KHOO & PRYDE

[2013] FamCA 929

FAMILY COURT OF AUSTRALIA

KHOO & PRYDE [2013] FamCA 929

FAMILY LAW – CHILDREN – With whom the child shall live and spend time – parental responsibility – mother to have sole parental responsibility – child to live with the mother – child to spend supervised time with the father at a contact centre twice per year – infrequent visits in the child’s best interests – allegations of child abuse and family violence sustained against the father – allegations against the father of child sexual abuse not substantiated – no unacceptable risk of harm for the child to maintain a meaningful relationship with the father in that manner – both parties struggle to recognise the child’s emotional needs – the child’s relationship with the father is hampered by the child’s perception of pressure from the mother and her half-sibling – the parties cannot communicate due to the mother’s entrenched animosity towards the father.

FAMILY LAW – INJUNCTIONS – father restrained from approaching the mother’s home or the child’s school – mother required to ensure the child’s retention of the father’s surname.

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65D, 65Y, 65Z, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 68B
Trans-Tasman Proceedings Act 2010 (Cth)
Trans-Tasman Proceedings Act 2010 (NZ)

AMS v AIF (1999) 199 CLR 160
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Cales & Cales (2010) FLC 93-459

Goode & Goode (2006) FLC 93-286
H & K [2001] FamCA 687
Marriage of Bieganski (1993) 16 Fam LR 353
McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8
Moose v Moose (2008) FLC 93-375

MRR v GR (2010) 240 CLR 461
Sampson v Hartnett (No.10) (2007) FLC 93-350
U v U (2002) 211 CLR 238

APPLICANT: Mr Khoo

RESPONDENT: Ms Pryde

INDEPENDENT CHILDREN’S LAWYER: Boughton Legal

FILE NUMBER: BRC 7330 of 2010

DATE DELIVERED: 28 November 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Brisbane

JUDGMENT OF: Justice Austin

HEARING DATE: 29, 30, & 31 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr McCauley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Boughton Legal

Orders

1. All former orders relating to the child N, born … 2001, (“the child”) are discharged.

2. The mother shall have sole parental responsibility for the child.

3. The child shall live with the mother.

4. Pursuant to s 68B of the Family Law Act the father is restrained from entering upon or approaching within 100 metres of:

   (a)The mother’s residence; and

   (b)Any school attended by the child.

5. The mother shall forthwith:

   (a)Notify the father, and keep him notified, of the school attended by the child; and

   (b)Authorise and request the principal of any school attended by the child to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the child.

6. Unless otherwise agreed in writing, the parties shall take all reasonable steps to ensure that the child spends time with the father for two hours on the first Saturday in January and on the first Saturday in July each year.

7. Unless otherwise agreed in writing, for the purpose of implementing Order 6 hereof:

   (a)The time spent by the child with the father shall, unless otherwise agreed between the parties, occur at and be supervised by staff at the H Contact Centre or such other supervisor nominated by staff at that organisation (“the supervisor”);

   (b)The parties shall forthwith register with, undertake all intake procedures required of them by, and comply with all reasonable directions of the supervisor;

   (c)Leave is granted to the parties to furnish to the supervisor sealed copies of these orders;

   (d)The time that is to be spent by the child with the father shall commence at the time designated by the supervisor.

   (e)The mother shall ensure the prompt delivery and the collection of the child to and from the supervisor;

   (f)If an occasion on which the child is due to spend time with the father is frustrated by the unavailability of the supervisor, illness of the child, or illness of the parties, the time that the child was due to spend with the father shall be made-up at another time as close to the original time as can be arranged; and

   (g)The father shall pay all costs of the supervisor.

8. Each of the parties shall take all reasonable steps to ensure that the child is able to communicate with the father in the following manner:

   (a)By the father being able to send letters, cards, and/or gifts to the child on or about dates proximate to her birthday and Christmas Day, and

   (b)By the mother promptly sending to the father:

   (i)Written acknowledgement of receipt of the father’s written communication, and

   (ii)Any letters, cards, photographs, or other written communication that the child wishes to be conveyed to the father.

9. For the purposes of implementation of Order 8 hereof the parties shall forthwith notify one another in writing, and thereafter keep one another notified in writing, of the postal address to which mail can be sent to them.

10. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective mobile telephone number and email address.

11. The mother shall notify the father of any medical emergency, illness or injury suffered by the child whilst in her care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the father about the condition and treatment of the child.

12. The parties are restrained from causing or permitting the child to be known by any surname other than “Khoo”.

13. Within seven days hereof the mother shall cause the child to be delivered to the Independent Children’s Lawyer to have explained to her the effect of these orders, and if deemed appropriate by the Independent Children’s Lawyer, the reasons for such orders.

14. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

15. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

16. Costs are reserved for 28 days.

17. Any and all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7330 of 2010

Mr Khoo

Applicant

And

Ms Pryde

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the orders that should govern the parenting arrangements for the parties’ only child.

2. The parties separated in 2006 and their controversy over the child has raged since 2010. Their dispute entailed all manner of allegations, including family violence, child sexual abuse, and child physical abuse, for which reason the proceedings were ultimately transferred by the Federal Magistrates Court (as the Federal Circuit Court then was) to this Court and then classified into the Court’s Magellan protocol.

3. Regrettably, the progress and determination of these proceedings has not been an entirely satisfactory process on two counts. Firstly, the timely progression of the proceedings to hearing was frustrated by the institution of parallel criminal proceedings against the father, which caused suspension of these proceedings until completion of the criminal prosecution.[1] Secondly, the hearing was hampered by a dearth of evidence, stale evidence, and evidence of dubious quality, no doubt due in part to the parties’ lack of legal representation for significant periods of the litigation and at final hearing.

   [1] Notation 1 made on 14 March 2012

4. The Court was consequently faced with badly fractured family relationships and few tools with which to remedy them.

Background

1. The parties commenced their relationship and began cohabitation during 1999. They married in September 2002 and finally separated in December 2006.

2. Their only child (“the child”) was born in 2001 and is now aged 12 years. Save for the belated revelation about her living with her step-father (“Mr W”) and her half-siblings for the last six months in New Zealand, she has lived with the mother since the parties’ separation.

3. The mother has three other children. The eldest (“L”) was born to an earlier relationship and she is now aged 15 years. The other two children were born to the mother’s subsequent relationship with Mr W and are now aged four years and two years respectively. None of those children are the subject of these proceedings.

4. The child and L have lived with Mr W since April 2013, but the two youngest children have lived with him since the mother and Mr W separated in about October 2012. The mother visited them in New Zealand only periodically and the child did not return to Australia until the day before the hearing.

5. Following the parties’ separation in December 2006 the child frequently spent time with the father. Initially, such visits occurred each weekend, for longer holiday periods, and on other special occasions. That arrangement was later consensually varied so that the weekend visits occurred fortnightly instead of weekly.

6. Those arrangements continued without interruption until late December 2009, when the mother informed the paternal grandmother that she would not allow the child to spend any more time with the father or members of the paternal family. The mother explained the reason for her decision was the revelation by the child that the father used excessive force in her corporal punishment.[2]

   [2] Mother’s aff 6/7/11, paras 21-22

7. The mother alleged that after the elapse of some months she permitted the child’s visits with the father to resume, but the father asserted the child only visited him once more in May 2010.[3] Either way, the mother again stopped the visits at about that time, but there is considerable uncertainty in the evidence about precisely when and why that happened.

