LAMBERLE & LAMBERLE
[2020] FCCA 404
•26 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LAMBERLE & LAMBERLE | [2020] FCCA 404 |
| Catchwords: FAMILY LAW – Parenting – mother's ability to promote and support the child’s relationship with the father – allegations of abuse made by the mother – where the mother alleged that the child had suffered sexual abuse or was at risk of sexual abuse in the father’s care – where the mother withdrew the allegations of sexual abuse during the course of the trial – unacceptable risk considered – definitive findings that the father had not sexually abused the child and definitive findings that the child had not suffered any harm in the care of the father or in the father’s household. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAA |
| Cases cited: Briginshaw v. Briginshaw (1938) 60 CLR 336 |
| Applicant: | MR LAMBERLE |
| Respondent: | MS LAMBERLE |
| File Number: | BRC 156 of 2017 |
| Judgment of: | Judge Howard |
| Hearing dates: | 9, 10, 11, 12 & 19 July 2019, 26 & 27 August 2019 |
| Date of Last Submission: | 1 November 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 26 February 2020 |
REPRESENTATION
| The Applicant attended as a self-represented litigant |
| Counsel for the Respondent: | Ms Dart |
| Solicitors for the Respondent: | Neumann & Turnour Lawyer |
| Counsel for the Independent Children's Lawyer: | Mr Slade-Jones |
| Solicitors for the Independent Children's Lawyer: | Lyrene Wiid Lawyer & Migration Agent |
ORDERS
That all previous orders made in relation to the child X born in 2011 (“the child”) be discharged.
That the child shall live with the father.
That the father shall have sole parental responsibility for the child.
That subject to Order (5), the parents shall do all things necessary to ensure the child spends time and communicates with the mother at all times agreed and failing agreement as follows:
(a)For a period of two consecutive Sundays from 9:00a.m. until 12 noon, to commence on Sunday, 22 March 2020,
(b)Once the time set out in 4(a) is complete, for a period of two consecutive Sundays from 9:00a.m until 5:00p.m.,
(c)Once the time set out in 4(a) and (b) is complete, for a period of two consecutive weekends from Saturday at 9:00a.m. until Sunday at 5:00p.m.,
(d)Once the time set out in 4(a) to (c) is complete, on an alternate weekend basis for 4 occasions from after school on Fridays until Sundays at 5:00p.m.,
(e)Once the time set out in 4(a) to (d) is complete:
(i)On an alternate weekend basis from after school on Fridays until the commencement of school on the Monday; such time to be extended by 24 hours if the weekend includes a pupil free day;
(ii)Subject to Oder 4(e)(iii), for half of all school holidays;
(iii)from 9:00am on Christmas Eve until 12 noon on Christmas Day in each even year, and from 12 noon on Christmas Day until 6:00pm on Boxing Day in each odd year PROVIDED THAT the child spends similar time with the father from 9:00am on Christmas Eve until 12 noon on Christmas Day in each odd year, and from 12 noon on Christmas Day until 6:00pm on Boxing Day in even year.
(f)For a period of three months from the making of these orders any telephone or other electronic communication between the child and the mother shall be at the father’s sole discretion, and thereafter the parents shall each be at liberty to contact by telephone or other electronic means the child at any reasonable time but in any event at a time as soon as possible after school on Tuesdays, Thursdays and Saturdays such that the parent with whom the child is living or spending time shall use his or her best endeavours to facilitate such communication.
That IT IS A CONDITION of the time commencing as set out in Order 4(c) and any time ordered thereafter, that the mother shall have commenced counselling with a suitably qualified professional to help her understand and accept the court’s decision. Any costs shall be met by the mother.
That the father shall enlist the services of a suitably qualified professional to help re-introduce the child to the mother under the new circumstances set out herein, and should he do so, then he, the mother and the child shall attend upon such professional as that professional sees fit to ensure these orders are realised to their fullest potential. Any costs shall be met by the parents equally.
That in the case of the professional set out in Order (5):
(a)The mother shall in the first instance consider the services of Ms A, Family Therapist and Counsellor at B Street, Brisbane;
(b)The Independent Children’s Lawyer shall provide the professional with a copy of the reasons for judgment delivered today.
That in the case of the professional set out in Order (6):
(a)The mother shall in the first instance consider the services of Ms C, D Consultants, E Street, Suburb F;
(b)The Independent Children’s Lawyer shall provide the professional with a copy of the reasons for judgment delivered today.
That all changeovers shall occur at the child’s school if a school day and otherwise at G Park, which is known to the parents.
That the parties shall notify one another as soon as practicable in the event that the child is diagnosed with any serious medical condition or suffers a medical emergency in that party’s care.
That the father shall notify the mother, and keep her notified, of the schools which the child attends and furnish her with the child’s school reports as they become available to him.
That the parties are hereby restrained, and injunctions are hereby granted restraining each of them, from:
(a)Denigrating the other in the presence or hearing of the child;
(b)Permitting any other person to denigrate the other party in the presence or hearing of the child;
That if the father chooses to email the mother then he shall only use the email address advised to him by the mother’s solicitor within seven (7) days.
That the parties shall either use a communication book to communicate about the welfare of the child and for no other reason, or they shall use an online tool or parenting App, as the father chooses.
That a Family Consultant explain to the child the effect of these Orders forthwith following the judgment.
That the Independent Children’s Lawyer is hereby discharged.
That all outstanding parenting applications are hereby dismissed.
IT IS NOTED:
(A)Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in “Parenting Orders – obligations, consequences and who can help” and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Lamberle & Lamberle is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 156 of 2017
| MR LAMBERLE |
Applicant
And
| MS LAMBERLE |
Respondent
REASONS FOR JUDGMENT
The Applicant father, Mr Lamberle, was born in 1993.
The Respondent mother, Ms Lamberle born in 1993. The Court proceedings state the mother’s surname as “Lamberle” but I will use the mother’s maiden name of Lamberle.
The parties have one child, X born in 2011.
From late 2011 until late 2012 the parties lived with the mother’s parents. They married in 2012. In July 2016 the parties separated on a final basis and they were divorced on 4 August 2017.
The parties have not been able to reach an agreement in relation to parenting arrangements for X.
Currently the child lives with the mother and spends time with the father each week from Thursday afternoon to Saturday afternoon.
The mother seeks orders that, in the event the Court finds that the child is at unacceptable risk of harm in the care of the father, that the child shall live with the mother and that the child shall spend no time with the father. Having regard to the mother’s evidence and the case as it was prepared and presented on behalf the mother – I have come to the conclusion that this is the mother’s preferred outcome. The mother’s alternative proposal is that – should the Court come to the conclusion that the child is not at an unacceptable risk of harm in the care of the father – then the child should live with the mother and spend alternate weekends with the father.
The father's preferred position was that the child live in a week about arrangement with each parent. The father, however, is concerned that this may not be workable – essentially because of the mother's view of the father and because of the evidence adduced at the trial. The father’s position at the conclusion of the trial is that the child should live primarily with him and spend alternate weekends with the mother.
The Independent Children’s Lawyer, at the conclusion of the trial and in the written submissions filed 23 September 2019, has submitted that the child should live primarily with the father and spend alternate weekends with the mother – after a short phase in period. The Independent Children’s Lawyer seeks a moratorium of the mother’s time with the child of three weeks. The Independent Children’s Lawyer argues that the mother has already sought to thwart and undermine the relationship between the child and the father and the mother will continue to do so unless there is a change of residence. It will become apparent from the reasons for judgment that I agree with the conclusions reached by the Independent Children's Lawyer in relation to the living arrangements for X.
