Kingsford and Drysdale

[2016] FamCA 190

FAMILY COURT OF AUSTRALIA

KINGSFORD & DRYSDALE [2016] FamCA 190

FAMILY LAW – PARENTING – equal shared parental responsibility – equal time – separation of siblings – where the Independent Children’s Law urges five night per fortnight – discussion about home base need for consistency – very poor presentation of evidence by parties – allegations of sexual abuse – concerns about father’s capacity in terms of time to commit to parenting – poor relationship between parents – best interests determined – equal time ordered but with a delayed start to allow child to adjust.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

M v M (1988) 166 CLR 69

APPLICANT: Ms Kingsford

RESPONDENT: Mr Drysdale

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 9236 of 2012

DATE DELIVERED: 30 March 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 15, 16, 17 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Weiner

SOLICITOR FOR THE APPLICANT: Sullivan Braham Pty Ltd

COUNSEL FOR THE RESPONDENT: Mr Mcleod

SOLICITOR FOR THE RESPONDENT: Joe Mamone Lawyer

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Allen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: O'Halloran Drysdale

Orders

1. All existing parenting orders are forthwith discharged save those orders for the school holidays for the end of term 1 in 2016 which shall continue for those holidays only.

2. That the father and the mother have equal shared parental responsibility for their child B (the child) born … 2011.

3. That from the commencement of term 2 of the 2016 school year, the child live with the parents during the school terms as follows:

   (a)      WITH THE FATHER, from 3.15 pm or the conclusion of school on Friday to 9 am or the commencement of school on the following Tuesday during the following periods:

   Friday 15 April to Tuesday 19 April;

   Friday 29 April to Tuesday 3 May;

   Friday 13 May to Tuesday 17 May;

   Friday 27 May to Tuesday 31 May;

   Friday 10 June to Tuesday 14 June;

   Friday 24 June to Tuesday 28 June;

   Friday 8 July to Tuesday 12 July; and

   WITH THE MOTHER at all other times.

   (b)That from term 3 of the 2016 school year from 3.15 pm or the conclusion of school on Thursday to 9 am or the commencement of school on the following Tuesday during the following periods:

   Thursday 21 July to Tuesday 26 July;

   Thursday 4 August to Tuesday 9 August;

   Thursday 18 August to Tuesday 23 August;

   Thursday 1 September to Tuesday 6 September;

   Thursday 15 September to Tuesday 20 September;

   Thursday 29 September to Tuesday 4 October; and

   WITH THE MOTHER, at all other times.

   (c)From the commencement of term 4 of the 2016 school year and specifically from Friday 7 October 2016 and thereafter, on a week-about basis as follows:

   (i)WITH THE FATHER, from the commencement of the first day of the school term until the conclusion of school on the following Friday and for a period of a week from Friday to Friday every second week thereafter; and

   (ii)WITH THE MOTHER, from the conclusion of school on the first Friday to the conclusion of school on the following Friday and for a period of a week from Friday to Friday every second week thereafter.

4. That until the parties agree otherwise, paragraph (3) of these orders applies in any school holidays (including the long summer holidays).

5. That until the parties agree otherwise, the child live with each of the parents during the long summer holidays in each year commencing with the holidays that commence in December 2016 on the week about basis referred to in paragraph (3).

6. Paragraphs (3) and (5) do not apply to the period from 4 pm on 24 December until 8 pm on 26 December in any year.

7. For the period from 4 pm on 24 December until 8 pm on 26 December in each year, the child spend time with the parents as follows:

   (a)In 2016 and for a similar period in every second year thereafter, from 4 pm on 24 December to 1 pm on 25 December with the father; and

   (b)In 2016 and for a similar period in every second year thereafter, from 1 pm on 25 December to 8 pm on 26 December with the mother;

   (c)In 2017 and for a similar period in every second year thereafter, from 4 pm on 24 December to 1 pm on 25 December with the mother; and

   (d)In 2017 and for a similar period in every second year thereafter, from 1 pm on 25 December to 8 pm on 26 December with the father.

8. For the purposes of changeovers which do not occur at school, the parent whose time begins shall collect the child from the other parent.

9. When an appointment is allocated for the child by his designated health professionals, the parent responsible for the care of the child at that time shall take him to that appointment.

10. That both parents shall cooperate with the implementation of any program and treatment required by a designated health professional for the child.

11. That even though the child may not be in a parent’s care at the time of any health professional appointment, the other parent shall be entitled to be present and participate in any such attendance ALWAYS SUBJECT TO the directions of the individual health provider who may exclude such a parent if he or she considers it is not in the child’s best interests for the parent to be involved. If such exclusion occurs, the excluded parent shall still be entitled to all necessary information about the treatment or program and still has the obligation to implement it.

12. That by virtue of having equal shared parental responsibility, both parents are at liberty to attend all school events and functions at which a parent would normally be entitled to attend UNLESS THE PRINCIPAL determines otherwise but at all times, both parents are entitled to all relevant information about the child and his educational progress.

13. The Independent Children’s Lawyer is requested to provide a copy of this order to each of the nominated health professionals and the child’s school principal.

14. The Independent Children’s Lawyer is requested to provide a copy of this order and the reasons for judgment this day to Dr C and is otherwise thereafter discharged.

15. That all applications are otherwise dismissed.

16. That pursuant to s.65DA(2) and s.62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kingsford & Drysdale 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 MELBOURNE

FILE NUMBER: MLC 9236  of 2012

Ms Kingsford

Applicant

And

Mr Drysdale

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. In 2012, proceedings between Ms Kingsford (“the mother”) and Mr Drysdale (“the father”) began over the father’s time with the child B.  The child was born in 2011.  The relationship of the parents had existed for just over a year when it came to an end.  the child was about nine months old.  Litigation has ensued ever since in one form or another.

2. Invariably so it seems, regardless of what positions the parents adopted in the litigation or what orders the Court has made, the relationship between the father and the child had, until recently, remained problematic.  Why that was so is explored in these reasons.  Suffice to say, the focus of this Court’s attention is on what is in the best interest of the child and it would seem that a shared arrangement meets criterion.

The final positions of the parties

1. The Independent Children’s Lawyer proposed that the child live with the mother and spend time with the father on each alternate week from Friday through to Tuesday and then, in the other week, overnight from Tuesday through to Wednesday morning.  The Independent Children’s Lawyer then proposed that over the summer school holidays, there should be a week-about arrangement.