   [3] Father’s aff 21/11/12, paras 19-20

8. The mother initially deposed it occurred because she was informed by the father’s partner at the time (“Ms P”) that the child was being exposed to family violence in their household, and further, that the father had physically abused her child (“Y”).[4]

   [4] Mother’s aff 6/7/11, paras 25-28; First Family Report, para 39

9. L was privy to Ms P’s allegations and her reaction to that knowledge was to inform the mother that she too had previously been physically abused by the father in exactly the same manner alleged by Y,[5] which she had never earlier revealed. The mother asserted that she then followed instructions issued to her by the child welfare authority in May 2010 not to allow the child to see the father.[6]

   [5] Mother’s aff 6/7/11, para 29; Third Family Report, para 39

   [6] Mother’s aff 6/7/11, para 40

10. However, the mother also confusingly deposed that her decision was influenced by events in preceding months. The mother alleged that upon the child’s return to her from the father in either March or April 2010, during a discussion she initiated with both the child and L, L revealed the father had previously “touched her in the genital area”.[7] The mother then took both the child and L to consult with a general practitioner and a counsellor and during the consultation with the counsellor the child revealed that “something of a sexual nature had happened between her and [the father] once”.[8]

    [7] Mother’s aff 6/7/11, paras 32-33

    [8] Mother’s aff 6/7/11, paras 35-36; Exhibit M1

11. Self-evidently, any allegations then made by L against the father could only have related to the father’s conduct years before, prior to the parties’ final separation in December 2006, because she did not spend any time with the father from a time shortly after their separation.[9] L was interviewed by police on four separate occasions between June 2010 and October 2011.[10] She made allegations of both physical and sexual assault against the father during those interviews, but her allegations were inconsistent in several material respects.

    [9] First Family Report, para 31

    [10] Exhibits ICL2, ICL3, ICL4, ICL5

12. As for the alleged disclosure of sexual abuse made by the child about the father to her counsellor, such disclosure was squarely contradicted by what the child told the police when she was later interviewed by them in July 2011. Even with her knowledge of L’s pending allegations of sexual abuse against the father, the child made no allegations of sexual abuse against the father. She expressly said no-one had ever touched her “private parts” and she had never touched anyone else’s “private parts”.[11]

    [11] Exhibit ICL1

13. These proceedings were commenced by the father in August 2010, apparently due to his dissatisfaction with the mother’s unilateral decision to sever the child’s interaction with him some months earlier.

14. Once the proceedings were commenced, the mother made her position plain by filing a Notice of Child Abuse and Family Violence in which she alleged, firstly, the father sexually abused both the child and L, and secondly, he physically abused the child, L, and her.

15. The first suite of interim parenting orders was made on 22 September 2010, providing for the child to live with the mother and spend supervised time with the father for two hours each weekend at a contact centre.

16. The second suite of interim orders was made on 30 November 2010. The only change was to alter the identity of the contact centre used by the parties.

17. The evidence is scant, but the child apparently visited with the father a number of times pursuant to those orders in late 2010 and/or early 2011.[12]

    [12] Third Family Report, paras 10, 38

18. The third suite of interim orders was made a year later on 10 November 2011. Those orders suspended the orders allowing the child to spend time with the father, which variation apparently occurred because the father was charged in August 2011 with offences relating to his past treatment of L and Y.[13] The charges in respect of L were subsequently withdrawn, but the father later pleaded guilty to some offences concerning Y.[14]

    [13] Father’s aff 21/11/12, para 45; Third Family Report, para 11

    [14] Father’s aff 21/11/12, paras 47-48

19. The fourth and last suite of interim orders was made on 11 July 2013. Those orders re-instated arrangements for the child to spend supervised time with the father for two hours at a contact centre, though fortnightly instead of weekly, and only upon condition of the father’s completion of a course of psychological therapy with Mr S. Orders were also made for the mother to have sole parental responsibility for the child and for the child to live with her.

20. Those last orders have not been implemented. There was a waiting list at the contact centre, but irrespective, the evidence elicited at trial surprisingly revealed the mother took the child to New Zealand and left her to live with Mr W in April 2013.[15] As already noted, the child did not return to Australia until the day before the final hearing commenced.

    [15] Third Family Report, paras 3, 6, 12, 28, 42

21. The matter was fixed for final hearing in late October 2013 when the evidentiary limitations were obvious: neither party was legally represented, the affidavit evidence they each relied upon was largely historical, much of their evidence was little more than bare subjective opinions in any event, much of the expert evidence was stale, the mother obdurately abstained from participating in the preparation of an updated Family Report, and the child had had no meaningful interaction with the father for some years.

22. However, neither party sought an adjournment of the hearing, perhaps because it was clear to them it was in their, and more importantly, the child’s best interests to finally determine the litigation, which had been pending for over three years. It is, of course, up to the parties to properly prepare and present their case. If they choose to have the Court determine their controversy on sub-optimal evidence, then so be it. The Court is obliged to exercise its power when its jurisdiction is regularly invoked. It is neither permissible nor advisable for the Court, in an attempt to accommodate the parties’ deficiencies, to resort to an inquisitorial forensic procedure, conduct the case for the parties, procure evidence, or manufacture an adjournment of the hearing. Therefore, with the commendable and able assistance of the Independent Children’s Lawyer, the hearing proceeded.

Proposals and primary evidence of the parties

1. The parties failed to comply with procedural orders requiring them to file and serve an Amended Application and Amended Response setting out the orders they currently propose for the child.

2. At the commencement of the final hearing, the father contended for orders that allocated equal shared parental responsibility for the child to the parties, allowed the child to continue living with the mother, and required the child to spend time with him. He proposed that the child be initially re-introduced to him for short periods on a weekly basis at a contact centre, but that the supervision subsequently be dispensed with and the regime expand incrementally so that the child ultimately spends time with him on alternate weekends and for portions of school holiday periods.

3. The mother also announced her proposal when asked at the commencement of the final hearing. She contended for allocation of sole parental responsibility for the child to her, for the child to live with her, and for injunctive orders to preclude the child from having any form of interaction with the father.

4. The father consensually relied upon the following material:

   (a)His affidavit filed on 9 August 2010;

   (b)His affidavit filed on 9 November 2010;

   (c)His affidavit filed on 8 July 2011;

   (d)His affidavit filed on 21 November 2012; and

   (e)His affidavit filed on 29 October 2013.

5. Neither the mother nor the Independent Children’s Lawyer objected to the father’s reliance upon the last affidavit, even though it was not produced until the final hearing began.

6. The father did not rely upon the affidavit of Ms P, as the Court earlier noted was his intention,[16] since they had separated and Ms P would not be available for cross-examination.

   [16] Notation 6(a) made on 2 October 2013

7. The mother consensually relied upon the following material:

   (a)Her affidavit filed on 21 September 2010;

   (b)Her affidavit filed on 6 July 2011; and

   (c)The affidavit of the maternal aunt, Ms O, filed on 8 July 2011.

8. The mother did not file an updated affidavit, as procedural orders permitted.[17]

   [17] Order 1 made on 2 October 2013

9. Both parties were permitted to provide supplementary oral evidence in chief.

Proposal of the independent children’s lawyer

1. The Independent Children’s Lawyer filed a Case Outline document on 4 September 2013 in which she foreshadowed the orders she tentatively proposed in respect of the child. It was expressly noted that the orders were not intended to be prescriptive and would be subject to revision in light of the tested evidence. As it transpired, she revised her proposal substantially, at least in respect of the future interaction between the child and father.

2. The Independent Children’s Lawyer proposed in her tendered minute of orders[18] that the mother have sole parental responsibility for the child, that the child live with the mother, and that the child spend only supervised time with the father at a contact centre.