Since separation the mother has lived with her parents and the child.
The father has re-partnered. His partner’s name is Ms H. I found her to be a credible witness. I accept her evidence.
Section 60CA
Part VII of the Family Law Act 1975 (Cth) (“the Act”) deals with children.
Section 60CA states:
“60CA. In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
Section 60CC
In order to determine what is in the child's best interests the Court must have regard to section 60CC of the Act. The primary considerations are set out in section 60CC(2). Section 60CC(2) and 60CC(2A) state:-
“60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”
One of the main issues in this case relates to the question of risk and the need to protect the child from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence (section 60CC(2)(b)). In her trial affidavit filed 17 June 2019 the mother sets out allegations against the father. She sets out her concerns in relation to the child’s time with the father. In paragraph 87 the mother sets out (by way of summary) the risk issues for the child in the father’s care. Paragraph 87 of the mother's affidavit states:-
“87. I am concerned that X is at risk in her Father's care due to a number of matters including the following:
a. X exposed her bottom and vagina to me on 3 April 2018 and made various comments which have made me concerned as to what was occurring at her father's home.
b. X has disclosed her father has hurt her by hitting and punching her.
c. X has made comments to the effect that she feels unsafe with her father or does not want to see him.
d. X has been sticking her finger in her anus and playing with her faecal matter.
e. She has been demonstrating concerning behaviours upon her return from being in her father's care and has significant difficulties on Thursday mornings (the day she goes into her Father's care).
f. Mr Lamberle perpetrated domestic violence towards me, which X was exposed to.
g. Challenges that I experience in communicating with Mr Lamberle and our failure to be able to reach agreement on some of X's health.
h. Mr Lamberle does not appear to follow the advice of health professionals who have treated X.”
The mother then proceeds in her trial affidavit to provide detail in relation to the concerns outlined in paragraph 87 of her affidavit. On 3 April 2018 the child and the mother were on holidays at Town J. They went for a swim and then returned to their hotel room to have a rest. The mother told the child to go and have a shower. The mother then states in paragraph 91 of the trial affidavit:-
91. “X took off her swimmers and came out and lay on the bed. She flipped her legs over her head to expose her bottom and vagina to me – I asked what she was doing and X said t was fun to show her bottom’. I said words to the effect ‘I hoped she only did that to me’. She paused. She spoke very softly saying, ‘I show dad to’. And then I said, ‘oh’.
In paragraph 92 of the mothers' trial affidavit she states:-
“92. X said words to the effect Ms H had said it was funny to show their bottoms to Mr Lamberle. X said when she goes to shower she undresses and Ms H ‘drops her own pants’. She said words to the effect that when they shower, they:
a. ‘Sit on Dad's face’;
b. ‘Then Ms H always says, 'do you have a fart?', when she wants to annoy Dad';
c. Ms H says to fart on dad.”
In paragraph 95 of the mother’s evidence she notes that the child apparently told certain things to an occupational therapist named Ms K. These were similar matters to the matters referred to in paragraph 92 of the mother’s affidavit. Ms K informed the mother of this after an appointment on 5 April 2018. On 11 April 2018 the child had another appointment with Ms K and after that appointment Ms K told the mother that she would be reporting her concerns about X to Child Safety. On 15 April 2018, the mother says that she received a call from Ms K who told the mother that she had made a report about X to the Child Protection and Investigation Unit at Suburb L. On 16 April 2018, the mother says the child attended another session with Ms K and apparently drew some pictures which Ms K thought were concerning. On 19 April 2018, the child was due to spend time with the father but the mother sent an email to the father advising that the child “had made some disclosures to Ms K and report had been made to the CPIU” (note paragraph 100 of the mothers' trial affidavit). The mother told the father that the child would be remaining in her care until further notice.
Also on 19 April 20, 2018 the mother received a call from Detective Senior Constable Ms M at CPIU, Suburb L, stating that she wanted to interview the child. I then note paragraph 102 of the mother’s trial affidavit:-
“102. On 20 April 2018, I took X to CPIU at Suburb L for an interview at 3.30 pm. After the interview, Detective Ms M told me that the police would not be investigating, because the behaviour could not be labelled as abuse because it was a game. She did state the behaviour was inappropriate and that she would be contacting Mr Lamberle and Ms H.”
In paragraph 105 of her trial affidavit the mother states that she has not made any reports about X to the Department of Child Safety or to CPIU.
The outcome of the CPIU interview was (as noted) that the allegation or the concern raised “could not be labelled as abuse because it was a game”. In other words, the submission made by Mr Slade Jones, Counsel on behalf of the Independent Children’s Lawyer, is correct. The allegation was not substantiated.
The Queensland Police Service produced a document entitled, “Solicitor’s Office Report Details”. The document in question commences at page 176 of exhibit 4. Exhibit 4 is the subpoena bundle prepared for the Court by the Independent Children’s Lawyer. The relevant “Solicitor's Office Report Details” from the Queensland Police Service states, inter-alia, in relation to the police investigation of the mother’s allegations (especially from page 179 of exhibit 4) that:-
"Ms Lamberle attended Suburb L CPIU with her daughter X. The child participated in a 93A interview with the DCS present. Child made no disclosures of harm or anything of concern. Once the 93A was exhausted, without any disclosures, police asked directly about the notification information. The child stated that Ms H told her to sit on her dad's face and fart. She said this made her feel unsafe. There were no further disclosures about anything of a sexual nature and investigators believe that the child has not been subjected to any physical or sexual abuse."
The Solicitor’s Office Report from the Queensland police goes on to state:-
“Police advised Lamberle of the outcome at which point she broke down hysterically and began shaking”.
The police then stated that, “police do not at this stage have concerns of the child’s return to the father's care.”
It is also to be noted that at page 180 of exhibit 4 that the police interviewed the father and his partner, Ms H. The police records state:-
"Subject persons Mr Lamberle and step mother Ms H have attended Suburb L CPIU to discuss notification. Ms H stated that on one occasion she, LAMBERLE and the child were mucking around at home when she jokingly said to the child to sit on her dads face to fart. She stated she was just joking around and did not mean anything by it. Ms H also stated that on one occasion they had been out to the beach and upon returning home have had a shower with swimmers on. During that shower the child took her togs off and Ms H washed her hair. The child is 6 years old and Ms H was assisting her in the shower. There were no sexual elements to the interactions.
The investigation reveals that there are no child protection concerns for the child when residing with her father and step mother. The child has disclosed only normal punishments and normal family activities which are not of concern. DCS advised.”
Following the investigation by the police and following information provided to the mother by the police (i.e. that they had no concerns about the child in the care of the father) – the father’s time (which the mother had unilaterally suspended) was recommenced.
I note the written submission from Counsel on behalf of the Independent Children's Lawyer (especially from paragraph 8.2.6). The relevant paragraphs in fact state:-
“8.2.6. On 23 April 2018 the mother’s solicitor (Mr N: see the letter exhibited to the father’s evidence is chief) sent an email to the father, which said the mother would continue to facilitate the visits pursuant to the order (for overnight time). It is inescapable that the mother at that time was not concerned.
8.2.7. Yet on 17 June 2019 (some 13 months later) the mother dedicates 15 paragraphs to very same issue. Nothing has changed except the mother’s decision to re-agitate (on her own case) a dead issue.
8.2.8. Neither the police nor Department were concerned about what the child had said, nor importantly could the mother have been: she reinstated the time as per orders made in April 2018 for overnight time though her solicitor.