2. The father’s position was that the child should either live in his care or, practically having regard to the position that he had adopted throughout the trial, on an equal shared time basis.

3. The mother’s position was that the child should live with her and spend four nights per fortnight with the father being, in the first week, from Friday through to the Monday and in the second week, from Wednesday through to the Thursday. 

4. When the issues of the complexity are considered in this case, it will be necessary to canvass questions of conditions to be imposed on both parties.  For the purposes of defining the nature of the parenting dispute, the proposals if each as set out above, is a good starting point.

5. For reasons which follow and perhaps contrary to the views of the single expert family consultant in this case, I consider that it is in the best interests of the child that there be a week-about arrangement immediately.

Some background

1. The father is 49 years of age.  He is currently unemployed as (at the moment) a part-time public servant.  During this hearing, he began moving residence from D Town to E Town.  In both cases, his accommodation is (and was) rented.  His income is modest.  His parents live in the D Town area.

2. The mother is 35 years of age.  She has a tragic background.  She was in a relationship with Mr F who is aged 53 years and to whom she had two children G now aged ten, and H, now aged 8 years.  After the conclusion of the Mr F relationship, the mother had the relationship with the father and the child was born.  When that relationship ended, the mother took over the role of full-time carer of her former partner Mr F.  He is also (apparently) her carer.  Mr F has a significant heart condition and is terminally ill.  He has about two or five years to live but it is conceivable that with the problems of his heart, his life could end very quickly.

3. The mother described Mr F as her “best friend”.  They are not in an intimate relationship.

4. A conscious decision was made by the mother or, as she would have it, by her lawyers, not to provide any evidence from Mr F.  That forensic decision was apparently something to do with Mr F not being able to face the stress of the hearing but it is a significant weakness in the evidence presented by the mother.  That weakness was overcome by the father’s own evidence that Mr F and he get along reasonably well and nothing I heard suggested that Mr F is any longer a threat to the child and his own two children.  That was not always apparently the case. 

5. On the subject of evidence, it must be observed that there was equally little, if any, evidence about G and H.  That too was a significant weakness in the mother’s case because the child is a sibling and even on the mother’s case, there was proposed contact time absent from his siblings.  The best evidence about separation from siblings came from the family consultant but even that was conjecture.

6. The mother has what was described by her as “mental health issues” such as to warrant her having a disability advocate to press issues such as those that she and Mr F have with Centrelink and other government departments.  The mother chose (for reasons that still remain obscure) not to call the advocate as a witness.  Because the advocate had heard a statement from the child which “shocked” him (his word) about the child being sexually abused by the father, the Independent Children’s Lawyer required the advocate’s attendance under subpoena.

7. The mother described her own memory as poor as a result of what she had experienced.  Her reliability as a witness was questionable.  She had, in 2007 or 2008, what she described as a “psychotic episode” and as a consequence, she was hospitalised and was institutionally cared for over a year long period. 

8. It will be self-evident that the mother had given birth to G and H by the time of her psychotic episode and (again in her words) she signed those two children over to Mr F.

9. In the midst of all of this confusion, were allegations of sexual impropriety made against the father.  The mother’s position in relation to those allegations was unsatisfactorily unclear.  Other allegations involved Mr F but to delve into them only compounds the confusion.  Suffice to say, the mother did make allegations of sexual impropriety against Mr F but later accepted that they were not with any foundation and importantly, all allegations of impropriety appear to stem from the mother’s mental health issues.  It would seem that of late, no such allegations have been made but it was unashamedly a concern of the father that as soon as these proceedings are over, they may start again.

The state of the evidence

1. The confusion in this case predominantly arises because of the state of the evidence.  Notwithstanding orders were made for one trial affidavit by each party, both practitioners sought to rely on an affidavit each filed in March 2015.  Even so, the paucity of the evidence about the abuse issue required the Court to trawl through facts drawn from other sources.  The Court expects better assistance.  Having said that, counsel for the parties and counsel for the Independent Children’s Lawyer did a valiant job in trying to get to the bottom of issues.

The themes

1. In essence, in determining what time each parent should care for the child, three themes emerge. 

   ·First, what was the state of the mother’s ability to care for the child?

   ·Secondly, was there an unacceptable risk of harm to the child in the father’s care? And,

   ·How could the father care for the child for any significant period if he still had significant commitments to public service?

   For reasons that will appear shortly, it is best to deal with those themes or issues sequentially.

The court’s involvement  

1. As indicated earlier, there was litigation not long after the parties separated.  That was in the Federal Circuit Court.  In September 2013, and with all parties legally represented, final orders were made to which the parties consented.  The Court’s role appears to have been minimal.  Orders were made that (in essence):

   ·    The parties have equal shared responsibility for the child;

   ·    B reside with the mother;

   ·    B have contact with the father during each alternate week from 12 noon on Thursday to 12 noon on the following Tuesday and during the week about arrangement during the school holidays; and

   ·    That the father’s communication by telephone with the child be each Monday, Tuesday and Thursday from 9.30am to 10.30am.

2. What ought be immediately apparent is that at the time those orders were made, the child was 2½ years of age.  No-one in this hearing suggested that that lengthy period of time away from his primary carer was a problem nor that telephone communication three days per week was inappropriate bearing in mind his language and comprehension skills.

3. The fundamental sharing structures under these orders also provided for:

   ·    Changeover of the child between the parents at I Town on one trip and J Town on the other;

   ·    The mother maintaining contact with the I Town Community Mental Health Centre; and

   ·    The mother following directions of a specified doctor and psychologist (both of whom were named as being in the I Town area).

4. The orders of September 2013 provided for the solicitors to advise those health professionals of what role the Court expected of them.  There can be no doubt about two things.  First, the mother’s mental health situation was clearly an issue of concern.  Secondly, the I Town area was where the mother was to be monitored. Such was the former concern that three other orders were also made.  They were:

   (a)each party shall have liberty to apply on short notice to the chambers of (the named judge in the Federal Circuit Court) in the event the mother suffers a relapse in her mental health – and I interpolate here, these were final orders;

   (b)the mother shall maintain contact with I Town Community Mental Health Centre on a six monthly basis for the purpose of monitoring her mental health, and mental health review and shall authorise and request her medical Practitioner to liaison directly with the Father in the event there is a decline in her mental health that would have an impact on her ability to provide on-going care for the child; and

   (c)the mother shall undergo a supervised urine drug screen every three months and shall provide the results thereof to the Father and her treating doctor within 14 days on each occasion.

