make any financial contribution to Z’s ongoing school fees, he said that he had no intention of contributing to the same as he could not afford it, lived on a limited budget and put money on his home loan.

3. I also accept that, when Ms J asked him whether, if he could afford it, he thought it important to contribute to Z’s school fees, the father said he did not think it was important to contribute to the fees as he saw traits in Z that he thought were related to her school: he particularised these as her being “very forward, bordering on rude”.

Attitude toward supporting Z in extra-curricular activities/engaging with friends

1. I accept that, on occasion, the father has not taken Z to certain extra-curricular activities whilst she has been in his care. Whilst I accept that, on occasions, this happened despite there being an order that both parents ensure she attend the same, I also accept the father’s evidence to the effect that sometimes he simply could not afford to take Z to the activity. In doing so, though, I do not reject the mother’s account to Ms J in September 2018 to the effect that, whilst the father failed to provide any meaningful financial support for Z whilst their daughter was in her care, he had bought himself a new boat, car and caravan. Given the father’s overarching attitude about Z’s mother (as discussed elsewhere in these Reasons), I am easily satisfied that he has prioritised ensuring that he can provide Z with financial support when she is in his care over ensuring that she is provided with financial support in an overall sense.

Matters relevant to Ms D/ domestic violence in the father’s relationship with Ms D/Z’s interactions with Ms D

1. I accept – as is outlined in notes provided by the Queensland Ambulance Service – that officers attended on Ms D on 30 January 2015. According to the notes, she was well known to the service for identical presentations, for drug seeking behaviour and as an irregular historian. It was reported that she had suffered from an unwitnessed seizure, which had lasted for an unknown amount of time. When her request for “the green whistle” (methoxyflurane/pethrane) was refused due to recent repeated doses of the same and previous drug-seeking behaviour, she was noted to have become aggressive and threatening: she refused other drugs or analgesia, told officers to go away and said she would make formal complaints. As she was adamant she would not accept ambulance assistance without administration of the drugs she wanted, drugs were administered.[50] 

   [50]Exhibit 56, page 4.

2. I accept that, when the ambulance service attended on Ms D on 19 February 2015, she complained of a dislocated shoulder. The notes record that she had an extensive history of this complaint and was well known to the service. Methoxyflurane was administered and she was conveyed to the C Town Hospital.[51] Ambulance officers attended on Ms D again on 27 February 2015 in response to a report that she had suffered a seizure prior to injuring her shoulder: whilst she was ultimately taken to hospital for further review, it seems that a particular officer-in-charge had been called to the scene due to Ms D becoming abusive and threatening complaints to the crew.[52]

   [51]Exhibit 56, pages 7 – 9.

   [52]Exhibit 56, pages 10 – 12.

3. Ambulance officers attended on Ms D again on 1[53] and 5 March 2015[54] to respond to complaints of a dislocated shoulder; she was taken to hospital on each occasion but only accepted pain relief on the first.

   [53]Exhibit 56, pages 13 – 15.

   [54]Exhibit 56, pages 16 – 19.

4. According to documents provided by the Queensland Police Service,[55] Ms D had a physical altercation with her mother in front of her children on 8 March 2015. The account contained in the police documents – which I accept in preference to any explanation provided by either Ms D or the father (who was not present at the time) – included the following: when Ms D grabbed one of her children to leave, the child grabbed onto the kitchen bench and screamed that she did not want to leave and said “mummy you’re scaring me”; Ms D then yanked the child off the bench and dragged/pulled her out of the back door; when the grandmother pushed Ms D away from the child and moved to check on her, Ms D then grabbed her mother from behind and started to choke, bite and strike her in the presence of all three children; when a child grabbed Ms D to try and stop her, Ms D spun around and bit her child; the grandfather entered the room to remove Ms D from her mother; the grandmother then took all three children to the car to take them to the police station; the children locked themselves in the car and, when she approached the car, screamed at their mother to get away from them.

   [55]Exhibit 10.

5. The police records also include the following about Ms D: “As per mo, Police were called by the offender [Ms D] crying wolf.” The records document that, when police attended and spoke to the children, all of them told police separately that their mother was scary and hurt them and that they wanted to stay with their grandparents. Police recorded that Ms D was crying and saying that she should kill herself, had epilepsy and did not want to live anymore;  it was reported that, prior to police arriving, Ms D had assaulted her mother in a rage in front of her children and that she had previously been admitted to hospital for mental health issues.