   [18] Exhibit ICL16

1. The Independent Children’s Lawyer adduced evidence only by the tender of documents.

Additional evidence

1. The parties and Independent Children’s Lawyer additionally relied upon the evidence contained within:

   (a)The two Magellan Reports dated 5 March 2012 and 11 February 2013 provided to the Court by the Queensland Department of Communities, Child Safety and Disability Services;

   (b)The Family Report dated 4 March 2011 (“first Family Report”) prepared by Mr F;

   (c)The affidavit of the single expert, Ms C, filed on 12 July 2011;

   (d)The affidavit of the single expert, Mr G, filed on 11 February 2013, annexing his report dated 7 February 2013 (“second Family Report”);

   (e)The affidavit of the single expert, Mr S, filed on 1 July 2013; and

   (f)The updated Family Report dated 28 October 2013 (“third Family Report”) prepared by Mr G.

2. The mother deliberately declined to participate, and also declined to allow the child to participate, in the preparation of the third Family Report, which was ordered by the Court on 2 October 2013. Consequently, with the consent of the parties and the Independent Children’s Lawyer, orders and notations were made on the first morning of trial for the mother and child to immediately confer with Mr G and for Mr G to decide whether he would re-introduce the child to the father and observe them together, which consultations would furnish Mr G with additional information enabling him to supplement the third Family Report when giving evidence. He was cross-examined by the Independent Children’s Lawyer and the parties.

3. Neither the Independent Children’s Lawyer nor the parties required Mr F, Ms C, or Mr S for cross-examination. The absence of challenge to their evidence necessarily means it can safely be accepted as correct.

Applicable legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act 1975 (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

5. However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.

6. In the event an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).

7. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

8. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Allegations of child abuse

1. The mother’s allegations about the father’s abuse of children fell into several categories. So as to avoid conflation of the evidence relating to the various allegations it is important to separate the evidence and examine it carefully.

2. It may be conveniently noted at the outset that the father initially denied all allegations of abusive behaviour,[19] but that unconditional denial is certainly false in at least some respects.[20]

   [19] Father’s aff 12/11/12, para 27

   [20] Father’s aff 9/11/10, paras 9-10; Father’s aff 12/11/12, paras 9, 48, 87

Alleged sexual abuse of L

1. Although he is imprecise as to when it occurred, the father alleged the mother contacted him by telephone and informed him she would instigate false sexual abuse allegations against him.[21] Neither party was challenged in cross-examination about the truth of that evidence. The father deposed his friend Mr U overheard the conversation and implied he could corroborate him, but Mr U was not called to give evidence. The paternal grandmother also purported to have knowledge of the telephone call,[22] but she was not called to give evidence either. In such circumstances it is difficult, if not impossible, to know what to make of that evidence.

   [21] Father’s aff 12/11/12, para 26; Mr Pershouse’s report, para 18

   [22] Mr S’s report, para 97

2. The mother alleged that in March or April 2010 L revealed for the first time that the father had “touched her in the genital area”.[23] As already noted, the allegation must have related to a time before December 2006 when the parties separated, as L had no contact with the father from about that time.

   [23] Mother’s aff 6/7/11, paras 32-33

3. A report was first made about the child and L to child welfare authorities on 14 May 2010. The notifier reported that the father’s sexual abuse of L was suspected but, significantly, L had denied her sexual abuse by the father when directly asked by the mother.[24]

   [24] Magellan Report dated 5 March 2012 (page 2)

4. Following that report, L was first interviewed by police on 16 June 2010,[25] by which time she had abandoned any denial of sexual abuse. She conversely alleged during that interview the father had touched her on or around her vulva, but the circumstances of her disclosure were most intriguing. She said it happened “probably once” while she was fully clothed. She was touched over the top of her clothing and the force of the touch caused her the same degree of pain as a smack. She could not provide any more contextual detail. She could not say how, when or where it occurred and she was unable to say whether other people were around. Her explanation did not permit any rational inference about whether the physical contact was deliberate and furtive or accidental, as for example in the course of rough play. She appeared quite contained when pressed to provide details about the alleged sexual assault, but curiously, she was much more interested in relating, and highly distressed about, other revelations of her physical abuse by the father. 

   [25] Exhibit ICL2

5. In about August 2010 the father was approached by police and informed of the allegation that he had sexually abused L, but he was not then arrested or interviewed.[26] The police terminated the investigation, concluding the evidence was insufficient to commence a prosecution.[27]

   [26] Father’s aff 12/11/12, para 25; Exhibit ICL7

   [27] First Family Report, para 92(d)

6. L was interviewed by the police twice more in June and July 2011.[28] That occurred at the request of the mother and L.[29] During those interviews she made much graver allegations of sexual abuse against the father. The aggravated features of her allegations were perplexing in view of the continuing absence of the father from her life and the prior opportunity she had been afforded to report all of her grievances about him to police.

   [28] Exhibits ICL3, ICL4

   [29] Exhibit ICL7

7. Although using different words to describe the process, L alleged the father penetrated her vagina with his penis multiple times over several years at different houses occupied by the family. In fact, she alleged it happened “every time when mum went to work”. She alleged it first occurred when she was aged four years and last occurred when she was aged six years.

8. Vaginas are of course elastic anatomical organs, but it is difficult to accept that a large muscular man like the father could use his erect penis to penetrate the vagina of such a young child without causing any physiological injury at all. Unsurprisingly, with curiosity piqued, the police asked L directly about that and she simply said “it look bit red afterwoods (sic)”.[30]

   [30] Exhibit ICL3, transcript (page 71)

9. L alleged that on one occasion the father was almost caught molesting her when the mother arrived home unexpectedly, which aroused the mother’s suspicion and caused the father to allay her alarm. If that were true, one might reasonably expect the mother to have corroborated the incident, but she did not.

10. There was a compelling juxtaposition in the child’s demeanour during the interview in June 2011, just as there had been in her interview in June 2010. When she spoke about the father’s physical abuse of both her and the mother she offered contextual detail to enhance the credibility of her narrative and the level of her distress varied and correlated sensibly with her descriptions. By comparison, when she was asked to relate details about her alleged sexual abuse she did not exhibit any distress, her narrative was rather mechanical, and she could offer little in the way of contextual detail even when prompted.

11. Apart from the incredibility of L’s allegations, they also proved to be inherently unreliable. For example, she first informed police the incident in which the mother nearly caught the father out happened in the “plank house”,[31] but when checked with her several weeks later she said she thought it occurred in the “brick one”.[32] She also inconsistently told the police that during the act of sexual intercourse with the father she thought he remained clothed[33] but then later said he removed his clothes.[34]

    [31] Exhibit ICL3, transcript (page 69)

    [32] Exhibit ICL4, transcript (page 86)

    [33] Exhibit ICL3, transcript (page 67)

    [34] Exhibit ICL3, transcript (page 70)

12. The mother questioned L about the details of the alleged sexual abuse after she spoke with the police. The child reported to the mother that as the father was attempting to insert his penis into her vagina “that is all she can remember because everything went black”.[35] She said no such thing to the police, which explanation wears the plain appearance of convenient obfuscation. It evidently avoided the awkwardness of being unable to provide credible contextual detail.

    [35] Mother’s aff 6/7/11, para 38

13. The child informed police during her interview that she had been told by L and the mother that, not only had the father touched L’s “private parts”, but L had been forced to touch the father’s “private parts”.[36] L’s report of that event to the child was inconsistent with her reports to both the mother and police, which at no stage entailed her being forced or invited to touch the father’s genitals. The mother’s report of that event to the child was also inconsistent with her evidence of what L actually told her.