5. The intrigue arising from the interpretation of those orders does not end there.

6. Paragraph [5] of the orders read:

   The mother be and hereby is restrained by injunction from leaving the child in the unsupervised care of [Mr F].

7. The evidence is that Mr F lived next door to the mother in I Town (notwithstanding that their relationship had come to an end) but that he now lives with the mother and as earlier indicated, each is the carer for the other.  In her evidence, the mother maintained that she does not leave the children alone with Mr F. 

8. In her evidence, the mother maintained that in September 2013, notwithstanding the preciseness of the orders to which I have just referred, everyone knew she was leaving I Town.  When pressed, the mother said her lawyer did not want anyone to know about her moving.  She acknowledged she entered into the final arrangement knowing the conditions could not be fulfilled.  She then added that the father knew she was about to move.  But, (apparently) so did Mr F because he moved too.

9. In her affidavit of evidence which was unchallenged, the mother’s evidence was that she moved for two reasons.  First, Mr F had a best friend in E Town so they decided to move there to be closer to his best friend.  Secondly, it was said that G was struggling at school and being bullied so a fresh start sounded like a good idea. 

10. The import of all of that was that the mother would have the Court accept that there was a planned move and everyone knew it including the lawyers but not the Court.

11. What is disconcerting however, in the face of what the mother would have the Court accept was a cooperative arrangement, the Department of Human Services evidence recorded that only days after the final orders were made, the mother presented the child to a doctor with a rash on his bottom and back.  The report said:

    The doctor reportedly told the mother that the rash was caused by an STD and was caused by semen.  It was also alleged that the child tries to play with everyone’s private parts and when told “No” reportedly says “Daddy does”.

12. The Department investigated that matter and rejected the mother’s hypothesis and her concern.  As the Department’s report noted, the official diagnosis was:

    Molluscum contagiosum  

    One may well ask if things were so cooperative, why were there concerns about sexual impropriety only days after the orders to which I have just referred.  

13. As to the injunction relating to Mr F, the mother said it was “removed” by another court which had something to do with an intervention order.  No details were in evidence about that intervention order.  Some sort of state intervention had occurred but exactly who (if ever) discharged the injunction, remains unsaid.

14. When the father gave evidence, he denied he knew in advance about the move by the mother away from I Town.  At that stage, he was living some hours away and hence the meeting place was in J Town for the changeover.  The father said when he found out, he contacted his lawyer who pointed out the restrictive nature of the order made in September 2013 and advised that the mother just could not move.  He said that a letter was written to her to that effect.  He then said the mother directly contacted him and as a result of their respective negotiations, they reached agreement that she could move; and she did in September 2013.

1. The difficulty with this particular move to E Town was that the order provided for the father to have five nights out of every 14.  He said that the move did not affect that but what then entailed was a two hour drive.  I repeat again that the child was not then three years of age.  Despite counsel pressing the father to concede that the arrangement did not work thereafter, the father was adamant that it did at least until October 2014 when everything fell apart and months went by without him seeing the child.

2. The father’s evidence about the I Town move to E Town is more plausible and I prefer his version.  But rather than doubt the credibility of the mother, what this evidence shows is that her memory is poor as to specific facts.  That becomes relevant on the question of the sexual abuse issues. 

3. To compound the problem of the court orders being final and intending to give security and certainty to the child’s life, it seems that both parents adopted a view that they could alter them when it suited them.  Indeed, paragraph 3(e) of those final orders read:

   That the child shall spend time and communicate with the Father as follows:

   …

   (e)at such further and other times as may be agreed between the parties.

   Whilst that did (and should) permit the parents to vary arrangements which they have put in place for their children, it makes a farce of orders where the parties (or one of them) had no intention of complying in circumstances where the concerns for the child were as serious as they were here.  In the father’s case, he did not seek to take the matter back to court.  The father’s time after the initial move to E Town seems to have been interrupted from time to time by his public service obligations but otherwise, there is no evidence to suggest that the arrangement did not work successfully.  Indeed, to the family consultant, and to the Court, the father maintained the “system” had let him down yet (including the issues about his absence in public service to which I turn below) he went along with the arrangements proposed by the mother including his association with Mr F.  As is clear, the mother was not restrained from associating with Mr F but rather leaving the children alone with him.  Nothing in the father’s evidence has indicated he had any concern about that order any longer and it should now be discharged.

4. Indeed, the evidence of the father, and to an extent supported by the mother, is that the father and Mr F communicate civilly.

5. In respect of the orders referred to in paragraph 22(c) above, the mother brushed the compliance aside by saying that she gave one screen but could not remember any details.  Curiously, that order was (on its face) to last for many years; the father took no steps to enforce it.

6. Paragraph 6 of the orders required the mother to authorise the father to have access to her medical practitioners.  He has not done anything about that.  When cross-examined about the names of various professionals attending to the child, the father adopted an unusual stance.  He said the mother had not told him their names.  He said he could not find out.  He said his lawyer had not got answers for him.  Despite that, when asked whether he would contact the child’s paediatrician, he said he would, if ordered to do so.  He then gave a loquacious explanation that he would go to the health professionals to get information but not to answer their questions.  That problem seems to stem from his suspicion that he will be accused of sexual impropriety.  Indeed, there is some substance to his concern. 

7. B attends a Dr C. Here, the Court had to resort to the evidence of the Department of Health and Human Services (admitted by virtue of s 69ZW of the Family Law Act 1975 (Cth) (“the Act”)) as the mother provided no evidence from Dr C at all. The Department file (bearing in mind its accuracy is unclear) said that:

   [Dr C] provided that he had learned from the mother that the Court had authorised contact between the child and his father to occur, and he had subsequently advised the mother that it was his understanding that the ombudsman or child commissioner had authority to overrule a Family Court decision, in this case.  [Dr C] had advised the mother to request intervention by the ombudsman to prevent the father’s contact with the child.  [Dr C] was provided advice by child protection that this was not correct and [Dr C] advised that he would contact the mother to clarify the information provided…[Dr C] stated that there was a background of alleged history of child abuse towards the child from his biological father, and further that the child had been behaving in a violent and angry manner at home.  [Dr C] stated that the mother had advised him that [the child] had previously disclosed to her having been asked to perform fellatio towards his father and of the father performing fellatio towards [the child].