1. I note that, in an email sent on 16 July 2020, the mother strongly suggested to the father that he subpoena her medical records and any police records from South Australia and, in furtherance of this, provided him with the dates between which she lived in that State, the addresses at which she lived, the name of her medical practitioner for a specified time and the name of the local hospital.[103] Despite this information – which would have enabled the father to issue subpoenas directed to obtaining information about the mother when she lived in South Australia – there was no evidence before me to substantiate the content of the father’s assertions about the mother’s involvement with drugs when in her twenties.

   [103]Exhibit 9.

2. I accept Ms H’s report that, when she interviewed the father on 17 July 2020, he was quite focused on convincing her that his new evidence would persuade her that Z was at risk with her mother.  I accept he told Ms H that Z had been concerned her mother was smoking marijuana; and the mother had been hanging around a person with whom she used to use heroin in Adelaide when she was about 17 or 18 years of age. I accept the father did not present any actual evidence to support these assertions. I do not accept that the mother has ever told the father that she used heroin. Similarly, despite telling Ms H that the mother had previously prostituted herself to support her previous alleged heroin use (a suggestion that is not recorded in either of Ms J’s previous reports), the father did not adduce any evidence to support this allegation and I reject it. 

3. I accept Ms H’s report that the father presented with a high level of animosity toward the mother and Mr E during interviews on 17 July 2020 and 15 August 2020. I also accept her assessment that this animosity did not appear to have shifted over a significant period of time. In so far as it was directed toward the mother, it did not seem to me to have diminished at all during the trial.  In fact, during his cross-examination, the father said he had nothing positive to say about the mother – he considered her to be manipulative, not a responsible parent and that she was out to destroy his life.

4. Despite the concerns he recounted to her, the father told Ms H that the appropriate orders for Z were that she live with her parents in a week-about parenting regime – because he said Z had repeatedly told him that was what she wanted.  During his cross-examination, he also said he believed Z loved her mother and enjoyed her time with her and that the mother had not treated Z as she had treated him.

5. I accept Ms H’s assessment of the father’s primary motivation in advocating for an equal-time parenting regime for Z: that is, I accept that, whilst he advanced that he was proposing this because it was what Z wanted, he was, in reality, focused on the mother and on his new allegations of substance misuse by the mother and Mr E. I accept Ms H’s assessment that, despite a lack of evidence about these matters, the father remains fixated on them.  Nothing in his presentation at trial suggested that it was likely there would be any change to his views in this respect.

Administering prescribed medication to Z

1. I accept that, on 4 April 2018, the Department was told about Z’s use of propranolol for anxiety. I accept that the information provided included that, despite Z never before having suffered from anxiety, the father took her to a paediatrician (Dr R) who, having seen her once, prescribed that medication – which she had never used before. I accept that the Department was also told that the father had said Z needed to be on the medication because of the stress she was under and her anxiety. 

2. Whilst the Department received concerns that the father’s mental health was the reason Z was on the medication, it was noted that the medication had been prescribed by a doctor and that there was currently no information to suggest that Z had been wrongly prescribed the medication.  I accept the Department concluded that there was insufficient evidence to indicate that, because of this issue, Z was not safe in her father’s care.[104]

The mother: Z’s relationship with her; her involvement in the Z’s life; her capacity to meet Z’s emotional, intellectual and other needs; her attitude to Z and to the responsibilities of parenthood[105]

[104]Exhibit 27.

[105]        Family Law Act 1975 (Cth) ss 60CC(3)(b), (c), (ca), (f), (i) and (m).

1. I accept that the mother attended the “Keeping Kids in Mind” post separation program in January 2016.[106] I also accept that, in mid-August 2020, the mother enrolled to do a number of courses and counselling via the BB Service.[107]

   [106]Exhibit 31.

   [107]Exhibit 32.

Matters relating to drugs

1. In the June 2017 report, Ms J said that the mother told her that, when she was about 20-21 years of age, she “went off the rails” and used amphetamines, including by injecting: her account included that she had used amphetamines quite heavily for a period of eight months and that there was a time when she used amphetamine every day. She denied ever using heroin, as alleged by the father.  She also told Ms J that she had not used any type of drugs since she removed herself from the environment in South Australia, other than that, when she first met the father, she smoked marijuana twice within a couple days of each other as he brought the drug home and they both smoked it.   