8.2.9. The inescapable conclusion is that the mother is determined to have this court make findings of unacceptable risk of harm, where there is no sufficient, if any, evidence to support such a finding, something she must have conceded when she had her solicitor send a letter to the father reinstating time after the investigation was concluded. What is the court to make of this? Without any supporting evidence, and against the weight of rational reasoning, and against her own earlier better judgment, she has come to this court again with her concerns. Nothing has changed since the allegations were disposed of except the mother’s renewed determination to have them aired.”
I accept these submissions made on behalf of the Independent Children's Lawyer. The mother must have concluded (in April 2018) that the child was not in fact at risk of harm in the father’s care – or she surely would not have recommenced the child's time with the father.
I note the written submissions on behalf the mother in relation to this aspect of the evidence. The mother is critical of the father for not giving an “explanation in some way prior to the trial”. The father is self-represented. The parties had leave to inspect the subpoenaed material. Before the commencement of the trial I have no doubt that the mother and/or her lawyers inspected the subpoenaed material. The subpoenaed material includes (page 180 Exhibit 4) – the details of the police interview with the father and Ms H. Notwithstanding that information contained in the subpoenaed material – the mother continued to press for a finding that the child was at risk of sexual abuse in the father’s household – until the mother was being cross-examined – at which point in time she withdrew her contention that the child was at an unacceptable risk of sexual abuse in the father’s care and in the father’s household. The mother had the innocent explanation as detailed in the police note revealed in accordance with the subpoena. The explanation provided in that police note did not satisfy the mother.
In any event, there is no evidence of any wrongdoing by the father or by Ms H in relation to these allegations.
On page 13 of her trial affidavit the mother then includes evidence of various discussions she had with the child. Apparently in January and April 2018 (and on other occasions) the child had expressed a wish not to go to the father’s house. I will return to this later.
On 21 March 2018 the mother took the child for a check-up with Dr O. The mother states in paragraph 107 of her trial affidavit:-
“107. In around March 2018 I am aware X's doctor, Dr O may have previously made a report to the Department of Child Safety, Youth and Women ("DOCS"). On 21 March 2018 I took X for a check-up with Dr O. Dr O noticed about 5 point bruise on one of X's knees. He asked where the bruise had come from and took photos of it. I had noticed the bruises on Saturday, 17 March 2018, but they had gotten darker in the following days. X had made a comment that Mr Lamberle had grabbed her leg and when she tried to get his hand off he had picked her up and turned her upside down. She said she was afraid her would drop her on her head. X said Mr Lamberle had thrown her across a bed and 'grinned'. She also made a comment about Ms H being smacked. I have not been contacted by DOCS.”
The mother’s evidence in her affidavit is deliberately misleading. The mother stated at paragraph 107 of her affidavit that on 21 March 2018 she took the child to see Dr O “for a check-up”. But the doctor’s notes make it clear that a visit took place on 19 March 2018 (not 21 March) and that the reason for the visit was “bruising”. I agree with the submission made in behalf of the Independent Children’s Lawyer that it could hardly be said that it was Dr O who noticed the bruising. The mother has not been truthful with the Court in relation to that issue. The doctor’s record of this visit appears at page 122 of exhibit 4.
That doctor’s note also records as follows – “says that her dad and her were wrestling and he picked her up by her leg, hung her upside down and threw her on bed”.
Even if this occurred – it was clearly some “wrestling” which the child and her father were engaged in together. It was a game. Obviously that is the case because the child told the doctor “her dad and her were wrestling”.
The mother also stated in paragraph 111 that she had noticed a bruise on the child’s hip and also noticed that the child’s left eye was “slightly red”. The mother states, “I wrote my observation in my diary. I did not ask X about the bruise or her eye at the time.”
The mother was keeping a diary/list of her observations – recording concerns about the child in the father’s care.
The mother continues in her evidence as follows:-
“112. On 18 June 2018, during X's bed time routine said that her father had hit her really hard before because she said something that she thought was fine. She said words to the effect that she was bored waiting for Ms H to put on her makeup and so X started playing the "mixing up name game". She said she had called Mr Lamberle, ‘Mr Lamberle Ms Lamberle’. She said Mr Lamberle replied, ‘Don’t call me that shit last name’ and hit her across the left side of the face. She said words to the effect, ‘He got me on the eye too’. I asked if she got some ice for it but she said words to the effect, ‘No. Dad just laughed He always laughs when someone's hurt’.
113. On 26 June 2018, during bed time prayers X said words to the effect, ‘I never ever, ever, ever want to see my Dad again - he's mean and horrible and give me lots of bruises. Dad punches me in the back of the head and the front. He says mean things to me and he's dis-fun. Please God, I pray it's not too long, please be before my birthday. I never want to see him again. Amen.’ She started crying as she finished praying. I held her close. She asked me to sing to her, which I did. She fell asleep.
114. On 16 August 2018 I wrote an observation in my diary that X had come back from Mr Lamberle's with a bruise on her hip and her left eye looked red.
115. On Saturday, 22 December 2018, X told me she did not want to "go back" to Mr Lamberle and that" I don't feel safe there". Later that afternoon, as I was helping her shower, X told me Mr Lamberle had punched her. I asked what she meant. She told me she was talking to Ms H when Mr Lamberle started hitting her in the ribs. She demonstrated with her own fists how he punched her. It was with a closed fist. She pointed to her sides where she said he was hitting her. She repeated the closed fist action. I asked if she had asked him to stop. She said she asked him to stop five times. She said Ms H had told him to stop also. X said she started crying but Mr Lamberle told her she was fake crying and he was not hurting her. I was eventually able to get her to stop crying.”
In her trial affidavit the mother then talks about “X's medical conditions”. Underneath here the mother lists anxiety, sensory processing difficulty, and possible asthma. At paragraph 188 of the trial affidavit the mother returns to allegations against the father. Some of the matters raised in this part of the mother’s affidavit appear to be linked to the earlier allegations already referred to. In paragraph 188:-
“188. On 12 May 2018, when X returned home she could not sit still, seemed to be moving around constantly and repeatedly hitting her own leg. She mentioned her bottom was stinging and had trouble going to the toilet. She made high pitched squealing noises and was crying uncontrollably. In the shower, she said she was scared of the water, and started hyperventilating making a high pitched "he, he, he, he" noise. When I tried to move her out of the shower she refused to get out. When I was eventually able to get out her out of the shower, she screamed. She stuffed her towel into her mouth and appeared to be biting it. She also repeatedly hit herself in the head saying words to the effect of, "I'm naughty", "Stupid, X, you're so stupid, so stupid, stupid, stupid!”
In paragraph 189 the mother returns to the December 2018 discussions with the child (already noted in paragraph 115 of the mother’s trial affidavit). The mother again provides evidence of what the child told her about the father punching the child. From paragraph 191 the mother again describes what the child told her:-
“191. I directed X to the shower. As we walked into the bathroom, X started sobbing. I reassured her she was okay and I undressed her and helped her into the shower. X was still sobbing. As I was helping her shower, X told me Mr Lamberle had punched her. I asked what she meant. She told me she was talking to Ms H when Mr Lamberle started hitting her in the ribs. She demonstrated with her own fists how he punched her. It was with a closed fist. She pointed to her sides where she said he was hitting her. She repeated the closed fist action.
192. I asked if she had asked him to stop. She said she asked him to stop five times. She said Ms H had told him to stop also. X said she started crying but Mr Lamberle told her she was fake crying and he was not hurting her. I was eventually able to get her to stop crying.