8. The only inference that one could draw from that material is that if Dr C has made those statements, he has, at best, reservations about the father, and at worst, a preconceived notion of the father’s propensity to sexual impropriety and violence.  I can well understand therefore why the father would be reticent to be involved with Dr C.  As I indicated in final discussion with counsel however, my view is that Dr C has a very significant role in the child’s life as his psychologist and in the circumstances, the father needs to be involved and these gentlemen need to sort out their personal relationship.  I propose to permit these reasons to be read by Dr C to indicate that the Court has no concern about any impropriety or violence on the part of the father such as would justify a conclusion of unacceptable risk.

9. A serious concern in this case is whether or not orders made by a court designed specifically to protect the child from harm, will be followed.  If the mother’s view about what happened in I Town is correct, the Court can have little confidence.  Against that however, the father has now moved to E Town which is significant in his life bearing in mind he will be absent from his parents but also, his involvement in public service will be significantly more difficult.

The unchallenged evidence

The father’s parents

1. The father’s parents live in D Town.  The principal affidavit was provided by the paternal grandmother.  She said that she and the grandfather had a close “bond” with the child.  Curiously, the affidavit said that she and the grandfather were “cognizant of our son [Mr Drysdale’s] [public service] commitments”.  The affidavit went on to say that as a consequence of their awareness, they were willing to care for the child if the father was absent from home because of the public service commitments.  The affidavit did not say any more about how long those commitments were or what their role as “carers” would mean.  In his February 2016 affidavit, the father said:

   [56]That I have been nominated to attend a special oversees (sic) training mission in 2017.

   ]56.1]This will require me to attend special training course commencing on 14 March 2016.

   [56.2]As at the time of swearing this affidavit I am not in a position to confirm the actual dates.

   [56.3]I expect to be notified towards the end of February 2016 or early March 2016.

   In the context of the grandparents swearing the affidavit to which I have earlier referred only the day before the father’s trial affidavit was sworn, one must conclude that they were aware that the father had applied for this overseas mission for 2017.  They went on to say:

   [10]That if [Mr Drysdale] and [the child] were living together in [D Town], we would be available at any time to care for [the child] as necessary.

   [11]If [Mr Drysdale] and [the child] were living together in [E Town], we would be available to care for the child over any weekend or extended period.

2. The glaring omission of any detail in the grandparent’s affidavit of their availability, the overseas mission, their capacity to provide travel so that the mother could have time with the child, their relationship with her generally and most importantly, their relationship with the child, were all puzzling omissions.  To say that they had “a very close bond” is meaningless rhetoric.

3. The subject to the “overseas mission” by the father on public service duty was the subject of considerable cross-examination with the father constantly saying that it was no longer necessary to consider because he did not get the position.  I am convinced he did not understand the point that he would be leaving the child for a long period of time more likely than not in the care of the mother but even if his own parents were involved, how that would work, remained unsaid.

4. Although the evidence of the grandparents was unchallenged, it was unhelpful.

The evidence of Dr K

1. Dr K is a consultant psychiatrist.  He was not required for cross-examination and no challenge was made to his expertise.  He is an adjunct senior lecturer in the Department of Psychological Medicine at L University and has been a medical practitioner for 17 years.

2. Dr K assessed the mother on 18 August 2015. At that stage, he had the benefit of the March 2015 affidavits of the parties and the report of family consultant Ms U dated 16 March 2015 prepared pursuant to s 11F of the Act. That was not in evidence. He had the benefit of the family report of Ms M of 2013 which ultimately became part of the evidence. He had a variety of other reports including one from Associate Professor N, various medical reports of J Town Health, La Trobe Regional Hospital, a Dr O and the P Town Base Hospital medical records. None of that material was in evidence. However, as no party challenged the opinion of Dr K nor its factual basis, I have accepted it. I repeat again, the Court expects better in cases such as this than to simply have all these bits of information dumped upon it.

3. The psychiatrist’s report referred to the mother’s tragic background.  Despite that, she finished Year 12 at school, denied any learning difficulties and had a position of employment.  She acknowledged to Dr K cannabis use, heroin and cocaine use but all of that had been some years ago.  She had a previous alcohol abuse problem, drinking up to three bottles of vodka per night but, exactly when that happened, is unclear.

4. Dr K noted the mother’s past psychiatric history and her admission to the P Town Psychiatric Unit in 2008.

5. It was this report from Dr K that shone a light on the oblique reference in the evidence to the previous concerns about Mr F which had presumably given rise to paragraph 5 of the orders made in 2013.  Dr K said that the mother had reported in 2008, concerns about her former partner:

   Being involved in a conspiracy to molest her children.

   Dr K said she was reported in the hospital discharge summary when she had the psychotic episode as repeatedly questioning her children and was described as being involved in repetitive cleaning.  She was then diagnosed with obsessive compulsive disorder with psychotic features.  Importantly, the discharge summary said that she had “remorse” about making the allegations against Mr F.  That is still her position now.  Despite that, paragraph 5 of the orders of 2013 was obviously the subject of considerable discussion between the parties before it was made.

6. Dr K noted that the mother was then referred to Associate Professor N in Q Town where he diagnosed her with schizophrenia.  Upon being transferred from Q Town, Dr R of the I Town Mental Health Service noted schizophrenia, delusional disorder, drug induced psychotic disorder and borderline personality disorder.  That may very well have accounted for the requirement for the mother to attend and seek assistance from the I Town Mental Health Service.  It is equally obvious that it was the reason why the father was to be notified of any change of her mental health.

7. Dr K then noted that the mother was seen by a psychologist Dr O in November 2014 with depressive symptoms but significantly, that professional had observed “deterioration” in the mother’s mental health with a feeling of distress and being overwhelmed.  That resulted in a referral to the E Town Community Mental Health Services of concern about her depressed mood and suicidal ideation although without any plans.  The diagnosis during that period was borderline personality disorder and post-traumatic stress disorder.