2. The father told Ms J in 2017 that the mother had previously admitted using heroin in the past; he said he knew that this drug damages the brain and causes people to make poor decisions and said he felt that this was why the mother made poor decisions about Z. Mr J reported that, whilst the father told her he  would never say this to Z, he believed that the mother’s asserted previous heroin use may explain her behaviour rather than her having a personality disorder as he had once believed  (he previously thought her a narcissist). Given the father’s demonstrated willingness to discuss matters with Z (as discussed later in these Reasons), I am somewhat sceptical about the father’s assertion that he would never tell Z about this aspect of his beliefs about the mother.

3. I accept that urine drug screen tests of a sample provided by the mother on 12 June 2020 did not reveal the presence of any illicit drug.

4. I note that the urine drug screen tests of a sample provided by Mr E on 25 July 2020 revealed a very dilute sample which suggested a large water intake prior to the passage of urine or perhaps adulteration of the sample. I accept Mr E’s explanation that, having never before been asked to provide a sample for testing purposes, he drank a large quantity of water before providing the sample so that he could do so. I am not persuaded that his large intake of water prior to providing the sample was for the deliberate purpose of diluting the same to avoid the detection of drug metabolites. I also accept that, after the Independent Children’s Lawyer asked that he do so,[108] Mr E provided a further sample on 15 August 2020, the testing of which did not reveal the presence of any illicit drug.

   [108]Exhibit 8.

5. There is nothing in the evidence before me to support the suggestion that the mother previously used heroin; there is nothing in the evidence before me to support the suggestion that either the mother or Mr E currently use any illegal substance.

Alcohol use

1. I accept that, on 9 January 2020, the Department received information to the effect that: the notifier was concerned about alleged drug use by each of the mother and Mr E and their excessive consumption of alcohol; Z and X were frequently left at the K Town Club for extended periods of time (where the mother works and Mr E is drinking); the mother had a lot of alcohol at her home and that she and Mr E both drank a lot of alcohol; the notifier had heard rumours that Mr E was a drug user, had been smoking marijuana and believed there would be drugs at his house; the notifier was unsure about how much alcohol the mother would have at her house. 

2. The Department concluded that, whilst it was not ideal Z was left to entertain herself at the Club for long periods of time while her mother was working and Mr E was drinking, there was insufficient evidence to conclude that this was likely to result in significant harm. Further, the Department noted there was insufficient detail about the mother’s asserted alcohol use to determine whether Z was likely to suffer significant harm; it was said that, as Z was reported to be clean and appropriately dressed, there appeared to be little evidence to indicate her wellbeing had been detrimentally impacted by the reported behaviour.[109]  I agree.

   [109]Exhibit 29.

3. In an email sent to the Independent Children’s Lawyer on 22 May 2020, the father sought that the mother and Mr E undergo various test to determine whether they were using illegal drugs or abusing alcohol. In a further email sent to the Independent Children’s Lawyer on 26 May 2020,[110] the father said that he had been informed directly by Z that “the alcohol consumed is nightly and consists of 1 full bottle of Jack Daniels and 3 bottles of wine”; he also said that people visited every night and they all smoke from “in Z’s own words ‘a bottle with water in it and a hose’”.

   [110]Exhibit 9.

4. I accept that CDT results of a sample provided by the mother on 12 June 2020 did not support a conclusion of excessive alcohol intake. I consider that, if the mother [and Mr E] had in fact consumed the amount of alcohol on a nightly basis that the father reported, it is highly unlikely that their various test results would have been as they are.

5. I accept that when he spoke with her in in mid-2020, the father expressed concern to Ms H about the mother and Mr E using alcohol and marijuana as he said Z had seen this and told him of it.  He outlined that he was not satisfied with the mother’s CDT test and wanted her to have a hair follicle test – he also said he wanted Mr E to undertake these tests. However, when Ms H noted that Mr E would be willing to do so if the father covered the costs, he told her that they would let the Court decide and that he was not paying for the tests as the mother was supposed to pay for his tests and she had not.

6. I accept that, when Mr E spoke with Ms H in July 2020, he told her that he drank alcohol socially and, at least inferentially, denied the excessive alcohol use alleged by the father.  I accept his explanation for falling asleep during a family games night.