193. I did not see any marks around X’s ribs. I felt helpless. I reassured X that she was okay and helped her finish her shower.”
It does not seem to have occurred to the mother that the child might have invented this story. It is inconceivable that a child (such as X) could be punched in the ribs by an adult male (such as her father) with closed fists repeatedly – and yet the mother was putting the child in the shower and the mother says that she did not see any marks consistent with the father having punched the child in the ribs. I will return to this point later.
I note at the commencement of the cross examination of the mother by Mr Slade Jones of Counsel – the mother provided the following evidence (from page 237 of the transcript 11 July 2019 from line 30):-
“MR SLADE JONES: Ma’am, when your child makes disclosures about the father hitting her do you believe her?
MS LAMBERLE: Yes, I do.
MR SLADE JONES: Do you believe everything she says about what the father says about hitting her?
MS LAMBERLE: Yes. I think so.
MR SLADE JONES: You think so. Do you or don’t you?
MS LAMBERLE: Yes. I believe so. You would have to give more context.
…
MR SLADE JONES: I will ask you generally at the moment. When the child makes a disclosure to you about being hit by the father do you believe her?
MS LAMBERLE: Being hit by him. Yes, sir.
…
MR SLADE JONES: You don’t agree. Well, there’s the example I will give you. Which is the child has told you on in numerous occasions that the father has seriously bashed her up. Fair to say there?
MS LAMBERLE: That he has hit her. Yes.
MR SLADE JONES: That he seriously bashed her up?
MS LAMBERLE: That he has hit her. Yes.
MR SLADE JONES: That he seriously bashed her up. Do you agree with me?
MS LAMBERLE: She has said that he has hit and smacked her.”
The mother told the Court (page 246 of the transcript from line 39) that the father had struck the child with a closed fist punch to the back of the head. At page 247 of the transcript the mother states as follows:-
“MR SLADE JONES: Do you believe that the father has struck her with a closed fist to the back of the head?
MS LAMBERLE: Yes, I do.
MR SLADE JONES: Do you believe that the father has struck this little girl with a closed fist to the front of the head?
MS LAMBERLE: If she has said it, yes, sir.”
This evidence from the mother is extremely concerning. The mother says that she believes that the father has struck the child with a closed fist to the back of the head and to the front of the head. The mother also believes that when the father struck the child with a closed fist to the back of the head he used such force that it was sufficient to propel the child to fall face down across the room. The mother believes what the child tells her (and others) about the father hitting the child. But when asked, “Where are the injuries consistent with this?.” The mother stated that the injuries (or the evidence) is “not before the Court”.
It is inconceivable that an adult male (the size of this father) could strike a child with a closed fist to the back of the head or the front of the head (with the force alleged) and yet not cause any injury or visible injury to the child.
The mother (at this stage during the cross examination) volunteered that, “I've seen bruises on X” (note page 247 of the transcript, line 20). The mother says that she has seen bruises on the child's bottom, her knee, her legs (including her shins), her arms, shoulders and on her mid back. The mother also says, “I've seen bruises to the middle of her face, between her eyes”. The mother told the Court “I have these photos” and the mother stated “I have some of these photos”.
The Counsel for the Independent Children’s Lawyer called for the photographs. Mr Slade Jones then asked the mother further questions when calling for the photographs:-
“MR SLADE JONES: If that evidence exists, I call for it; do you understand what that means? It’s more of an indication to your lawyers than it is to you. I want to see this evidence because it might support the child’s argument or case of what she says, that this man – and, for the transcript, big man, six-foot tall rugby player….
MS LAMBERLE: Yes, sir.
MR SLADE JONES:…has punched her in the head with such force that she has fallen to the ground without a single mark on her body – on her head, front or back. If you have that evidence, I want it?
MS LAMBERLE: Yes, sir.
MR SLADE JONES: Can you get it?
MS LAMBERLE: I can show photographs, yes, sir.
MR SLADE JONES: Can you do that now?
MS LAMBERLE: I would have to go home and get them off the computer.”
The mother did not include the photographs in her trial affidavit. An excuse was provided as to why the photographs were not annexed to the mother’s affidavit. The mother has alleged that the father has physically abused the child. If there existed photograph of this alleged abuse I would have thought that it would have been the mother’s first priority (and her lawyers’ first priority) to ensure that the photographic evidence was before the Court. The photographs should have been annexed to an Affidavit as early in the proceedings as possible. They were not produced until a call was made for them by Counsel for the Independent Children’s Lawyer. When such serious and persistent allegations have been made it is unfair and unacceptable for the mother to conduct the proceedings in this way.
At page 286 of the transcript (11 July 2019) from line 9 – the mother provided the following evidence:-
“MR SLADE JONES: What do you say about the disconnect between the evidence the child gives with respect to the mechanics of being hit and the lack of injury as a result of being hit on the back of the head, the front of the head, and the side of the neck, and in the ribs, repeatedly?
MS LAMBERLE: I have seen bruises on X, and from what she says it doesn’t sound very good. I accept that the QPS has not got those details.
MR SLADE JONES: Well, why haven’t they got those details? Because you haven’t given them to her – to them?
MS LAMBERLE: I was told not to make reports.
MR SLADE JONES: You were told not to make reports. I see. The police told you not to make reports?
MS LAMBERLE: My legal counsel told me not to.
The mother's evidence continued:-
“MR SLADE JONES: There are no injuries on the days you allege that these beatings took place, are there?
MS LAMBERLE: I have never said that they were beatings.
MR SLADE JONES: I say they’re beatings. Do you agree with me that they are beatings, when you would hit a child square in the face – in the head – forehead, closed fist, back of the head, closed fist, and hit the child at the side of the neck? You don’t consider that to be a beating?
MS LAMBERLE: I consider it to be a hit, a punch, or a smack.
MR SLADE JONES: Do you consider it to be child abuse?
MS LAMBERLE: Yes, I do.
MR SLADE JONES: Let’s use that phrase, then. When the father abused your child physically on these occasions, do you not find it remarkable – beggars belief, ma’am, that there are no injuries consistent with the mechanics described by the child to you and others?
MS LAMBERLE: I don’t know.”
As noted, the mother failed to annex photographs to her trial affidavit.
The photographs were not produced by the mother until the call was made by the Counsel for the Independent Children's Lawyer. The mother produced 25 photographs. The mother did state in evidence that she did not know whether the father intentionally inflicted the bruises/marks depicted in the photographs. There is no evidence that he did. I do not consider that the father has caused any harm to the child at all. There is no evidence that would convince the Court that any of the photographs of marks or bruises on the child was as a direct result of any deliberate (or reckless) injury perpetrated by the father or his partner – or anybody else. There is no professional evidence to support the findings sought by the mother. There are, in any event, no photographs of the child consistent with the child being punched by the father with a closed fist in the front of the head, or in the back of the head (sufficient to cause her to fall forward onto her face) or repeatedly in the ribs.
The more likely explanation is that the bruising on the child has occurred as a result of the child’s sensory processing difficulties. It is because of the sensory processing difficulties that the child was seeing an occupational therapist in the first place. I note the following evidence from the mother's trial affidavit:-
“133. In early February 2018, X's doctor, Dr O of P Clinic, identified that X appeared to have sensory processing difficulties. Her sensory proprioception particularly affects her body movement. Dr O recommended X see an occupational therapist. I informed Mr Lamberle of the referral on 13 February 2018 by email.