8. It is very disturbing that none of this evidence was presented to the Court other than in the oblique way through Dr K having trawled through the various reports.  Neither of the parties’ affidavits gave any details of the nature of the mother’s mental health problems or more importantly, their manifestation for the purposes of determining whether there was a risk to the child.  It was Dr K's evidence that alerted the Court to the evidence about Mr F and notwithstanding the mother’s protestations that he was not a risk to the child and she was not leaving the children with him alone in any event, paragraph 5 of the 2013 orders still stood.  When she was pressed about that, the mother said that she was told by her lawyers she had no choice but to agree to it.  The father led no evidence as to why he had pursued that order nor more importantly, why he had not now sought its discharge.

9. Dr K asked the mother why she had withheld the child for the six month period after October 2014 and she described it as being as a result of the allegations of violence and sexual abuse by the father. That becomes relevant because the mother was clearly able to describe the problem as she saw it to Dr K yet the Court was not told. It became apparent that that had been investigated only when the Court was made aware of the s 69ZW report by the Department of Health and Human Services but also the endeavours by the Independent Children’s Lawyer in calling a Mr S.

10. Ultimately, Dr K noted that the mother’s beliefs directed towards the father but also her former partner, were part of her psychotic symptoms in relapse but he was unable to find any other evidence of psychosis in August 2015.  He said it was pleasing that the mother was currently on anti-psychotic treatment and being monitored by public mental health services and, it was important that that continue. 

11. Dr K was concerned that the anti-psychotic drug she was prescribed was too low and would not offer sufficient therapeutic and/or prophylactic benefit and it should be increased subject to the mother being able to tolerate it.

12. Dr K agreed with Associate Professor N that the psychotic illness did pose a risk in terms of the mother’s parenting if there was a relapse but then went on to say:

    It is more likely to cause her to be overprotective and restrict contact rather than harm [B] in any way.

13. Dr K was concerned that the child would be subjected to emotional trauma due to exposure to any psychotic symptoms.  There is significance again in this issue because of the mother’s evidence, which is not disputed by the father, that Mr F is terminally ill.  The family consultant expressed concern that the mother would go through a natural grieving process of losing the person whom she had described herself as her “best friend”.  

14. Dr K’s evidence therefore is extremely important because it highlights the risk to the child in the exposure in the event of some relapse by the mother but not any other form of danger.  Consequently, evidence about Mr F’s health would have been helpful.  I accept the mother’s evidence that dragging Mr F into the court was a dangerous stressor in his personal circumstances but that problem could have been overcome by evidence of some more precise nature than the court was given.  As counsel for the father observed in final address, the mother’s positon to the family consultant was that Mr F had about six months to live, yet in evidence, she said that subject to the avoidance of stressors, he had between two years and five years to live.  The whole of the evidence-gathering exercise was totally unsatisfactory.

15. Dr K therefore concluded that the opinion of Ms M given to the Court in 2013 should be reversed.  It was only as a result of that statement being made that the family report of Ms M was produced to this Court.  It was otherwise not part of the evidence. 

16. Notwithstanding an order by the Court that the parties’ respective practitioners file an outline of case, that did not occur.  The Independent Children’s Lawyer went to the trouble of endeavouring to obtain a joint case outline to which the solicitors contributed.  By reference to that document, one can see that no party relied upon the report of Ms M.  Again, the evidence to the Court was significantly lacking.  Ms M’s report was completed on 21 January 2013 as a result of an order of the Federal Circuit Court and in anticipation of a final trial in that court.  Her recommendation was that the parties share parental responsibility but also that the child live with the mother.  Just what Dr K was referring to as a “reversal” of Ms M’s opinion, remains unclear. 

17. Throughout this trial, counsel at various times indicated that the mother’s mental health state was currently good and under control from medication.  Dr K does not exactly say that but I have concluded that that is the opinion that all parties have held and absent any other contraindicators, I shall accept it. 

The s 69ZW report

1. Pursuant to an order made by Judge Stewart in the Federal Circuit Court on 1 April 2015, the Department of Health and Human Services provided information pursuant to s 69ZW of the Act and it was admitted into evidence without objection. Rather than deal specifically with what this report said, I shall refer to it as an indication of what view the Department took of the various incidents about which the parents remained relatively silent.

The evidence of the parties

1. The evidence of the mother in two affidavits said nothing about the shared arrangement arising from the 2013 orders.  She did say that in June 2014, the child returned from the father telling her he had fallen out of a shopping trolley.  The mother said his injury was such that when he went down a slide at the park on the point of his return from the handover, the wound opened up and was bleeding.  She said she went to the doctor but little else was said.  She said she contacted a hospital so she must have been told by the father at least about that.  It was left to her evidence in the courtroom to explore that.  She said when she contacted the hospital, they had “no recollection of it” meaning the child’s attendance there.  I do not accept her evidence on that point because the father’s description to which I turn in a moment, was so precise and clear that it is implausible for him to have made it up.

2. This shopping trolley incident took on a life of its own in the hearing.  What emerged was that the description, and the context in the mother’s affidavit, were far from adequate.  On any view, the evidence of the mother in her affidavit must have been led to suggest some sort of recalcitrance or failure on the part of the father.  It was only in cross-examination that the mother gave a more adequate piece of evidence.  She said in response to a question that it was her firm view that the child had been abused by the father, she replied words to the effect:

   His head was still open and bleeding after three days.  He had to go to hospital with a hole in his head.

   When she was asked when this all occurred, she was “pretty sure” it was September or October of 2014.

3. This particular questioning arose in the context of cross-examination of the mother as to what allegations she was making against the father.  When pressed, she said that the father told her that the child had fallen out of a trolley.  She said she contacted the D Town Hospital as soon as she saw his head and repeated that the hospital had no recollection of the matter.

4. No subpoena was issued to the hospital and otherwise no evidence was led by the mother about her inquiries.  No evidence was led as to the forensic response of the medical practitioner to whom she had taken the child. 

1. It was left to the father to explain what had occurred.  However, his affidavit of March 2015 specifically purported to address the mother’s affidavit and even on this subject, he was silent.   Having satisfied myself that he is a more accurate historian, the following version seems more plausible.  In evidence in chief, the father said that he was in a supermarket in D Town and whilst putting an item in his trolley, he saw the child fall and hit his head on the concrete floor.  The head began to bleed.  The father said that he was offered an ambulance by the store but he took the child to the accident emergency section of the local hospital where the child was checked by a nurse who gave the father some cream.  The clear inference from that statement was that the hospital was not particularly concerned about the matter.  The father said that at the hospital, he told the mother by telephone what had occurred and otherwise said there were no real problems.  Indeed, he said that when he returned the child to the mother, he gave her the cream and it would seem that when she went to the doctor, on her version, the doctor said that all that did was soften the wound.  None of this was in the affidavit material.  No mention was made of the discussion between the parties at the handover when the mother became aware of the head wound. 