7. I accept Mr E told Ms H that there may be a low range drink driving charge in his police records.  In fact, Mr E has three drink driving charges:  I accept that, on 18 September 2002, he drove a motor vehicle with a blood alcohol content of 0.058 per cent;[111] I accept that, on 19 February 2006, he was apprehended driving with a blood alcohol content of 0.15 per cent and over;[112] and I also accept that, on 23 June 2017, he was apprehended driving a motor vehicle with a blood alcohol content of 0.162 per cent.[113]

   [111]Exhibit 19.

   [112]Exhibit 20.

   [113]Exhibit 21.

8. I accept that the mother told the father, via email sent on 16 July 2020, that Mr E (whom he had not then met) was prepared to accommodate his requests that he undergo CDT testing and urine analysis testing on the proviso that the father met the costs of the same.[114] I accept that the mother reiterated this request by email sent 24 July 2020.[115]

   [114]Exhibit 9.

   [115]Exhibit 9.

9. I accept that the CDT results of a sample provided by Mr E on 25 July 2020 did not support a conclusion of excessive alcohol intake.

Alleged failure to supervise Z

1. According to Departmental documents, information provided to the Department on 9 January 2020 about the mother and Mr E included that the notifier was concerned about Z and X (Mr E’s daughter) being left for someone else to look after for extended periods of time.

2. The Department concluded that, whilst it was not ideal the child was left to entertain herself at the Club for long periods of time while the mother was working and Mr E was drinking, there was insufficient evidence to conclude that it was likely to result in significant harm. The Department concluded that there appeared to be a parent still present on the premises and that the child had access to a Club office and was able to use the computer there.[116]  I accept the evidence in the mother’s case about the facilities available to both Z and X when they spent time at the Club.

   [116]Exhibit 29.

Attitude toward the father and his role in the child’s life

1. I accept that, in her affidavit of 1 February 2017 in support of her non-filing of a Family Dispute Resolution Certificate[117] the mother outlined her concerns about the father’s behaviours. I accept these included: the allegations made against Z’s step-grandfather; that he had taken Z to have an invasive internal examination which had been prevented when she intervened; that he had verbally abused Z when she did not tell police what he expected her to; that he  verbally abused Z at the changeover and called her a liar and threatened to kill the step-grandfather; that Z’s psychologist had said that she believed that Z was at risk of psychological harm whilst in her father’s care; that he had been charged with drug offences and had previously attempted suicide; that she had received numerous abusive emails and texts from him and was very fearful of Z’s safety in his care. I accept the mother also said the father had engaged in relentless correspondence with her and her solicitor, in which he disagreed with any proposal she advanced about Z’s psychological welfare or spending time with him pending mediation and that he had had refused to undergo a psychiatric assessment or have a hair follicle test.  I do not doubt the father’s capacity and willingness to engage in ongoing correspondence or that receipt of the same could easily feel “relentless”.

   [117]Exhibit 12.

2. I accept Ms J’s recounting, in her June 2017 report, that the mother presented with a “great deal of animosity” toward the father and that this was evident throughout her entire three hour interview.  As she had with the father, Ms J opined then that the mother’s ability to act in Z’s best interests may have been, at times, clouded by her animosity toward the father.

3. I accept Ms J’s recounting, in her October 2018 report, that the mother presented very differently to the way in which she had first presented: that is, I accept that, when interviewed by Ms J for the second time, the mother presented as child-focused and appeared to have “moved on” from her animosity toward the father. I accept Ms J’s assessment that, unlike during the earlier interview, the mother conveyed her concerns about the father and his parenting of Z in a considered and appropriate manner.

4. I accept that the mother told Ms H in July 2020 that she believed Z loved her father and generally enjoyed spending time with him, that she believed the father loved Z and that Z would feel this love from him. 

5. I accept Ms H’s assessment of the mother and Mr E as demonstrating a strong ability to approach all issues from Z’s point of view:  I accept her description of this child-focused perspective as “mind-mindedness”. I accept Ms H’s explanation that this was the ability of care-givers to hold the mind of the child in their own at all times and in the interactions and behaviours around the child and that it was strongly predictive of security and attachment.

Family violence[118]

[118]        Family Law Act 1975 (Cth) ss 60CC(3)(j), 60CC(3)(k) and 60CG.

1. I accept that, on 1 February 2017, the mother applied for a Protection Order against the father. I also accept that the basis for such application was her assertion that the father had emphasised, in a voice message to her on 30 January 2017, that he was going to take Z from her and that she would “lose” her forever.  I accept that the mother’s Application asserted that she needed the father to stop sending abusive text messages and leaving abusive voice messages; she noted he had been asked to do so and would not stop.[119]  Given the manner in which the father has maintained his position and focus about the allegations against Z’s step-grandfather and his attitude toward orders with which he does not agree, I have no difficulty at all in being persuaded that the father had simply decided to continue to communicate with the mother as he pleased.