…
143. X is still demonstrating sensory processing difficulties, particularly in her body movements. For example X bumps into walls and door frames as if she has misjudged the space, drags her hand against walls as she walks, presses her body up to things, like couches, as if to feel them with her whole body, obsessively touches items around her.
…
167. As she comes out of this state, X will display what her psychologist calls 'big' emotions. She cries, screams and her physical reactions tends toward hitting herself. She repeatedly hits her legs or her head. She calls herself names, such as dummy, stupid and idiot. She sometimes flails around in the bathroom, hitting herself or me. When that happens I try to protect her from hurting herself by putting my body or hands in the way of sharp joinery comers. This behaviour occurred almost every Saturday afternoon from May 2017 to about December 2018.”
I also note the evidence of the mother contained from page 288 of the transcript (transcript 11 July 2019 page 288 from line 43):-
“HIS HONOUR: Is this to do with the sensory perception?
MS LAMBERLE: Yes, sir, I did.
HIS HONOUR: Can you sort of describe for me what you see when X – when this happens to X, if she is walking down a hallway, for instance?
MS LAMBERLE: Yes. So down a hallway, she will stick out her hand and run it along the wall as she is walking. If she comes up to the couch, she will come up to it and then sort of roll across the back of it as if to give herself more information about where she is in space. She repeatedly hangs upside down off the couch and she spins. She turns and spins.
HIS HONOUR: Hangs upside down off the couch. Is that just her way of relaxing?
MS LAMBERLE: No. It would give more information to her about where she is in space and which would help her feel more comfortable, but it’s different to when she is just watching a movie.
HIS HONOUR: All right?
MS LAMBERLE: And then she also misjudges the space between the doorframe and sometimes she will walk into the side.
HIS HONOUR: Of the doorframe?
MS LAMBERLE: Of the doorframe.
HIS HONOUR: And hit part of her body, obviously?
MS LAMBERLE: Yes, her shoulders, her sides.
HIS HONOUR: How often does that happen?
MS LAMBERLE: Mostly every week, particularly lately.”
Mr Slade Jones then asked the mother (from page 289 line for line 39):-
“MR SLADE JONES:…(paragraphs) 143 and 167 offer a perfect explanation to some of the bruises, if not all of the bruises, that you and others have seen. Do you agree?
MS LAMBERLE: Possibly.”
The mother went on to say that “but when she has come home from Mr Lamberle, she often has more bruises than through the rest of the week.” (note page 290 transcript 11 July 2019 line 7). This answer from the mother makes it clear to the Court that “through the rest of the week” – that is, when the child is in the mother’s care, bruises are also appearing. This evidence adds weight to the conclusion that the more likely explanation for the child’s bruising is as a result of the child’s sensory processing difficulties – or perhaps other general childhood bumps and mishaps.
In the written submissions on behalf of the mother. There is a heading on page 7, “Physical harm”. The submissions then document the evidence of statements made by the child to the mother and also evidence in relation to statements made by the child to Mr Q. There is also reference to evidence that the child made comments about being hurt by her father to the child’s general practitioner and the psychologist, Ms R. The mother has failed to address (in her written submissions) the fundamental disconnect between the allegations. For instance, that the father had punched the child with a closed fist to the back of the head and to the front of the head and the further allegation that the father had punched the child repeatedly in the ribs. There is a disconnect because notwithstanding these comments made by the child – where is the evidence of these injuries? This issue has not been adequately addressed in the written submissions of the mother. From paragraph 77 of the mother’s written submissions, there is some attempt to convince the Court that some of the photographs were consistent with some of the child’s reports to the mother and/or other people. The photographs do not go anywhere near verifying the allegations made. Repeated punches to the ribs of the child would produce significant injuries – possibly or even probably broken ribs. One would at least expect extensive bruising.
As to the submission contained in paragraph 78 of the mother’s written submissions – there are a number of matters that need to be addressed. It is submitted on behalf the mother that, “…the photograph of bruising around the child’s ribs. This could be consistent with what the child had said to the mother about the father punching or hitting her in the ribs.” I do not accept this submission. To start with, the mother, from paragraph 191 of her trial affidavit refers to the child telling her about being hit in in the ribs. The child was having a shower or about to get into the shower. The mother was present with the child. The mother says that there were no marks around X’s ribs. The submission on behalf of the mother (paragraph 78) is misconceived and contrary to the evidence.
The photograph in question is contained in Exhibit 6. At the top of the document is written, “…_ 9 Jun 18”.
The mother was cross-examined about this photograph from page 356 of the transcript (19 July 2019). From page 358 line 9, I note the following evidence:-
“MR SLADE JONES: The original, in fact, digital photograph on the phone there. Again , referring to that rather large area immediately below the left nipple, do you say you took that – do you say that that is a shadow or a bruise?
MS LAMBERLE: Sir, it’s both. There is a bruise – sorry. There is a shadow here, and then this smaller, darker bit is the bruise.”
The photograph itself was then handed to the mother and in the mother’s own hand she drew a circle around the bruise and indicated in writing where the bruise was situated below the child’s left nipple. The other larger area outlined in pencil is a shadow. There is a small bruise further down the left-hand side flank of the child.
In those circumstances, that photograph is not what one would expect to see if an adult male with a closed fist had repeatedly punched the child in the ribs as alleged by the child.
The mother was not concerned about this bruising to the child’s left side. If she was she would have taken her to the doctor. I note from the transcript (page 341 line 44) that the mother did not take the child to the doctor at all during June 2018. The photograph (because of the shadow) is in itself misleading. The written submission provided on behalf of the mother is not realistic. As noted, the submission is misconceived. It does not address the allegation made by the child. There continues to be a disconnect between comments made by the child and the actual evidence.
The bruising contained in the various photographs is more consistent with childhood mishaps or horseplay – perhaps even some rough horseplay or wrestling (as referred to at one stage by the child). Alternately, it's more likely to have been caused by the child’s sensory processing difficulties as outlined elsewhere in these reasons.
The father was cross-examined at length in relation to the allegations made by the mother. I had an opportunity to observe the father in the witness box. I accept the father’s evidence. The father denies that he has ever intentionally harmed the child. I accept this evidence from the father. I do not believe that the father has punched the child or hit the child. To the extent that any bruising has occurred, the inference I draw from the evidence is that such bruising has occurred on occasions in both households and that the bruising is as a result of accidental childhood mishaps or as a result of the child's sensory processing difficulties whereby she, repeatedly, runs into walls and door frames et cetera.
I have come to the conclusion that there is no evidence to substantiate the mother’s allegations that the father has caused any physical harm to the child. In coming to this conclusion, I am mindful of section 140 of the Evidence Act 1995 (Cth) and of the comments made by Dixon J in Briginshaw v. Briginshaw (1938) 60 CLR 336. I note the seriousness of these allegations made by the mother; the inherent unlikelihood of the father punching the child with a closed fist as described; the lack of evidence of injury to the child that one would expect to see having regard to the allegations made; and the extremely serious consequences of a finding against the father in relation to such allegations. These all do impact the Court’s answer as to whether or not these issues have been proved to the reasonable satisfaction of the Court. As noted, and for the reasons stated, my conclusion is that these matters have not been proved.
During the cross-examination of the mother by Mr Slade Jones – the mother withdrew her allegations against the father or, indeed, withdrew her case against the father that the father had either sexually harmed the child or that he posed an unacceptable risk of sexually harming the child. It is important to specifically refer to the mother’s evidence in this regard. At page 251 of the transcript on 11 July 2019, I note:
“MR SLADE JONES: Is it your belief that your daughter has been sexually abused by her father?