    [36] Exhibit ICL1, transcript (pages 115-116)

14. Despite such profound inconsistencies, in reliance upon the allegations made to police, the father was subsequently charged with sexual abuse of L in August 2011.[37]

    [37] Father’s aff 12/11/12, para 45; Exhibit ICL7; Mr S’s report, para 15

15. L’s last interview with police occurred in October 2011.[38] That further interview arose out of L being prompted by her counsellor to begin keeping a journal and her then making a journal entry to the effect that when she was three years of age the father made her dress in tight clothes that were not her own, applied make-up to her face, and made her do a “pole dance”.

    [38] Exhibit ICL5

16. Her purported belated recollection of such an event, which must have occurred some 10 years before, seems quite fanciful. She could not explain whose clothes she was dressed in. They could not have been the mother’s, since her adult clothes would not have been tight on her. They could not have been the child’s, because she was then only a baby. She could not explain what object was used as the pole in the dance, nor could she explain the manner in which she danced. L intriguingly felt the urge to volunteer to the interviewing police officer “I’m not making it up by the way”,[39] which tended to betray her appreciation of the scepticism that attended her allegation.

    [39] Exhibit ICL5, transcript (page 99)

17. Although the father was committed for trial on the charges relating to his alleged sexual abuse of L, the prosecutor elected to discontinue the prosecution in 2012. The only available inference is that the quality of the evidence was considered deficient,[40] but the discontinuance of the prosecution is meaningless so far as the father’s guilt or innocence is concerned. Relevantly for present purposes, this Court is able to evaluate the evidence to determine the veracity of the allegations on the balance of probabilities.

    [40] Mr S’s report, para 16

18. The inherent inconsistencies found both within and between L’s various allegations are too pronounced to accord any real weight to her disclosures. Ls inability to provide contextual details and her comparative lack of distress also deprives her allegations of weight. In all probability, she fabricated the allegations. That is the most plausible explanation for how her allegations became progressively more serious, despite the passage of time and the continuing absence of the father from her life. It is unnecessary to speculate about why she fabricated the allegations because the reasons could be many and varied and her possible motives were not the subject of any evidence.

19. Nevertheless, the mother holds an unshakable belief in the father’s sexual abuse of L, which she attributes wholly to L’s disclosures about, and demeanour towards, the father. That, however, is not a reliable foundation for her belief. Her disclosures are unreliable because of their inconsistency and her attitude towards the father was not always so contrary. According to the mother’s own admission to Mr F, L formerly called the father “Dad” and was “devastated” by the mother’s separation from him.[41]

    [41] First Family Report, para 31

20. Aside from the shortcomings of L’s allegations, the significance of other evidence should not be ignored.

21. Importantly, the father consistently denied any sexual abuse of L.[42] The Independent Children’s Lawyer challenged him in cross-examination about the alleged abuse and he stridently adhered to his denial. I accept his denial as truthful.

    [42] Father’s aff 9/11/10, para 11; Third Family Report, para 27

22. Mr S also reported on his consultation with the father which led him to conclude the father demonstrated no propensity for sexual deviancy, including sexual interest in children.[43] Neither the mother nor Independent Children’s Lawyer sought to challenge the validity of his conclusions.

    [43] Mr S’s report, paras 107-111

Alleged sexual abuse of the child

1. As the mother correctly recounted in her affidavit,[44] when she took L and the child to a counsellor in May 2010 the child divulged to the counsellor that she had been “touched” by the father in a sexually inappropriate way on one occasion.[45]

   [44] Mother’s aff 6/7/11, paras 35-36

   [45] Exhibit M1

2. However, as already noted, when the child was interviewed by police in July 2011 she squarely contradicted her earlier disclosure to the counsellor. She reported no sexual impropriety between her and the father, even when asked leading questions about it.[46]

   [46] Exhibit ICL1

3. At the commencement of the trial the mother expressly resiled from any direct allegation that the father had sexually abused the child. She must therefore accept either the veracity of the father’s denial, the unreliability of the child’s report to the counsellor in May 2010, or a combination of both.

4. The child’s propensity to tell lies is beyond dispute. She either falsely alleged the father’s sexual abuse to her counsellor in May 2010 or she falsely denied his sexual abuse to police in July 2011. The child also admitted to the mother she had previously lied for the father’s benefit.[47] That admission may itself have been a lie, but if it was not, it meant she had previously lied. Her evidence is therefore prone to unreliability.

   [47] Mother’s aff 6/7/11, para 49

5. The father denied any sexual abuse of the child.[48] Similarly, I accept his denial as truthful.

   [48] Father’s aff 9/11/10, para 11

Alleged physical abuse of Y

1. The allegation of the father’s physical abuse of Y is indisputably proven in respect of at least one incident.

2. In October 2011, the father was charged with a number of offences in relation to his past treatment of Y.[49] Although there was discrepancy between the versions of the subject incident given by the father and Y, the father admitted he hit Y with a belt. The criminal proceedings were finalised in March 2012 when, following charge-bargaining between the prosecution and defence, the father pleaded guilty to assaulting Y, for which he was sentenced to a good behaviour bond for a period of 12 months.[50] His denial to Ms C of having beaten Y was therefore false.[51]

   [49] Father’s aff 12/11/12, para 45; Exhibit ICL10

   [50] Father’s aff 12/11/12, para 48; Exhibit ICL6

   [51] Ms C’s report, para 45

3. However, the father’s physical abuse of Y was probably not limited to that solitary incident. In December 2009, Ms P attended a local police station with Y to report the father’s assault upon her and Y. The police observed Y to have a visible welt on his face adjacent to his eye socket. Ms P told police the father called Y a “fucking little black cunt” and punched him in the face with his fist, knocking him to the ground.[52]

   [52] Exhibit ICL9

4. The father admitted recollection of the incident, but denied he struck Y in the face. He could not, however, account for Y’s facial injury. I accept the father did assault the child on that occasion as alleged.

Alleged physical abuse of

1. The father admitted in cross-examination that he had disciplined L by striking her with his hand, with a wooden spoon, and on one occasion with a belt. He sought to characterise the incidents as legitimate corporal punishment, but that was a minimisation of his physical brutality towards a young child.

2. L’s descriptions to police in her various recorded interviews were compelling accounts of ruthless and pitiless domination. She recounted many incidents in which she had been hurt and scared witless. On one occasion a wooden spoon was broken by the force with which she was struck. On another occasion L was screaming in fear during the father’s assault of the mother, in response to which the father held a knife before her face and threatened to cut out her tongue if she did not be quiet. L sobbed breathlessly as she related those stories to the police in her interviews.

3. Even the father was moved by the authenticity of L’s accounts. He was impelled in cross-examination to admit she was obviously terrified of him, which must be due at least in part to the way in which he treated her. His perception of her terror was accurate. L’s counsellor reported that L was “clearly extremely afraid” of the father.[53]

   [53] Exhibit M1

1. However, as is the case with her allegations of sexual abuse, L made an allegation of physical abuse which is improbable. After she learned of the allegation that the father had bound Y by duct tape and beaten him, L then alleged to the mother the father had physically abused her in the same way.[54] L reported that the child witnessed her physical abuse in that fashion,[55] but the child did not corroborate L. An assault of that nature would likely be memorable, but in all of the child’s reports about the father’s physical abuse she said nothing of that particular incident of physical abuse alleged by L. Nevertheless, the improbability of that incident does not impair the credibility of L’s other allegations of physical abuse.

   [54] Mother’s aff 6/7/11, para 29

   [55] Affidavit of Nicole Power, para 17

2. Although L did not give evidence, it is not inapposite to accept some of her allegations and to reject others, just as it is not incongruous to selectively accept and reject parts of witnesses’ evidence. The court is at liberty to accept all, some, or none of the evidence given by a witness (Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155; McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 at 9).