2. The father impressed me as having reacted appropriately.  His evidence comprehensively explained what was obviously a natural childhood injury.  His unchallenged evidence was that he contacted the mother appropriately.  No evidence was led by the mother about the doctor’s visit. 

3. The raising of this incident was a distraction but it was evidence for no apparent purpose that would satisfy ss 55 and 56 of the Evidence Act 1995 (Cth). To the extent that the mother’s lawyer thought it relevant, nothing further in the trial affidavit in February 2016 indicated what it was. As the affidavit was drawn by the mother’s lawyer, more care should have been taken to explain not only the full story but also its relevance to any issue in dispute.

4. To the extent that the father thought that the Court considered his parenting skills lacking because of that, no such finding is made. 

5. In October 2014, according to the mother, the child made reference to the father throwing him against a wall.  She said she sought advice of the police and the Department of Health and Human Services but because she had decided to stop the father’s contact, the Department were not concerned.  As earlier indicated, the Court has admitted into evidence the report of the Department.  Of this period, it read:

   It was reported that [the child] had recently disclosed to his mother that he had physically [been] harmed by his father while on access contact, with [the child] alleging stating that his father “punches him” and “throws him against the wall”.  It was reported that [the child] did not present with any injuries or bruising with the exception of some normal play bruises to his knees and shins.

   Just where this information came from remains obscure but it seems to have been provided to the Child Protection Unit on 8 October 2014.  Of that particular period, the Department said:

   It had been assessed that the case be closed on the basis that there was insufficient information and insufficient evidence to suggest that [the child] was at any risk of harm in the care of either of his parents.

6. The father did not address the issue of these allegations against him but in cross-examination, he was tested as to whether any such incidents such as the child being thrown against a wall or being punched could have occurred.  Just what he could say about the particular incident that far back was hard to know but he was not cross-examined as to what actually occurred.  He said in evidence in chief (and perhaps had the mother raised it as an issue of concern, he would have been able to put that evidence into an affidavit form and have it examined) that the child had “chucked a tantrum” and had “touched” the father’s Ipad which locked the device.  He said he then yelled at the child “a bit too loud” but had certainly not thrown him.  He said he “picked him up and put him on his bed”.

7. Quite remarkably, the father then went on to say that at the handover, the child had said something to the effect:

   Daddy don’t throw me against the wall and I said:

   What?

   and he said “No, the bed”.

8. The father at this point in his cross-examination was at pains to observe that he had never harmed the child. I accept his evidence. As the mother was present when this conversation was said to have occurred and it was not suggested in cross-examination that it did not occur, I found the whole issue perplexing. What was concerning about this was the mother declined contact immediately thereafter. Whatever view the Department took, it was not apparent from the s 69ZW report that they had any concerns such as would justify a recommendation to the mother to cease contact.

9. The mother’s evidence was so vague about this that I have not been able to accept that she had any reason, arising out of what the child said, to cease the contact.  That however was not the end of the matter as sometime in October 2014, a more concerning issue arose.

10. I have already made reference to Mr S.  He attended court pursuant to a subpoena at the request of the Independent Children’s Lawyer notwithstanding he was the supporter of the mother.

The evidence of Mr S

1. Mr S is a volunteer with an organisation called T Inc. which is a registered charity. He was present when the interviews were undertaken pursuant to the order made under s 11F of the Act in March 2015 but he said that he was not involved in any discussion and did not recall speaking to the family consultant. The family consultant’s s 11F report made reference to the child making a disclosure of sexual abuse to Mr S. Notwithstanding that issue was raised, the mother took no action to bring that issue before the Court and left it to the Independent Children’s Lawyer to deal with.

2. Mr S described how he said that in early October 2014, it was his first visit to the mother’s home.  He said she went to make coffee and the child was running in and out and during that time said:

   Daddy’s a bad man.

3. Mr S said that he asked why and the child replied:

   He puts his dickie in my mouth.

4. Mr S said that he was shocked and he then went into the kitchen area to see the mother who responded that the child had said similar things to her.  His recollection was that this was a recent event to her but that the child had said those sorts of things repeatedly.

5. According to Mr S, the mother told him that the child had said it more than once.  Mr S was asked about his recollection and perception of the mother’s reaction when he raised the subject for the first time and he said that he observed a combination of both shock but also of the mother having heard it before.  He then said that he recalled the mother saying something about this having been said when she was with Mr F and it occurring in a bath.

6. Mr S then said that he contacted the Department of Health and Human Services to report the incident which he construed as a sexual abuse but they did not respond immediately.  He rang a day or two later but did not get a satisfactory response so he accompanied the mother to the police station within about a week of this incident occurring.  He said the police officer explained that they needed to be careful to get children to open up but in this particular case, notwithstanding the police interviewed the child (and Mr S was present) the child did not open up.

7. Mr S understood that the manager of the Department had taken the view that there would be no action because of the mental health history of the mother.  He said that he argued that it had nothing to do with the mother’s health because the child had said it to him. 

8. Mr S was very much of the view that the incident was not investigated properly by either the Department or the police.

9. Curiously, in the Department’s assessment, as disclosed in the s 69ZW report, they said (presumably of this particular incident):

   Police advised that the child made no disclosures regarding sexual abuse to police and that in the fact (sic) the opposite had occurred with the child denying the disclosure.  Police advised that under the circumstances the reliability and credibility of the disclosure was questionable and consequently further investigation was not assessed as being required.

10. Mr S seemed surprised when he learned of that attitude and responded that he took that as a personal slur on his credibility because indeed, the allegation was made to him.  I am not convinced that the police were doubting his credibility.  Having regard to the mother’s evidence about the propensity for the child to make up stories which has been confirmed by his psychologist Dr C, combined with the fact that the police took the view that the child denied making any such statement, it is conceivable that any investigation could not have gone any further.  For the sake of clarity, I have no hesitation in saying that I accept the evidence of Mr S as to what he heard. 