   [119]Exhibit 22.

2. I accept that a domestic violence Protection Order, which named the mother, her then partner, Mr W, and Z as ‘involved persons’, was made in the Magistrates Court on 8 March 2017 on a ‘without admissions’ basis. This order expired on 7 March 2019.[120]

   [120]Exhibit 23.

3. I accept that, as Ms J reported in her 2017 report, the mother told her that, although there had not been any physical violence in her relationship with the father, there had been a lot of verbal abuse and abusive text messages.  I accept she said he had been very controlling and untrusting and thought that his depression played a large part in that. Whilst I accept the father denied to Ms J that there had been any domestic violence in the relationship, I think it much more likely than not that matters were as the mother described.

4. I note that Mr E told Ms H in mid-2020 that he had never had a protection order made against him. On the evidence before me, there is no suggestion that there is any domestic of family violence in the mother’s relationship with Mr E.

5. As already noted, the status of the protection order as between the father and Ms D is a little unclear to me; however it seems likely that there remains a nationally recognised domestic violence order between the father (as the respondent) and Ms D (as the aggrieved) in force and effective until 29 January 2025.  I accept that Z is also named on that order.[121] 

   [121]Exhibit 37.

Parental Relationship

1. It is well established that the parental relationship has been highly conflictual and attended by significant distrust and conflict about many issues relating to Z’s welfare.

2. I accept that, when she spoke to Ms J for the 2017 report, the mother told her that she had lost all respect for the father but accepted that, as Z’s father, he would always be around. I accept she said, in essence, that, from her perspective, the prior equal shared parental responsibility had not worked because the father had acted unilaterally in taking Z to doctors for medical examination following his allegation that she had been sexually abused by her grandfather; in addition, he had previously had Z’s ears pierced without consulting her. I accept that the mother also told Ms J that she found email communication from the father stressful – in essence, because she did not know what he would come up with next and what “the next thing will be.”

3. Further insight into the parental relationship is provided by looking at what each parent told Ms J in 2017 about the issue of telephone communication between Z and her father: the mother said he had failed to take up all his opportunities to speak with Z by telephone and had only called on four of a possible 22 occasions; whilst the father accepted he had not called, he said this was because he did not think it fair on Z because the mother ‘stood over’ her during the calls – he also said that he had recorded the calls, but thought Z did not know this. 

4. Whilst I accept that the father told Ms J in 2017 that he did not talk about the mother or her house to Z, the child’s comments to Ms J – as set out in paragraph 77 – make it clear that she was, even then, well aware of the animosity between her parents.

5. I note that, in her June 2017 report, Ms J said she had no confidence that these parents could resolve issues between themselves. I certainly accept that they have shown that they have struggled to do so. I accept that Ms J assessed both parents to be very resolute and rigid in their respective positions; I consider that, in their own ways, this remains the position.  I also accept that there appears to have been little change to the animosity each parent holds about the other in respect of the issue of the allegations involving Z’s step-grandfather.

1. I accept that, as at 2017, Ms J opined that the issues that most placed Z at risk of suffering emotional harm were the ongoing parental dispute and her parents’ level of animosity toward each other. I also accept her assessment to the effect that, if this continued unnecessarily into the future, Z’s long-term emotional health would be at significant risk. I accept that, as at 2017, Ms J also assessed that, whilst both parents acknowledged the likely adverse effect future parenting proceedings would have on Z, neither had any insight into their respective contributions to the same – and both sought to blame the other.

2. I accept that, when interviewed in September 2018, the mother told Ms J that she and the father did not really communicate; she complained that, until he engaged new legal representation in February/March 2018 – after which things improved (although he still told her that no-one respected her) – he had continued to make derogatory remarks to her and send emails. A further example of the ongoing difficulties in these parents’ co-parenting relationship can be seen in the fact that, when Ms J asked the father whether he thought he had been abusive or disrespectful in his communication with the mother in the past, he said that, if anyone had acted like that, it was the mother. Whilst the father denied having previously engaged disrespectfully with the mother, I think her recounting of their communication to be more likely than not.