Alleged physical abuse of the child

1. During her interview with police in July 2011, the child related only one frank incident of physical abuse, when she was kicked by father.[56] That occurred in November 2009 and was the reason the mother first suspended her visits with the father.[57] Her subsequent report to police was consistent with her earlier report to her counsellor in May 2010.[58]

   [56] Exhibit ICL1

   [57] Mother’s aff 6/7/11, para 21

   [58] Exhibit M1

2. The father conceded he did once kick the child “in the backside” after he was angered by her behaviour. Although he denied kicking the child hard, he was sufficiently embarrassed by his behaviour that he cried at his indiscretion.[59]

   [59] Father’s aff 9/11/10, paras 9-10

3. In all probability, the kick struck the child with considerably more force than the father was prepared to admit. She alleged in her police interview that the force of the blow knocked her into a tree, causing redness to her skin and her subsequent development of a bruise. It is unlikely the father would have been moved to tears unless the blow was unusually severe. In reality, it was an assault, not merely an incident of ordinary discipline.

Allegations of family violence

1. Family violence was undoubtedly a feature of the parties’ relationship. While the mother attributed the violent conduct solely to the father, he asserted it was mutual.

2. The mother alleged the father viciously assaulted her throughout their relationship by hitting her, biting her, spitting on her, choking her, and threatening her with knives. She alleged that such abusive behaviour escalated in frequency to a daily occurrence, which often occurred in the presence of L and the child, or at least while they were present in the house.[60]

   [60] Mother’s aff 6/7/11, paras 7-10

3. The mother’s evidence was largely corroborated by reports of both the child and L to their counsellor and the police.[61] Unfortunately, the child and L were exposed to many incidents of such family violence.

   [61] Exhibits M1, ICL1, ICL2, ICL3, ICL4, ICL5

4. By comparison with the corroborated evidence of the mother, the father’s evidence about his commission of family violence was unsatisfactory.

5. In his affidavit he flatly refuted all allegations of his abusive behaviour,[62] but then also admitted his self-defensive violent conduct. He deposed:[63]

   During our relationship, there was some domestic violence that we were both responsible for. I recall that on occasions, [the mother] would slap me in public and in front of my family, that she would throw objects at me and verbally abuse me. On some occasions, I had to physically restrain her to defend myself from harm.

   [62] Father’s aff 12/11/12, para 27

   [63] Father’s aff 21/11/12, paras 9, 87

6. The father’s evidence of acting violently only in self-defence was antithetical to his earlier discussions with the experts. He told Mr F he “slapped” the mother when she had been drinking or she angered him,[64] he told Ms C he “slapped” the mother when she “wouldn’t shut up”,[65] and he told Mr S he “slapped” the mother once during an argument.[66] Clearly, the father was an abusive domestic partner.

   [64] First Family Report, para 23

   [65] Ms C’s report, para 42

   [66] Mr S’s report, para 24

7. Significantly, the father’s violent conduct was not contained to the mother and their joint household. It extended to his subsequent partner, Ms P, who reported such violence directly to the mother and her sister.[67] The mother’s sister observed the father’s violent treatment of Ms P on one occasion and she herself experienced the father’s intimidation.[68] The father was even “somewhat hostile” with the expert Ms Cr[69] and demonstrated his labile mood to Mr G, vacillating between anger, frustration and despair.[70]

   [67] Mother’s aff 6/7/11, para 25; Affidavit of Ms O, para 15

   [68] Affidavit of Ms O, paras 12-14

   [69] Ms C’s report, para 65

   [70] Second Family Report, para 16

8. The inescapable conclusion is that violence and aggression was an integral feature of the father’s inter-personal relationships. Violence was used as a tool to control and dominate both adult and infant members of his household over many years, which obliged the father to finally admit that the mother was, and had good reason to be, frightened of him.

Best interests of child – primary considerations

Section 60CC(2)(a)

1. The litigation was conducted on the basis of an unspoken acceptance that the child enjoys a meaningful relationship with the mother which must be preserved.

2. That is undoubtedly true, but the nature of the child’s emotional bond with the mother made it very difficult to understand the mother’s decision for the child to live with Mr W in New Zealand and to see her so infrequently. After leaving the child with Mr W in April 2013 the mother only visited her twice for several days at a time, which must have caused the child emotional distress. She would have missed the mother and likely felt rejected or abandoned. Mr G described the mother’s insight in relation to that decision as “muted” and “blunted”, which although accurate, is the most benign description available.

3. The mother accepted she seriously miscalculated the ramifications of that decision and unequivocally asserted her present intention was to retain the child and L in her residence in south-east Queensland. Although she is hopeful Mr W and their two sons will move to Australia to join them, her current plans will not change even if they do not.

4. Ultimately, the father and the Independent Children’s Lawyer both accepted the child should live with the mother in south-east Queensland. That arrangement will promote the child’s meaningful relationship with the mother and enable her to derive the full measure of benefit from the relationship.

5. By comparison, the child’s relationship with the father must have deteriorated to some extent because of their physical separation. Other than for their brief re-introduction in the presence of Mr G on the first day of final hearing in October 2013, the child had not seen or spoken with the father since their brief interaction in the presence of Mr F in February 2011. The child last visited the father in late 2010 or early 2011 at a contact centre.

6. In February 2011, the child told Mr F she missed the father and members of the paternal family.[71] Mr F observed the child’s affection for the father, as they laughed, hugged and were bright and animated together.[72]

   [71] First Family Report, para 86

   [72] First Family Report, para 91

7. In October 2013, Mr G decided to re-introduce the child to the father, notwithstanding the mother’s opposition to any such reunion, since the child exhibited no reluctance. Despite the hiatus in their relationship, Mr G observed no awkwardness between them. The child was “very, very bright and open-faced” when she first saw the father. She smiled spontaneously and quickly engaged him in conversation about her growth, school, and her paternal cousins. The discussion was characterised by levity and humour.

8. Clearly, the child has managed to preserve her love and respect for the father despite the open antipathy the mother and L feel towards him. That aspect of the mother’s attitude will be elaborated as a defect in her parenting capacity pursuant to s 60CC(3) of the Act, but presently it is sufficient for the purposes of s 60CC(2)(a) to recognise that the child still does have a meaningful relationship with the father, even though the relationship is not as important to her as the relationship she enjoys with the mother.

9. The child would certainly derive benefit from continuation of her relationship with the father, but there are countervailing factors in the determination of whether the child should be permitted to pursue the relationship, the most important of which is the risk the father poses to the child by her subjection or exposure to abuse and family violence.

Section 60CC(2)(b)

1. The evidence does not permit any finding on the balance of probabilities that the father sexually abused either the child or L. Nor does the evidence reasonably permit a conclusion that the father poses an unacceptable risk of sexual abuse to the child, if they are able to rejuvenate their relationship. Those findings accord with the submissions of the Independent Children’s Lawyer.

2. In the past, albeit to varying degrees, the father was certainly physically abusive to the mother, the child, L, Y, and Ms P, all of whom were members of his household at one time or another.

3. The Independent Children’s Lawyer asserted that the father continued to pose an unacceptable risk to the child through her subjection or exposure to physical abuse and family violence, with which submission the mother clearly agreed. For his part, the father sought to explain that his past abusive behaviour was a character flaw from which he has now successfully rehabilitated.

4. Whether the child is at risk of physical or psychological harm through subjection or exposure by the father to physical abuse and family violence and, if so, the degree of such risk, requires assessment of several aspects of the evidence. The seriousness of the father’s past violent disposition, his acknowledgement of and acceptance of responsibility for it, his expression of genuine remorse, and his active attempts at attitudinal reform are all issues that bear upon the existence and the level of risk.