11. At the risk of being repetitive, this was a serious allegation and one that was investigated yet it was not set out in the mother’s affidavit and when asked why, she said she was asked to keep the sexual assault out of this particular case by her lawyer.  The sexual assault however that she was referring to was a different issue but that too was not mentioned.

12. When the mother was challenged about where any sexual abuse had occurred, she said that there were two incidents neither of which was the one to which Mr S was referring.  I return to both of those issues below.

13. Importantly, in respect of the October 2014 incident, no reference was made in either of the two affidavits of the mother about the involvement of Mr S.  What emerged however was that as a result of the investigation by the police, no doubt triggered by the involvement of Mr S, the police were not worried.  The Department file recorded the following:

    Police confirmed that the mother had advised them of her intention to withhold [the child] from having contact with his father as a result of the alleged concerns.  

14. This period began the six month break of time between the father and the child that ultimately precipitated his application culminating in the interim orders of March 2015 by the Federal Circuit Court.  The father’s affidavit of March 2015 for that court was equally unhelpful.  He said that the mother was contending that the travel between the existing handover point and E Town was too far for the child but on any reading of it, one could not conclude that he understood that allegations of a serious nature as in those set out by Mr S, had been made against him.  That situation was rectified in his February 2016 affidavit where he said:

    [44]That in early October 2014 I spent time with [the child].

    [45]That after I returned [the child] to [the mother] allegations were made against me by the mother alleging that I had both physically and sexually abused [the child] during his visit.  I deny the allegations. 

    [46]That in October 2014 the [E Town] Sexual Assault and Child Abuse Unit [SOCIT] investigated the allegations.

    [47]That SOCIT concluded its investigations into the allegations and advised child protection that [the child] had not made any disclosures and in fact denied ever making any allegations against me.

15. It is not clear to me from where the father gleaned that information about the investigation.  Whilst he said that he denied the allegations, no indication was given that the Department or the police had in fact spoken to him.  To the extent that they had, he did not say anything about it.  His affidavit in March 2015 would have been much more temporarily connected to the incident which gave rise to the cessation of his time.  In the March 2015 affidavit he said under the heading  of “My Concerns Include”:

    I note that the family consultant [Ms U] in her report dated 16 February 2015 reports that there are current DHS investigations relating to potential is used is [the child] (presumably meaning to sexual abuse) by a person known as [Mr V] in whose care is left (sic) (presumably the child is left) by (the mother) in February this year.

    This almost nonsensical statement was not only unhelpful but the evidence about “Mr V” was not raised by anybody.

16. In the Department of Health and Human Services report under s 69ZW, and covering the period from 3 February 2015 to 18 February 2015 (the relevant period about which the father seems to have been talking), the allegation was of sexual abuse by the father on an access visit but on any view, that had to have been the same one in or before October 2014. There were other allegations referred to raised about the child having sexualised behaviours towards his older half-brother. None of that evidence was raised by the mother. The Department file then said:

    It was reported the mother had obtained an interim order in place as per court outcome the day before in which the mother has reported full custody of [the child] at the time and access with the father had reportedly been stopped as per directions by the Magistrate.

    Where that evidence came from remains a mystery.

17. Importantly and perhaps of some assistance in explaining what the mother described as the child telling stories was the following from the Department’s report:

    Concerns raised that [the child] was displaying challenging behaviours and possible Asperger’s and that the mother had sought a referral to a paediatrician for assessment and treatment of him.  It was reported the mother suffers mental health issues but that her mental health was currently stable and she was continuing to actively engage with mental health services.

    The Department report then said that the parents were appropriately going through the Family Court regarding the issue of custody and residency.

18. During the early months of 2015, the Department contacted Dr C who is the psychologist dealing with the child and to whom I have earlier referred.  Whilst Dr C may have drawn adverse conclusions about the father, he also confirmed the child’s propensity to make things up.  That evidence from Dr C was also not before the Court and it was left to the Court and the Independent Children’s Lawyer to try and obtain materials to complete what is effectively a jigsaw puzzle.  I repeat again that, in a case as serious as this, the Court deserves better.

19. On 26 February 2015 and with the mother represented by counsel, she consented to an order for not only contact between the father and the child but for a block period from 11.00am Saturday until 6.00pm Tuesday of the week commencing 7 March 2015.  The only injunction was that both parents be restrained from physically chastising the child.  In what I can only conceive as either confusing or misconceived as to the seriousness, the notation to the order reads as follows:

    The mother has consented to unsupervised contact and contact changeover solely for the purposes of allowing the s 11F counselling and the putting of material on her behalf and in the light of the making of (the injunction about chastisement). She reserves her right to argue at any future hearing that contact be supervised.

20. When the mother was asked about this order she simply said that she was told she had no choice.  I find that very hard to believe but then again, having regard to the serious nature of the allegations that she and indeed Mr S were making, the outcome is very odd.

21. In the same order the following notation appears:

    The parties agree to adjourn the intervention order proceedings between them listed for 10 March 2015 on (sic) [E Town] by consent.

    No reference has been made in the evidence before this Court to those proceedings. Section 60CF of the Act provides:

    If a party to the proceedings is aware that a family violence order applies to the child, or a member of the child’s family, that party must inform the court of the family violence order.

    The child inclusive conference memorandum to the Court arising from the s 11F order was attached to the affidavit of the father in March 2015. Why that was simply attached by the legal practioner was unclear but there is no doubt that there was an intervention order application pending around that time because the following appeared in the report:

    [The father] strongly denies the current allegations in relation to both physical assault and sexual abuse.  In fact, he claimed to be largely unaware of there being any ongoing allegation of sexual abuse until this assessment.  Instead, [the father] reported that the mother’s current application for an intervention order against him related only to an allegation of physical abuse, which he planned to contest. [The father] believed that the current allegations against him had been fabricated by [the mother] in the context of escalating parental conflict.  He believed that the allegation of physical abuse arrived after he requested a police welfare check on [the child], given concerns for the mother’s mental health and subsequent to her ceasing the time spent arrangements between [the child] and his father.  [The father] further believed that [the mother] applied for an intervention order after his legal representative requested she upload the current parenting orders given that DHS and police failed to ascertain any evidence against him.  He raised concern [the mother] took out an IPO in order to suspend his time with [the child].