3. I accept that, in her October 2018 report, Ms J concluded that – especially given the father’s animosity toward the mother and his view that she was deliberately not co-parenting with him in order to obtain a better outcome from the Court ­– it was unlikely that these parents would ever be able to agree about even the most basic decisions about Z.  In what I interpret as an example of this, she noted that Z had not then been able to attend on a psychologist as her parents were unable to agree about who she should see. Such disagreement found another manifestation in the issue of whether Z suffers from anxiety that requires medical intervention or not: the father contended that she does, whilst the mother asserted that there has not been any informed diagnosis that this is the case; he said Z had been diagnosed with anxiety, while the mother said she had been diagnosed as suffering from headaches.

What Orders are in Z’s best interests?

Allocation of parental responsibility

1. The presumption that it is in Z’s best interests that her parents have equal shared parental responsibility for her[122] does not apply if, relevantly, there are reasonable grounds to believe that one of her parents has engaged in family violence, as that term is defined in section 4AB(1) of the Act.[123] Further, if the presumption does apply, it may be rebutted by evidence that satisfies the Court that it would not be in Z’s best interests for her parents to have equal shared parental responsibility for her.[124] If the presumption does not apply, then the power to make parenting orders pursuant to s 65D of the Act is “at large”, albeit subject always to Z’s best interests being the paramount consideration.[125]

   [122]        Family Law Act 1975 (Cth) s 61DA.

   [123]Family Law Act 1975 (Cth) s 61DA(2).

   [124]        Family Law Act 1975 (Cth) s 61DA(4).

   [125]        Cox & Pedrana (2013) FLC 93-537, 87,079 [19]; Family Law Act 1975 (Cth) ss 60CA and 65AA.

2. As I am satisfied there are reasonable grounds to believe that Z’s father has engaged in family violence, the presumption that it is in Z’s best interests that her parents have equal shared parental responsibility for her does not apply.

3. Given the findings I have made about the parental relationship, I am easily persuaded that it is not in Z’s best interests for there to be an order that her parents have equal shared parental responsibility for major long-term issues about her. This is because, if there is an order that they are to share parental responsibility for Z and the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to her, such order requires the decision to be made jointly by her parents[126] and that each parent consult the other in relation to the decision to be made about that issue and make a genuine effort to come to a joint decision about it.[127] I am simply not confident that the parents are capable of discharging their requirements.

   [126]        Family Law Act 1975 (Cth) s 65DAC(2).

   [127]        Family Law Act 1975 (Cth) s 65DAC(3) of the Act.

4. In her 2018 report, Ms J recommended that, given the ongoing parental dispute and the parents’ inability to co-parent effectively and make decisions together in Z’s best interests, the Court give consideration to the mother’s proposal that she be afforded sole parental responsibility for the major long-term issues relating to Z. In her August 2020 report, Ms H expressed her opinion that the relationship between Z’s parents was completely fractured and lacking in what she described as a “key element of decision making – trust”.  I accept both Ms J’s recommendation and Ms H’s assessment in this respect. Nothing in the evidence persuades me that these parents can make joint decisions or realistically consult each other or make a genuine effort to come to a joint decision.

5. I also accept – as has been concluded by both Ms J and Ms H – that the father’s ability to be child-focused has, on occasion, been compromised. In arriving at this conclusion, I have relied, by way of example only, on his reaction to Z’s police interview, his determination to prioritise his relationship with Ms D ahead of his interaction with Z, his attitude toward any orders which would shield Z from exposure to what I have found to be the domestic violence in his relationship with Ms D and his actions on 28 August 2020, as outlined below.

6. On the evidence before me, I consider it is in Z’s best interests for her mother to be accorded sole parental responsibility for the major long-terms issues relating to her, albeit with the requirement that she afford the father the opportunity to provide input into such decisions. Whatever his input, it will be the mother who makes the ultimate decision.

Living and time orders

1. I accept that, in her July 2017 report, Ms J opined that, given the level of animosity toward the father she then assessed as existing within the mother’s household, the mother’s proposal for Z to live with her and spend long-term supervised time with her father carried with it the risk that the child’s relationship with her father would be severely affected – an outcome she thought should be avoided as it would have a “devastating effect” on Z.

2. I also accept that, as at 2017, Ms J in fact recommended that there be a return to the previous week-about parenting regime, provided that the father undertook: not to question Z about any abuse allegations; to undergo regular drug tests (and achieve clean results) and to continue to be compliant with his mental health treatment.