MS LAMBERLE: No.
MR SLADE JONES: Is it your belief that your daughter has been sexually abused by Ms He?
MS LAMBERLE: No.
MR SLADE JONES: Is it your belief that there is an unacceptable risk of harm?
MS LAMBERLE: Yes.
MR SLADE JONES:‑ ‑ ‑ of your daughter being sexually abused by her father?
MS LAMBERLE: No.
MR SLADE JONES: Do you accept – do you believe that there’s an unacceptable risk of sexual harm at the hands of Ms H?
MS LAMBERLE: No.
…”
Under further questioning from Mr Slade-Jones, Counsel on behalf of the Independent Children's Lawyer, the mother told the Court that she had reached that conclusion, having listened to the evidence during the course of the trial from the father's partner and the father. At page 252 of the transcript of proceedings from 11 July 2019:-
“MR SLADE JONES: Yes. You no longer hold the belief that there is an unreasonable risk of sexual harm in the father’s household. I’ve changed the word from “unacceptable” to “unreasonable” for this reason, Ma’am. I read in the family report just that your case is that there is an unreasonable risk of physical, emotional and sexual harm in the father’s household. Was that your position when the report writer interviewed on the last occasion?
MS LAMBERLE: I believe so. Yes.
MR SLADE JONES: Yes. Why do you no longer believe that the father poses an unacceptable risk of sexual harm?
MS LAMBERLE: Due to the evidence that was given yesterday.
MR SLADE JONES: Which bit?
MS LAMBERLE: The further detail about wrestling. The fighting and wrestling.
MR SLADE JONES: You didn’t know about that, did you?
MS LAMBERLE: No. I did not.
…”
The mother’s allegation that the child was at an unacceptable risk of being sexually harmed by the father or in the father’s household was not withdrawn until the mother’s Counsel (Ms Dart) had put each and every allegation to the father. No doubt this was on instructions. I agree with the submission made by Counsel for the Independent Children’s Lawyer (8.2.1) that the mother cannot seriously now contend that she would accept a finding of this Court that the father poses no unacceptable risk of harm.
Various allegations were put to the father in relation to family violence, which he allegedly perpetrated against the mother. The father denied the allegations. I accept the father’s evidence. I am not satisfied that there is evidence to conclude that the father has perpetrated any family violence towards the mother. These parents may have been involved in domestic arguments – especially at that point in time when their relationship was in trouble and they were breaking up. But there is no evidence before the Court (which I am prepared to accept) that the father has engaged in family violence towards the mother or towards the child.
The mother contends that the father has caused emotional and psychological harm to the child. Having regard to the findings made by the Court – I do not consider that these allegations made by the mother have been proved. I will refer to this issue later in these reasons for judgment – particularly by reference to the evidence of Mr Q.
The evidence discloses that the father was extremely upset when the relationship between he and the mother broke down. He suffered from some depression and needed medical assistance. The father admitted to a psychologist (Mr S) that he threw over two pieces of furniture during an argument with the mother. It is clear that when the relationship between the parents was breaking down there was a significant amount of conflict, upset and discord between the two parents. I had an opportunity to closely observe the father giving his evidence. I do not accept that he said to the mother, “do that again and I'll bury you in the backyard”. That allegation was put to him by Ms Dart, Counsel on behalf the mother. It appears at page 100 of the transcript (10 July 2019). The father denied saying that. I accept the father’s evidence. The mother alleges that the father punched walls (leaving dents); punched a front door (causing a fracture of his hand). I accept his evidence that he fractured his hand while training on a boxing bag. I accept the father’s version of events in relation to these various allegations. I do not accept that the father intentionally smashed the mother’s teacups and/or her teacup collection into the sink. I would have to say that the mother has been diligent in photographing marks and bruises on the body of the child. Given the amount of property damage alleged by the mother in this case I find it unusual that the mother does not have any photographs of any of the alleged property damage.
I note that the father admits calling the mother a “cunt”. I infer from the evidence (page 103 of the transcript on 10 July 2019) that the father was requesting that the mother hand a mobile telephone to the child so father could talk to the child. I also infer from the evidence that the mother refused to hand the phone to the child. The father, inappropriately, swore at the mother as indicated. The mother says that the father should have been aware that the mobile telephone was on speakerphone. I do not accept that contention. I accept the father’s evidence that he did not know that the mobile telephone was on speakerphone.
The father accepts that when he was younger he would, on occasions, become angry in a conflictual personal situation. Dr T recommended that he receive 10 counselling sessions. The father attended for two counselling sessions with Mr S.
I accept the father’s evidence (page 107 of the transcript on 10 July 2019) that the child was in the habit of seeking approval from her mother as to whether or not what she (the child) was saying to the father was all right (from line10).
I do not accept that the father monitored use of the mother’s telephone.
Where there is any conflict between the parents in relation to the issue of family violence or property damage et cetera – I prefer the evidence of the father.
There is evidence that the child has been playing with her own faecal matter. I note and accept the evidence of Mr Q contained page 561 of the transcript on 27 August 2019. From line 26, Mr Q stated:-
“MR Q:.… we are… more confirmed in the view that it's highly likely to be reflective of the child acting out in some way – primitive, unresolved angst about – be it the father/daughter relationship, be it the mother/daughter relationship or be at about the co-parenting relationship – if you will, extrapolating it to something like an eating disorder with a teenager and often has issues about control – self and parental control. So it has some parallels later with eating disorders, yes.”
This evidence confirms that the child is, it seems to the Court, suffering from emotional harm. There is no evidence that this emotional harm has been caused by the actions of the father. The conduct of the mother in inspecting and photographing the child on a Saturday (the day the child returns from the father’s care) and the mother’s practice of taking the child to see the psychologist on a Saturday (apparently on at least 40 occasions) combined with the negative view held by the mother and her household concerning the father – these issues and this conduct by the mother are much more likely to be the cause of the emotional harm suffered by the child. In this regard I note that opinion of Mr Q contained in Exhibit 11 in relation to emotional damage or likely emotional damage to the child.
The father and Ms H deny that there is domestic violence occurring in their relationship. I accept their evidence. The father and Ms H appear well-settled as a couple. All couples have verbal arguments on occasions. It is preferable if this does not occur in front of children. Sometimes it does.
I do not accept that the father has been uncaring or in any way neglectful in relation to any of the child’s health conditions or problematic behaviours. Mr Q gave a fair assessment of the different levels of concern expressed by the parents in relation to some of the child’s disturbing conduct – such as the encopresis.
The mother has made a submission (paragraph 182 (d)) that if the Court was to find that there was a culture of belief (against the father) within the mother’s household – the submission on behalf the mother is that there is no evidence to suggest that this has had a profoundly negative impact upon the child’s relationship with the father. I do not accept this submission made on behalf of the mother. Where this negativity within the mother’s household manifests itself is, it seems to me, in the evidence from the mother that the child, increasingly, is stating that she does not wish to go to spend time with the father. In addition, I note the evidence of Mr Q in Exhibit 11, especially in relation to the emotional harm and other forms of harm suffered or to be suffered by the child as a result of the mother’s conduct – as set out in the findings made by the Court.