22. The notation to the order no doubt arose out of the discussion with the family consultant Ms U who undertook the s 11F report I have mentioned. For the purposes of s 60CC, I certainly could not make any finding even as to the existence of a family violence order in this case as the evidence was again silent on the subject.

The bath incident

1. Notwithstanding everything that has been said above about the statement to Mr S and dubious question of the throwing against the wall, it seems there was more.  In the interview with Ms U, the mother reported that she believed the child was at risk in the father’s care.  She told Ms U that a couple of days after the throwing against the wall statement, the child reportedly requested Mr F to get into the bath with him whereupon the child made a disclosure of sexual abuse perpetrated by the father.  Again, the question of what this was about was left to counsel during the hearing to probe.  That should not have happened.  The mother said that Mr F came into the bathroom when the child was in the bath at a point in time where the child made an allegation that the father had put his “dickie” in the child’s mouth.  She said that Mr F then got into the bath with “his shorts on”.  The mother described the child washing Mr F’s back and then asked him to turn around so that he could wash his “dickie”.  She said they then had a discussion with the child to say that that was not appropriate.  This was according to the mother, two days after the child was thrown against the wall.

Conclusion about the sexual abuse issue, the throwing against the wall issue

1. Having regard to all that has been said, the evidence does not support a conclusion that the father has done anything of the nature alleged above.  It is well understood from the authorities (M v M (1988) 166 CLR 69) that a court, in cases such as this, has to focus on the question of an unacceptable risk to the child of harm and does not have to concern itself specifically with the question of whether particular incidents of such criminal activity occurred but may do so and make findings if the evidence is quite clear. This is a case where I am satisfied the incident did not occur and that in respect of the period of October 2014 and thereabouts, the father did nothing wrong with the child.

Two other incidents of sexual abuse

1. When pressed in cross-examination, the mother’s focus was on physical violence rather than sexual abuse but when pressed about sexual abuse, she said that there was one incident when the child was four months old and another sometime later relating to her older child H.  She was pressed for an explanation bearing in mind that none of this evidence was before the Court.  She said that the father made the child play with her nipples and it was “disgusting”.  She confirmed that that was the “first allegation”.  It was only when the father gave evidence and was tested about this that the incident became a little clearer.  He said that he was holding the child only some close distance away from the mother and he thought that the child was about 12 months old.  I think it is more likely that the mother’s version that the child was four months old is correct because the parties had separated before the child was 12 months old.  He said the child lunged out towards the mother’s breasts and that he then said:

   Daddy loves those too.

   The father maintained that the child did not touch his mother’s breasts but he may have and he then apologised to the mother because she took offence.  He went on to say that this was an attractive part of the mother’s body.

1. There were also discussions about injunctive relief.  The Independent Children’s Lawyer suggested that an order should be made that the parents be restrained from engaging in or encouraging, inappropriate adult conversation with the child and talking about the other parent.  Leaving aside the question of the fact that such conduct is irresponsible parenting, there is not sufficient evidence here to justify such an order.

2. The Independent Children’s Lawyer also suggested that an order should be made against both parents that they be restrained from using alcohol to excess, illicit drugs or exposing the child to those.  There is no evidence here of excessive alcohol consumption.  There is certainly evidence of the use by the mother of illicit drugs but two observations should be made.  The evidence does not support a conclusion that the mother is using drugs now.  More importantly, it is farcical for the Court to make an order that someone not do something which is already against the law.

3. It was also suggested that there be orders to ensure that the child was not exposed to physical or verbal violence perpetrated by the parents or other persons in their company.  Leaving aside the question again of that being irresponsible parenting, it is hard to police and harder to enforce.  The most likely situation in which a confrontation will occur between these parties is at the occasional changeover but all indicators at the moment are that there is a cooperative arrangement for the reasons I have already set out.  Under those circumstances, it is not appropriate to make that sort of order. 

4. There was also a proposal for an order that the mother and the father not use corporal punishment.  The father certainly conceded that he had smacked the child.  It was such an isolated incident and the circumstances were so vague, that I could not find what exactly happened.  The child is a boisterous child.  There is sufficient community concern about corporal punishment but this is not the case to ventilate the community’s philosophical concerns.  Both parties have to learn how to discipline the child.  The most sensible and logical solution is for the parties to agree on a discipline course of action so that the child understands the discipline policy across the board.  It is a sad day when the Court has to intervene to the level of telling parents not to punish their child by corporal punishment.  I do not propose to make the order here.

Injunctions against the mother reporting allegations of sexual abuse

1. There was certainly discussion about seeking an order that the mother be restrained from taking the child to people for investigations into claims about sexual abuse and indeed, to restrain her from making allegations about sexual abuse.  Because evidence in cases of sexual abuse are determined in the balance of probabilities, it must mean that the court is or is not satisfied about an allegation based upon what probably happened.  It is always conceded that that is the best the court can do and indeed, could be wrong.  The court can only deal with the case according to the evidence that it has.  Accordingly, it is a very grave step to take to preclude a parent from making an allegation to the appropriate authorities where children are involved.  The situation here is no doubt exacerbated by the mother’s mental health issues but the child is well known for saying things that are controversial.  Why that occurs is not known.  In discussion, it was suggested that perhaps an order should be made that the mother not make any reports except upon the advice of the health professionals with whom she works and in particular, those whose focus is upon the child.  I find the evidence on this issue is lacking.  An injunction of this nature requires a history of that sort of conduct.  All of the allegations here seem to be brushed under the carpet by the mother.  If it were not for the dedication and concern expressed by Mr S, the scrutiny in relation to the sexual abuse allegation in October 2014 might not have occurred.  That said, there have been no similar allegations of late.  Notwithstanding the reservations of Mr S, I am satisfied that the Department of Health and Human Services and SOCIT are well capable of deciding whether something needs to be properly investigated.  That is more so now with the father living in the E Town area.  The child has already been through a number of investigations and inquiries and is constantly in the hands of health professionals.  That is normally the evil that the courts try to stop by such constant allegations being raised.  Here, the evidence suggests that the child is accustomed to having his day disrupted by attendances on health professionals.  He is well familiar with police and Health and Human Services staff.  The evil does not arise.  In my view, the orders should not be made.

I certify that the preceding Two Hundred (200) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 30 March 2016.

Associate: 

Date:  30 March 2016