3. I accept that Ms J’s position had changed in her October 2018 report. I accept that, in that report, she said she did not support Z living with her parents in a week-about arrangement because they were unable to co-parent her to any significant degree – something she opined was likely to result in Z suffering ongoing stress and which had the potential to detrimentally affect her long-term development and emotional security.

4. I accept that, as at October 2018, Ms J recommended the continuation of the then existing parenting arrangement as it appeared to be working well for Z, would provide her with stability, would mean that her routine was not disrupted and would also permit her to spend substantial time with her father and allow her to maintain her close relationship with him.

5. On the evidence before me, I consider it is in Z’s best interests that she continue to live with her mother, who I accept has ensured that her physical and emotional needs have been met.

6. I accept Ms H’s evidence that, as previously assessed, it appeared that Z had taken on the role of “peace maker” between her parents: in particular, I accept her reliance on the fact that, when interviewed, Z had suggested that both the current arrangements and week-about time might be suitable. As already noted, I consider that, in responding as she did to Ms H, Z really manifested a desire not to be responsible for deciding the time she will spend with each of her parents as opposed to expressing a particular wish for a particular parenting regime.

7. Whilst I accept Ms H’s assessment that, during her observations of Z with her parents, she could detect no signs of anxiety, I also consider it clear on the evidence before me that, despite orders intended to prevent this, Z has been exposed to domestic violence, to the point where police have become involved, between her father and Ms D. I accept Ms H’s assessment that this fact casts serious doubt on the father’s ability to protect Z from harm.

8. I consider that the father’s consistent denial of engaging in violence toward Ms D, his enjoinment of her in such denials, his consistent attempts to cast responsibility for their interactions completely onto Ms D and his consistent attempts to discredit her recounting of his behaviours by saying that she is an alcoholic and “all alcoholics lie” means that it is highly unlikely that his capacity to protect Z from exposure to a repeat of the past behaviours has improved since Ms H’s assessment. That Ms D and the father intend to continue in their relationship suggests to me that it is more likely than not that, if she spends time with him in the future as she has in the past, Z will again be exposed to family violence between them, especially given, as Ms H remarked, Ms D continues to drink alcohol.

9. That Ms D has, in my view, presented as she did to Ms H during their discussion of the domestic violence in her relationship with the father – namely that, despite having been able to recall to Ms H many events and details of her life, she was ostensibly unable to recall any information about domestic violence or her criminal charges and that she suggested that the detailed police information was the result of hallucinations – compels the conclusion that her presence is unlikely to be protective during any time Z spends with her father.

10. I accept Ms H’s opinion that the impact on Z of her previous exposure to acts of family violence between the father and Ms D is yet to be established. I also accept her assessment that it would, no doubt, have been frightening for Z. I accept Ms H’s opinion to the effect that, if the previous parenting arrangements continue absent acknowledgement of the harm to Z, then Z will be at serious risk of further exposure to violence and of physical and emotional harm. The father’s evidence certainly did not suggest that it was likely that there would be any future acknowledgment by him that his actions have previously exposed Z to the harm associated with being a witness to, for example, the December 2019 incident.

11. I am also particularly concerned that it appears that Z felt unable to tell anyone about the December 2019 incident. I consider this suggests that it is highly unlikely that she would tell her mother if she was exposed to family violence between her father and Ms D again.

12. I accept Ms H’s evidence about the importance for Z of feeling like she has a safe relationship with each of her parents.  I accept, as Ms H outlined, that, at Z’s age and her developmental stage, it is extremely important that her parenting arrangements, routine and home environment are consistent, stable and free from emotional harm, violence, physical harm and conflict. I also accept Ms H’s evidence to the effect that, irrespective of the love between Z and her father, her time with him needs to be physically, emotionally and psychologically safe and free from any form of violence, inappropriate questioning and alcohol or substance misuse.

13. Given the evidence about the father’s functioning, Ms D’s functioning and their interactions over a relatively lengthy period of time now – as discussed above – I am not persuaded that Z will obtain the necessary consistency, stability, and freedom from emotional harm, violence, physical harm and conflict if her future time with her father is unsupervised.

14. Further, given the father’s evidence on 28 August 2020 that, on the way to dropping Z to school on the morning of 27 August 2020, he pulled the car over and told her that he would not see her in a Contact Centre and, to use his terms, said his “good-byes” to her, I am not persuaded that Z’s time with her father will be emotionally and psychologically safe for her unless it is supervised.