In M v M (1988) 166 CLR 96, the High Court of Australia considered the notion of “unacceptable risk”. From page 76, the High Court (per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ stated, inter alia:-
“In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 CLR 336. There Dixon J. said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A. v. A.[17]), “an element of risk” or “an appreciable risk” (Marriage of M.[18]), “a real possibility” (B. v. B. (Access)[19]), a “real risk” (Leveque v. Leveque[20]), and an “unacceptable risk”: In re G. (A minor)[21]. This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In the present case Gun J. was not satisfied that the husband had not sexually abused the child. We take that to mean that his Honour was not so satisfied according to the civil onus. On this footing his Honour was unable to exclude the possibility that the husband had so abused the child. His Honour obviously concluded that there existed an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access.”
It will be apparent from the findings made herein that the allegation made by the mother that the father had sexually abused the child has been rejected by the Court as groundless. The mother withdrew the allegation and changed her case during the course of the hearing. I consider, having regard to section 60CC(3)(l), that in the circumstances of this case, it is nonetheless appropriate for this Court to make this definitive finding based on the evidence. The Court’s obligation is to consider the evidence and make a parenting order, noting the various sections of the Act, including sections 60CA and 60CC – with the requirement that in making a parenting order the Court is to consider the best interests of the child as the paramount consideration. The best interests of this child are served by this Court proceeding to make the definitive finding that neither the father nor his partner engaged in any sexual abuse of the child.
Furthermore, as to the other risks of harm alleged by the mother against the father – it will be apparent from the findings made that I have come to the conclusion that that the father does not pose any unacceptable risk of harm to the child. Further, I find as a fact that there is no unacceptable risk of harm to the child in the father’s household.
In making these definitive findings, I am mindful of the factors mentioned by Dixon J in Briginshaw v. Briginshaw (supra at paragraph 336) and I'm especially mindful of the decision of the High Court in M v M (supra from page 76). This is one of those cases in which the Court has no hesitation in rejecting the mother’s allegations that the child has suffered harm at the hands of the father and in the father’s household.
I note the decision of the Full Court of the Family Court of Australia in Stott & Holgar and Anor [2017] FamCAFC 152. As noted, I do not consider that the child is at risk of harm in the father’s household. It therefore follows that I do not consider that the child is at an unacceptable risk of harm in the father’s household. There is therefore no need to further examine (beyond what has already occurred in these reasons for judgment) the nature or degree of risk.
The conclusion that I have come to is that, in fact, there is a need to protect the child from the conduct of the mother. When the child returns from the father’s house on a Saturday – the mother photographs the child. It is not clear precisely what time on a Saturday that the mother does photograph the child. It does not make any difference. Even if a photograph is not taken on each Saturday – I infer from the available evidence that the mother is inspecting the child’s body on a Saturday after the child has returned from the father’s care. As just stated – it makes no difference what time of day on a Saturday that the mother might be inspecting the child. The mother may consider that she is carrying out this inspection discreetly. The child is wearing little or no clothing when the inspection of her body takes place and she is wearing little or no clothing when photographs are taken. I agree with the submission made on behalf of the Independent Children’s Lawyer. This must have a detrimental impact upon the child. It must cast the father in a bad light. It is wrong for the mother to take photographs of the child upon the child’s return from the father. The photographs which the mother did (eventually) produce did not in any way show any significant injury to the child. I note in the subpoenaed material (the police notes – page 175 of exhibit 4) that on one occasion the mother showed police a bruise on the child. I'm not certain whether the police saw this directly or whether they were looking at a photograph. At page 175 of exhibit 4 the police records note, “from our investigation and after consultation with other officers that were involved in interactions with the informant, it is believed the "bruise" is of a small and insignificant nature, caused by domestic discipline from the named person”. The relevant words are “small and insignificant nature”. That is the conclusion I have reached in relation to the bruising evidenced in the photographs.
The father does not photograph the child when the child returns to his household after time with the mother. The father knows that it is wrong to do so. The mother lacks the insight to understand that it is wrong to do so. There is no evidence that the mother understands that it is wrong. This is a risk to the child.
In addition, there is evidence that the child has attended upon the psychologist, Ms R on a Saturday – obviously upon return from the father’s care. The records indicate that upon a review of 81 visits by the child to see Ms R – 40 of those visits took place on Saturday. The evidence therefore reveals that the mother would inspect the child (certainly at some stage on a Saturday upon the child’s return from the father’s care); take photographs of the child (particularly if the mother noticed any mark or bruise) and – on at least 40 occasions – take the child to the psychologist. These matters were all put to Mr Q – the family report writer. I have referred to his evidence later in these reasons for judgment.
I agree with the submission made by Counsel on behalf of the Independent Children's Lawyer that the child’s relationship with the father is under threat from the mother and from the mother’s household. There is a culture of belief in the mother’s household that the father is a bad person. There is a culture of belief that the father is abusive. The child is not shielded from these views expressed by the mother and within the mother’s household. The child repeats these views to anybody who will listen to her. I note the evidence from paragraph 65 onwards of the family report prepared by Mr Q dated 19 July 2018. That report is annexed to an affidavit of Mr Q, filed 10 August 2018. The child told the family report writer various things including the following:-
a)“Daddy was late today which means he didn't care for your time, Mama brought it up and Nanna told her” (Second family report paragraph 65);
b)“Daddy made mummy go away… Made her sick… Mum told me… she's OK now she's away from daddy". (Second family report paragraph 65);
c)According to X, her mother shared her perceptions of the separation in terms of, “he made mummy sick”, while her father, “he just wants her back, but she'll get sick again and I don't want that”. (Second family report paragraph 65);
d)(The child's) mother and grandmother, “don't want me to have play dates” – with (the) father. (Second family report paragraph 65);
e)“He wants sleepovers… Mummy took them away… I don’t know [why]… I didn’t like it until she got me used to no sleepovers.” (Second family report paragraph 67);
f)“Mum told me to tell the truth… that they’re mean… and he punches me… in the forehead… very hard… and he laughs when I get hurt…”(Second family report paragraph 68);
g)“I don’t want to ever see Dad again… because he hurts me”. (Second family report paragraph 70);
h)It is also to be noted that the mother would not agree to allow the child to spend time with the father prior to the child’s interview (note second family report paragraph 64);
i)X is observed to decline to acknowledge Mr Lamberle and Ms H while at the Family Report Rooms with Ms Lamberle and Mrs Lamberle and the adults are seat in the waiting room and another room separately. (Paragraph 64 second family report);
j)The child declined to meet with her father and mother and share her thoughts and feelings with them on the day of the second family report (second family report paragraph 68). The family report writer notes also that it was the child’s account – in relation to the counsellor, Ms R, that, "I make up my stories and she likes them";
k)“I have to go… to talk about dad… things that he does…” (Second family report paragraph 71);
l)“When we go out of here, he’ll punch me… sometimes he punches me in the chest… and\ the back of the head… and he does that at the shops.” (Second family report paragraph 70); and
m)The family report writer says that the child, “Declares an absolute position of being aligned with her mother, and disengaged and estranged from her father.” (Second family report paragraph 104).
I also note two further points from the family report:-
a)It is of great concern to the Court that the child declined to acknowledge the father in the waiting room at the second family report interviews. The child declined to acknowledge the father when the mother and her family were present. The inference which I draw is that the child has come to the view that it is not okay for her to have a relationship with her father when the mother and the mother’s family are present. This is extraordinary given that the child spends two nights a week with the father at present. I agree with the submission made on behalf of the Independent Children's Lawyer. This is a "performance" by the child for the mother and the mother's family. That is the conclusion I draw from the available evidence; and
b)I note paragraph 103 of the second family report where the family report writer notes that the child's “rendered comments strongly indicate that Ms Lamberle passively and/or actively involves the child in discussions about matters.”