5. As already explained, the father’s aggression has been a feature of his inter-personal relationships for many years. Aside from his opprobrious treatment of adults and children with whom he shares domestic relationships, he has other criminal convictions for assaults, wilful damage, and public disorder.[73] His denial of those convictions to Mr G was inexplicably false.[74] Ms C was surely correct to observe the father had a “history of chaotic relationships characterised by domestic violence”, most probably caused by his “limited inter-personal problem solving skills”.[75]

   [73] Exhibit ICL6

   [74] Second Family Report, para 19

   [75] Ms C’s report, paras 40, 54, 72, 76

6. The father reported to the various experts that he regarded corporal punishment of children to be normal.[76] Similarly, when discussing the issue of family violence with the experts the father was generally dismissive of the adverse repercussions of such behaviour.[77] Even during cross-examination, the father demonstrated an alarming lack of insight into the deleterious psychological effects upon children of witnessing family violence. Unfortunately, the insight of the paternal grandmother seems no better developed. She informed Mr G that the father “treats his women like gold”,[78] which is a fanciful delusion. Neither paternal grandparent could conceptualise how the father’s past conduct could explain the mother’s loathing of him.[79]

   [76] Ms Cs report, paras 36, 59, 60, 81; Third Family Report, para 27

   [77] Ms C’s report, para 65

   [78] Second Family Report, para 23

   [79] Second Family Report, para 27

7. Irrespective, the father’s efforts at reform deserve acknowledgement. He undertook therapeutic counselling with Mr S,[80] and thereafter completed a MENDS group program,[81] which program apparently coaches insight and awareness to separated fathers. He continues to meet informally with other men who completed that program in a mutual support group. Mr S also reported in June 2013, without challenge, that the measures of the father’s capacity for anger management were “within the normal range”.[82]

   [80] Mr S’s report, para 7

   [81] Third Family Report, paras 16, 27

   [82] Mr S’s report, para 62

8. Additionally, the father’s involvement in this litigation, and in particular his confrontation in cross-examination with his past misdeeds, was certainly a chastening experience for him. The trial could not have left him in any doubt about the detrimental effects of his shameful past conduct.

9. I am drawn to the conclusion that the father’s insight has improved, but the extent of the improvement does not represent an epiphany. The available evidence does not rationally provide a sufficient basis for the father’s confidence that he poses no risk to the child at all. The chance that he will subject or expose her to physical abuse or family violence remains, but I am not satisfied that the risk is unacceptably high. It is a risk that is capable of management so as to preserve the child’s relationship with the father.

10. Lest it not be overlooked, it is necessary to mention that the child also remains at risk of exposure to family violence in the mother’s household. The mother separated from Mr W in about December 2012 and told Mr G the reason for the separation was Mr W’s violent treatment of her.[83] In cross-examination the mother admitted that his violence also occurred in the presence of the children and that “the relationship was no longer healthy”.

    [83] Second Family Report, para 43; Third Family Report, para 39

11. Objective facts bear out the mother’s impression, as a selection of incidents serve to exemplify. In December 2009 Mr W punched the mother in the mouth and chipped her teeth. In September 2010 an argument between the mother and Mr W became so heated the police were called to intercede and, although she was not struck, Mr W called her vile names and threatened to “cut her throat”.[84] In December 2011 the police were again summoned to the mother’s home following an argument in which Mr W threatened to “throw her over the balcony”.[85] Mr G said that, even now, the child was aware of simmering tension between the mother and Mr W over their suspected infidelities and their disagreement over whether their blended family will live in New Zealand or Australia.

    [84] Exhibit ICL11; Magellan Report 5/3/12, page 4

    [85] Exhibit ICL12

12. The mother unjustifiably idealises Mr W and harbours a firm desire to reconcile with him, believing he has rehabilitated, apparently because he has been having counselling since February 2013. He may have successfully rehabilitated to some extent, but in the absence of corroboration, the mother’s belief in his complete rehabilitation is insufficient to prove the fact.

13. The mother will have an ongoing relationship with Mr W, even if they do not resume cohabitation, because they will still need to communicate about their two children and organise exchange of those children between them. The prospect therefore remains of the child witnessing conflict between the mother and Mr W, which risk is heightened if they again cohabit.

Best interests of child – additional considerations

1. There was no dispute about either party’s capacity to meet the physical and intellectual needs of the child. Rather, the gravamen of the dispute was the ability of the parties to adequately cater to the child’s emotional need to enjoy healthy relationships with both parents. The evidence proved that both parties suffered impaired insight into the emotional needs of the child.

2. The mother reported the child expressed a desire not to see the father.[86] It is likely the child did so, because she also told Mr G in February 2013 she did not wish to meet with the father or paternal grandparents – even briefly. Instead she wrote them a note and asked that it be passed on to them.[87]

   [86] Second Family Report, para 43

   [87] Second Family Report, para 53

3. Of course, just because the child told the mother and Mr G she did not want to see the father does not mean she was truthful. In fact, the evidence points most reliably to the conclusion that she was untruthful and simply trying to manage the expectations of the mother and L.

4. I accept as correct the opinion expressed by Mr G that the child retains an “overall positive perception and/or experience of the bulk of her paternal family but…is ambivalent about having direct contact with them”.[88] The child really would like members of the paternal family in her life, as she told Mr G.[89] She simply realises she does not have the mother’s emotional permission for that to occur.

   [88] Second Family Report, para 60

   [89] Second Family Report, para 48

5. The child is acutely aware of the hatred held by the mother and L for the father. The child told Mr G “Mum can’t handle looking at [the father]”,[90] which was not mere hyperbole. The mother did not look at the father once for the duration of the final hearing, even when they were cross-examining one another. She could not bear to do so. The mother cajoled the child to adopt an identical approach, as the child revealed to Mr G that, on their way to Court, the mother told her “not to look at [the father]”.

   [90] Second Family Report, para 48

6. Both the mother and L have discussed with the child their allegations of abuse and violence against the father, leaving her in no doubt about the depth of their disdain of him. The mother admitted she involved the child in the conflict in that manner in order to explain to her why she no longer visited the father. The mother’s decision to actively involve the child in the conflict was a poor reflection on her parenting capacity, even though she may have reasonable grounds to personally dislike the father. Either she confused her own emotions with those of the child or she deliberately sought to transpose her own views to the child and contaminate the child’s emotional attachment to the father.

7. After the child was observed in the company of the father by Mr G and then re-united with the mother on the first day of hearing the mother asked the child “if she was OK”, which Mr G considered was perhaps a surreptitious way of the mother informing the child of her own distress rather than a genuine inquiry about the child’s feelings.

8. The mother’s enmity towards the father is immovably fixed. She referred to the father as a “monster”, both in discussions with Mr G[91] and during her final submissions to the Court. Her evidence was just as resolute. She made comments such as:

   [The father] has wrecked my eldest child.

   I don’t disbelieve the truth of what [L] has said for one moment.

   [The father] lost his rights as a father the day I found out what he did [to [L]].

   [The father] lost that right when [he] raped [L].

   My priority is to keep [the child] away from [the father].

   I will never change my view – never.

   [91] Second Family Report, para 44

9. She deposed in her affidavit:[92]

   I fail to see how [the father] has any positive input into [the child’s] life at present.

   [92] Mother’s aff 6/7/11, para 54

10. The expression of that sentiment explains why the mother seemingly desires Mr W’s substitution for the father as the paternal figure in the child’s life. The child is encouraged to call Mr W “Dad”, leaving the child confused as to how she should address the father. During her cross-examination the mother said:

    [Mr [W]] is the girls’ Dad. They understand him to be their father figure.