15. I accept Ms H’s evidence to the effect that she thought it apparent that the father possessed no insight about how his behaviour impacted on Z. Any conclusion to the contrary would, I consider, be perverse given his evidence on 28 August 2020 that, during the conversation he had with Z on the way to school on 27 August 2020, the following occurred:

    I said to her, I said, “Z,” I said, “I don’t know how this is going to go.  You’re aware of what’s going on at the moment, but I said to you, how do you feel about going back to a contact centre to see me?”  And she said, “I wouldn’t like that.”  And I said, “Well, I’m glad,” I said, “because going there I felt like a criminal.”  I said, “So if it turns out that I’ve got to see you in a contact centre I won’t be seeing you.”

    …

    … I pulled over and I got out of the car and I walked around the other side.

    And then what happened?  

    Exactly what I said, your Honour.  I had a chat with her and I explained to her.  I said, “How do you feel about seeing me in a contact centre?”  And she said, “Well, that wouldn’t be very good.”  I said, “Well, darling, I can’t change the direction that things are going at the moment but I need to tell you that I won’t see you in a contact centre either.”  And I won’t, your Honour.  I am making that very clear right now.

    You’ve made that very clear?  

    Yes.  And she doesn’t want to see me in a contact centre and if the mother wants to push this order then I won’t see Z until September.  Z is well aware of it.

16. The father maintained his position at the conclusion of the evidence that, if an order was made for long term supervision of his time with Z, he would not see her and would, in essence, ‘walk away’ and/or wait for her to “run”. That he did so despite also recounting that, after he told Z the matters set out above, she was “devastated” (although not crying by the time he left her at school) further demonstrates his inability to reflect about the impact of his decisions and behaviours on Z.

17. I also consider the father’s actions on the morning of 27 August 2020 to be highly manipulative of Z. That he was willing to make the comments to her that he did on the way to school in the midst of the Court proceedings about her future parenting regime persuades me that, even absent the other issues the subject of discussion in these Reasons, Z would, at present, be at an unacceptable risk of suffering harm from being exposed to emotional abuse by her father if her time with him remained unsupervised. His actions in this respect also persuade me that it is not currently in Z’s best interests that she have unsupervised communication with her father.

Does Z need to attend on a psychologist?

1. The father remained of the view that, despite there being no evidence that Z has repeated any threat of self-harm after the statements made by her in 2018, she needs to receive ongoing psychological treatment and support. I accept the evidence given by the mother about the manner in which Z’s school addressed her statement in 2018; I accept that the school supported Z at that time and that they have continued to do so.

2. I accept that the father told Ms H in mid-2020 that Z suffered from anxiety and experienced migraines as a result; I accept he said he believed she needed to be on medication, as he said had been recommended by Dr R. I accept the father also told Ms H that “Z’s anxiety is through the roof, she can’t go to sleep at night and wants me to lock the doors and she used to be a bubbly little girl but this has ruined her and she needs to see a psychologist.”

3. I accept the mother’s evidence to the effect that she is, in a sense, watchful about Z’s functioning. I consider that, if Z demonstrated any behaviours in the future that suggested that she may benefit from receiving therapeutic support (whether from a counsellor or a psychologist) her mother would not hesitate to ensure she received the same.

4. Consequently, on the evidence before me, I am not persuaded that it is necessary for the Court to make an order requiring the mother to take Z to see a psychologist.  I certainly do not think it is in Z’s best interests that she be required to see a psychologist or therapist if she does not need to see such person.

Final comments about the terms of the orders to be made

1. To the extent that any other aspects of the parenting orders to be made are not the subject of particular discussion in these Reasons, I have concluded that the same are in Z’s best interests because such orders will, for example: enable her to travel overseas and obtain the benefits associated with this; ensure that her father knows if she is travelling overseas; and at a frequency and in the manner her mother considers appropriate, facilitate her communication with her father.

2. To the extent that the orders made do not include orders sought by either parent or the Independent Children’s Lawyer, that is because I have not been persuaded that the same are in Z’s best interests.

3. I also record that whether the father chooses to avail himself of the opportunity to spend time with Z in the future is entirely a matter for him.

4. For the reasons expressed, I consider that the orders set out at the commencement of these Reasons are the orders which, in the reality of Z’s circumstances, as established by the evidence before me and as adverted to above, are now in her best interests and proper.

I certify that the preceding two hundred and sixty eight (268) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 20 November 2020.

Associate:     

Date:              20 November 2020