    The girls asked me if [Mr [W]] could be their father.

    [Mr [W]] doesn’t hurt children. [Mr [W]] doesn’t rape children.

1. The mother is strenuously opposed to any form of contact between the child and the father. Mr G explained how the child was worried about the mother’s attitude and reaction to her retention of any relationship with the father. The child is anxious for the mother rather than herself, which is a worrying symptom of their filial relationship, since children should not feel responsible for ensuring the emotional security of adult figures.

2. Similarly, L told Mr G she was opposed to any interaction between the child and the father.[93] The child’s perception of L’s feelings should not be underestimated as an influence. Mr G said the child and L enjoyed a close relationship. He was unsure whether the child believed L’s allegations of sexual assault against the father, but he was convinced the child felt responsible to support L emotionally and that their sibling relationship would be tested by any ongoing interaction between the child and the father.

   [93] Second Family Report, para 58

3. It was uncontentious that the mother and L had previously taken from the child gifts she had been given by the father, which Mr G opined would have sent a “powerful message” to the child.

4. The child would certainly be conscious of the adverse views held by the mother and L about the father. It is sheer fantasy for the mother to believe the child has not been inculcated with those views.[94]

   [94] Second Family Report, para 45

5. Mr F detected that the child had been strongly influenced by the mother’s disaffection for the father. As he pointed out, such a dynamic is “inherently divisive” and works to impair or even destroy the child’s relationship with the father.[95]

   [95] First Family Report, para 102

6. The child is obviously under extreme pressure within the mother’s household to reject the father. So far, she has been amazingly resilient to withstand the pressure and maintain a meaningful vestige of her relationship with the father. Unfortunately, the father lacks the insight to appreciate the child’s resilience and courage. He blithely considers the problem would be solved by the child simply ignoring the mother and boldly standing her ground about spending time with him.[96] His analysis of the situation is lamentably superficial.

   [96] Third Family Report, para 28

7. The future therefore entails, on the one hand, the child living with the mother and L, both of whom loathe the father and oppose the child having any interaction with him at all, and on the other, the father insistent upon an ordinarily regular regime of personal interaction between him and the child without any real understanding of the pressure that outcome would exert upon her. Such a predicament is almost insoluble.

8. It seems at least reasonably practicable for the child to spend time with the father because of the relative proximity between the parties’ households. The mother retains her principal place of residence in south-east Queensland. She owns a home at X, which she is able to occupy, and her sister lives nearby and is able to offer her at least temporary accommodation. The father continues to reside at M with the paternal grandparents.[97] The driving time between the parties’ households approximates one hour and both parties have driving licences and access to reliable vehicles.[98]

   [97] Father’s aff 12/11/12, paras 31, 51; Third Family Report, para 5

   [98] Father’s aff 12/11/12, paras 77-78; First Family Report, para 15

9. The father is from Country Z. His final submission was that the child needed to know of her Country Z heritage. Indeed, that is a consideration, even though not a skerrick of evidence was adduced about it. The issue was not raised until literally the last words of final submissions, almost as an after-thought. The orders seek to preserve the child’s relationship with the father in at least a rudimentary form so the child will not be denied of the opportunity to learn of her cultural heritage from the father, although the opportunities will be infrequent.

Conclusions and orders

1. The presumption of equal shared parental responsibility does not apply because there are reasonable grounds to believe the father engaged in child abuse and family violence (s 61DA(2)).

2. The question therefore arises as to whether equal shared parental responsibility should be allocated to the parties, albeit not presumptively, or whether one party should have sole parental responsibility.

3. The parties have not spoken since the mother accused the father of sexual abuse in mid 2010.[99] Despite the father’s desire to share parental responsibility for the child, that has not occurred for more than three years. Without recourse to the father, the mother sought significant medical treatment for the child,[100] procured a passport for her,[101] and caused her to depart the country,[102] which it should be noted was probably unlawful (ss 65Y, 65Z).

   [99] First Family Report, paras 18, 26

   [100] Exhibit ICL8

   [101] Exhibit ICL15

   [102] Exhibit ICL14

4. Mr S considered the parties’ capacity to “co-parent” the child was “seriously damaged” because they had lost reciprocal trust and any motivation for communication,[103] with which opinion the Independent Children’s Lawyer agreed.

   [103] Mr S’s report, para 115

5. In the face of that history and Mr S’s unchallenged opinion, there is no realistic prospect of the parties conferring courteously and constructively over issues of significance in the child’s life, as would be required of them if equal shared parental responsibility was allocated (s 65DAC). Although the father might be prepared to consult with the mother, her antipathy towards him is too entrenched to enable her to reciprocate. Her antipathy is not feigned for tactical purposes. It is genuine and deeply ingrained.

6. There is no feasible option but to allocate sole parental responsibility to one party. It follows that parental responsibility should be allocated to the party with whom the child lives, and that will necessarily be the mother.

7. The father knows the child is well cared for by the mother. He told Mr F “I know she’s a good mother”.[104] The paternal grandparents also told Mr S the mother was “a very good mother”.[105] The father’s proposal was really for re-establishment of his relationship with the child rather than her residence with him.[106] He has never demonstrated any commitment to assume her residential care, regardless of the mother’s overt opposition to any form of interaction between him and the child.

   [104] First Family Report, para 28

   [105] Mr S’s report, para 93

   [106] Father’s aff 12/11/12, paras 61, 74

8. Retention of the child’s residence with the mother was the outcome recommended by Mr G, because it was more congruent with the child’s greater attachment to and dependence upon the mother.[107] His recommendation was not changed by his discussions with the mother and child on the first day of trial. Such an outcome is also consistent with the proposal of the Independent Children’s Lawyer.

   [107] Third Family Report, para 59

9. The orders therefore provide for the child to live with the mother. The vexed issue is the nature of the child’s future interaction with the father.

10. The father proposed a graduating parenting regime under which the child would incrementally adapt to spending substantial and significant time with him (s 65DAA(3)). Even if it is reasonably practicable to implement such a regime by reason of the relative proximity of the parties’ households, the evidence does not support a conclusion that such an outcome is in the child’s best interests.

11. Orders of that sort would perpetuate and even exacerbate the child’s anxiety because she would remain the epicentre of the parties’ conflict. Within the mother’s home she would be constantly immersed in an atmosphere of opposition to her ongoing relationship with the father, which she would feel obliged to resist in order to manage the father’s expectations of a normal filial relationship with her. The burden upon her would be intolerable.

12. In order to serve the child’s best interests, a much more contained regime of interaction between the child and the father must be implemented so as to abate the overt hostility of the mother and L, reduce the pressure they openly or implicitly exert upon the child, and relieve the child of the responsibility she feels to placate the conflicting desires of her parents and sister.

13. The mother pressed for a complete embargo on any interaction at all between the child and the father, but the evidence does not support that outcome either. As the father ably observed during final submissions, such an outcome may lead the child to think he had “given up on her”, which would be disadvantageous. The child’s best interests are served by her retention of some form of relationship with the father.

14. There could be little doubt the mother now wants the father “out of the picture completely”, as she previously admitted to Ms P.[108] However, while that may be her desire, it is not representative of her belief about what is best for the child. She formerly admitted to Mr F the child would benefit from spending at least supervised time with the father,[109] and that the child enjoyed spending time with the father.[110] She also deposed the child “feels much better” seeing the father at a contact centre,[111] which inferentially also made the mother feel better. The mother did not explain, and could not reasonably have explained, the dichotomy between her desire and her belief about the child’s best interests.

    [108] First Family Report, para 60

    [109] First Family Report, para 43

    [110] First Family Report, para 48

    [111] Mother’s aff 6/7/11, para 58

15. The Independent Children’s Lawyer’s solution to the problem was to require the child to spend supervised time with the father at a contact centre for two hours each fortnight, although she acknowledged such an indefinite regime was liable to fail and was therefore open to alternative ideas.

16. Mr G initially recommended an outcome under which the child had “no or limited and conditional time and contact with [the] father”,[112] and the “limited and conditional time” he contemplated was, for example, “monthly or quarterly” visits at a contact centre.[113] After conferring with the mother and child and observing the child in the company of the father, Mr G did not advocate for an absolute embargo upon the child’s interaction with the father, but he maintained the child should only spend supervised time with the father at a contact centre. He offered several reasons for that conclusion, but pre-eminently it was because of the child’s acute sensitivity to the mother’s feelings, which would make it extremely challenging for her to deal with the mother’s unconstrained angst.

    [112] Third Family Report, para 59

    [113] Second Family Report, page 23

17. Visits between the child and father at a contact centre serves multiple purposes: to attenuate the residual risk of the father’s subjection or exposure of the child to physical abuse or family violence, to ameliorate the mother’s concern about the child’s safety, and to relieve the child of at least some of the pressure she feels from the mother and L to reject the father.

18. Once the conclusion is reached that the child’s interests are best served by her only interacting with the father in the contained environment of a contact centre, the next question to be addressed is the frequency of visits.

19. As Mr F opined much earlier in the proceedings, a “structure of long term supervision does little to maintain meaningful relationships between a child and a parent”.[114] Such a conclusion is logical. In fact, such a regime is likely to inhibit meaningful relationships. The law has long recognised that the imposition of long-term or indefinite supervision of the time spent by a child with a parent is generally undesirable (see Moose v Moose (2008) FLC 93-375 at [119]; H & K [2001] FamCA 687 at [40-41]; Marriage of Bieganski (1993) 16 Fam LR 353 at 368).

    [114] First Family Report, para 95

20. There is, however, a difference between indefinite supervision of visits that occur only occasionally and visits that occur frequently.

21. The proposal of the Independent Children’s Lawyer for indefinite supervision of fortnightly visits is rejected. Both the child and father would soon grow frustrated by and resentful of the confinement of their interaction to a contact centre with that degree of frequency.

22. The competing considerations demand that the child’s interaction with the father should be much less frequent. The ultimate objectives to be attained are maintenance of the vestige of the child’s meaningful relationship with the father and reduction of the child’s anxiety about her maintenance of that relationship. Those objectives can be mutually achieved by the child spending time with the father only quite infrequently, such as once every six months. Despite not spending any time with the father for nearly the last three years, the child remembered her adoration of the father. Her relationship with him resumed relatively seamlessly when she was re-introduced to him by Mr G in October 2013. Now that she is 12 years of age she will cope with extended absences from the father and her participation in only occasional, but regular, visits with him will enable her to refresh her relationship with him. Once she attains her majority she will then be able to decide for herself which filial relationships she chooses to pursue.

23. The contact centre chosen for that purpose is the contact centre nominated by the Independent Children’s Lawyer,[115] which is presumably the same contact centre nominated in the previous interim orders made in July 2013.[116] The orders make provision for that contact centre to nominate another supervisor for the parties’ use if circumstances require.

    [115] Exhibit ICL16, Order 4

    [116] Order 6 made on 11 July 2013

24. The orders for the child to spend occasional supervised time with the father at a contact centre are supplemented by an injunction precluding the father from attending at or near the mother’s home or the child’s school. Such an injunction will preclude the father’s frustration of the orders by attempting to see the child away from the contact centre at other times. The Independent Children’s Lawyer adopted that idea during final submissions.

25. The Independent Children’s Lawyer proposed an additional injunction restraining the mother from establishing the child’s place of residence “outside of south east Queensland”.[117] No such order is made because it is entirely unnecessary. It is an offence for the mother to remove the child from Australia without the father’s written consent or a Court order (s 65Y). The orders already stipulate how and when the child will spend time and communicate with the father. The mother’s compliance with those orders is obligatory, wherever she chooses to live with the child within Australia. If the mother unlawfully decamps to New Zealand with the child the orders are enforceable by application in reliance upon the Trans-Tasman Proceedings Act 2010 (Cth) and the Trans-Tasman Proceedings Act 2010 (NZ).

    [117] Exhibit ICL16, Order 8

26. Although the Court has power to make injunctive orders in respect of a child (s 68B), including as to the place where the child must live, the Court should only make such an order cautiously (see Cales & Cales (2010) FLC 93-459 at [74]-[91]). That is because the parent with whom the child lives enjoys as much residential freedom as is compatible with their obligations pertaining to the child (see AMS v AIF (1999) 199 CLR 160 at 196, 206, 207-208, 210, 223-224, 231-232; Sampson v Hartnett (No.10) (2007) FLC 93-350). Only when the welfare of the child would be adversely affected should a parent’s right of freedom of mobility defer to the paramount consideration of the child’s best interests (see U v U (2002) 211 CLR 238 at 262).

27. Since the orders will no doubt be a disappointment to both parties and the child is ordinarily unlikely to hear of the result of this litigation from anyone other than the mother, who may convey distorted views to her, the orders require the mother to present the child to the Independent Children’s Lawyer for an independent explanation of the orders, and if thought appropriate, the reasons for the orders.

28. The father will no doubt be distressed by his marginalisation in the child’s life, but he needs to be reminded the law requires the child’s interests to be given paramount importance. His understandable desire to see much more of her necessarily yields to the child’s best interests. So as to help abate his distress at such an outcome, the orders compel the mother to notify the father of the school the child attends and to authorise the principal of the child’s school to provide the child’s school reports and school photographs to the father at his expense. An order of that type is consistent with the Independent Children’s Lawyer’s proposal.[118]

    [118] Exhibit ICL16, Orders 5(d), 7

29. As an additional measure, the orders allow the father to correspond with the child for her birthday and at Christmas. The Independent Children’s Lawyer was inclined to embrace that idea during final submissions. The orders compel the mother to acknowledge receipt of the father’s correspondence. In that way, if the mother fails to pass the father’s correspondence on to the child, the father will have a record of his attempts at correspondence with her to prove he did not abandon or reject her.

30. The orders require the parties to keep one another informed of their mobile telephone number and email address. That does not exhort the parties to communicate with each other. It simply keeps open an avenue of communication, should their communication be necessary, and electronic communication in either of those two forms will create a preserved record of their correspondence. That will be both a disincentive to rancour and a form of evidence if it ever be needed.

31. There is no need for the father to know the residential address of the mother and the child, as the Independent Children’s Lawyer proposed,[119] when the father knows how to contact the mother electronically in the event of an emergency and will see the child periodically. Not having to divulge her residential address will be a comfort to the mother. The father may learn of their address through school documents or discussion with the child at their visits, but the injunction still operates to preclude his attendance at their home.

    [119] Exhibit ICL16, Order 5(a)

32. The orders require the mother to inform the father of any medical emergency, illness or injury suffered by the child and to authorise any treating health professionals to communicate with the father about the child’s condition and treatment, consistently with the order proposed by the Independent Children’s Lawyer.[120] Such an order is necessary because the mother has sole parental responsibility for the child and would not otherwise be obliged to do so.

    [120] Exhibit ICL16, Orders 5(b), 5(c), 6

33. In view of the mother’s apparent propensity to substitute Mr W for the father as the paternal figure in the child’s life, an order is made requiring the parties to retain the father’s surname as the child’s surname. That will help to preserve her paternal link to the father.

I certify that the preceding one hundred and seventy-two (172) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 28 November 2013.

Associate: 

Date:  28 November 2013