I note the handwritten note contained in the subpoenaed material from the Department of Education contained at page 9 of exhibit 4. In that handwritten note it was stated, inter-alia:-
“She (the child) needed a hug from her mum and… she wished that her mum and dad would be together but mum said dad would kill her if they were together."
It is unclear whether the reference to “her” towards the end of the sentence is a reference to the child or the mother. That is irrelevant. There is little wonder that the child is reluctant to spend time with the father. This is a sentiment, a view or a belief which must have been instilled in the child by the mother or within the maternal household. It is inconceivable that the father would have made such a statement.
There is no independent evidence to corroborate any of the mother's allegations of harm or risk in the father’s household.
As noted, the mother took the child to see the psychologist, Ms R. The mother did not tell the father that the child was seeing Ms R. The mother took the child to see Ms R on more than 80 occasions over a number of years. The father had no input into the sessions. The mother says that she spoke to Ms R briefly on most occasions that the child was seen by the psychologist. The inference which I draw from the available evidence is that the mother’s views must have been imparted to the psychologist. There is no other reasonable conclusion to reach.
It must have been apparent to the mother that the father was under the misapprehension that the child was continuing to see a psychologist named Ms U. That much is clear from an email that the father sent to the mother (referred to in paragraph 67 of the mother’s trial affidavit). Ms U had confirmed in writing that she had not provided advice to the mother to withhold X from visitations with the father. Even though the father was under the misapprehension that Ms U was the treating psychologist at the time – the mother did not correct this erroneous view held by the father. This is completely unacceptable. It is the opposite of child focused. The mother was clearly keeping it a secret from the father – namely, the identity of the child’s psychologist. This is further evidence that confirms my view that the mother does not have the ability to foster and support the child’s relationship with the father. The mother holds a very negative view of the father. The mother (and members of her household) convey (either directly or indirectly) their very negative views of the father to the child.
It is also noteworthy that during oral testimony to the Court, Ms R did not accept that she gave the mother the advice to cease the child's time with the father.
The evidence of the family report writer
I have already referred to some aspects of the evidence of the family report writer, Mr Q.
I note paragraph 101 of the report of Mr Q (the most recent report, annexed to an affidavit filed 10 August 2018). In paragraph 101, Mr Q states:-
“101. In regard to parent-child relationship dynamics, and care proposals, it is noted that-
Ms Lamberle invites the understanding that X was, and is, more attached to, dependent on and/or identified with her and Mr Lamberle, and that time with Mr Lamberle, and/or absence from her, erodes or compromises the child's sense of secure, stable parenting.
Mr Lamberle invites the understanding that X was, and is, attached to, dependent on and/or identified with both him and Lamberle, and time with him and Ms Lamberle maintains, reinforces or restores the child's sense of secure, stable parenting.
Ms Lamberle suggests that she does not negatively influence X's thoughts and feelings, or her relationship alignments and .disengagements, with the child reputedly behaviourally and/or verbally expressing her needs, based on her actual direct experiences.
Mr Lamberle suggests that Ms Lamberle negatively influences or confuses X's thoughts and feelings, and/or her relationship alignments and disengagements, with the child reputedly having needs and wishes for relationship opportunities with both parents if unencumbered by external factors.
Ms Lamberle asserts that Mr Lamberle, and Ms H, present unreasonable risks, physically, emotionally and sexually, to X, and she contends that she is taking a protective, child-responsive, stance in proposing no father-daughter contact.
Mr Lamberle contends that he presents no unreasonable risks to X, and he asserts that Ms Lamberle is taking a conflict-focused, excluding stance in proposing limited, conditional or no father-daughter contact or care, allegedly causing the girl psychological abuse.”
Further, I note paragraph 102 of Mr Q’s report:-
“102. Regarding parent-child relationship dynamics, and care proposals, it is additionally noted that-
Lamberle holds the stance that X, should live with her, and have no contact time, and/or relationship, with Mr Lamberle.
Ms Lamberle reveals that she holds no belief or hope that Mr Lamberle is able to develop a parenting capacity and commitment even if assisted by a number of courses, psychoeducational training and/or intensive helping professional assistance.
Additionally, Ms Lamberle reveals that she holds no belief that Ms H is able to demonstrate and/or develop a parenting capacity and commitment.
Mr Lamberle holds the stance that X, should live with him and with Ms Lamberle, or perhaps more primarily with him to protect the efficacy of the father-child relationship.
Contrasting with early-2017, Mr Lamberle now expresses reservations about Ms Lamberle's parenting capacity and commitment, and is reinforced in his concerns being about her willingness to co-parent.”
From paragraph 103 of the family report I note the following evidence:-
“103. It is also noted that Ms Lamberle continues to facilitate X's presentations to selected helping practitioners, immediately after father-child time, and the child's participation in helping professional processes appear to have a focus on father-daughter matters.
It is noted that X has also been the subject of scrutiny by CPIU, DOCS, GP's and/or others in relation to the statutory matters of child abuse and neglect.
In the context of the report, X offers beliefs overall, congruent with Ms Lamberle's account of matters and regarding Mr Lamberle.
X also reveals an awareness of Ms Lamberle's described fears that she will not be "safe" in contact and time with Mr Lamberle, with the girl rendering an account of alleged gross acts of physical and/or other abuse by her father, and reputed neglect by Ms H.
Indications are that X equates time and contact with Mr Lamberle as putting her own and/or Ms Lamberle's well-beings at risk.”
Further, in paragraph 104 of the family report Mr Q states, inter-alia:-
“104. In relation to X, the following are further, offered for consideration-
The child previously, in early-2017, revealed a sense that she has to "choose" one parent, or choose between one or other parent, and she declared, "I don't know what to do".
In this mid-2018 FR, X declares an absolute position of being aligned with her mother, and disengaged or estranged from her father.”
In the recommendations of the family report writer I note paragraph 109 where he has stated:-
“109. It is noted that Mr Lamberle offers overall support for more inclusive outcomes and care arrangements and, in the event that X was in his primary care, it seems that the mother-daughter relationship will be preserved. It is conversely noted that Ms Lamberle offers support for exclusive outcomes and care arrangements and, in the event that X is in her primary care, it seems that the father-daughter relationship will not be preserved or restored.”
Of significance also are the other recommendations contained in paragraphs 110 and 111 of the family report in those paragraphs, Mr Q stated:-
“110. In the event that Ms Lamberle's account is found to be relatively, largely or significantly more reliable, it is recommended that-
• Ms Lamberle have sole parental responsibility for X.
• X live with Ms Lamberle
• X has no time; or has contact centre visits, with Mr Lamberle
111. In the event that Mr Lamberle’s account is found to be relatively, largely or significantly more reliable, it is recommended that-
• Mr Lamberle have sole parental responsibility for X.
• X live with Mr Lamberle
• X has no time, or has contact centre visits, with Ms Lamberle.”
I accept the evidence of Mr Q. I have come to the conclusion (for the reasons stated) that the father’s account is significantly more reliable than the mother’s account.
In his oral testimony, Mr Q was provided with some updating material and was asked additional questions.
I note Mr Q’s oral testimony which commences in the transcript from Monday, 26 October 2019 from page 487. Mr Q was asked (as is the usual practice) to assume that certain findings may be made by the Court and then Mr Q was asked to proffer an opinion if those findings were indeed made by the Court. Mr Q had approximately five days to consider the questions that were posed to him by the Independent Children’s Lawyer. In Exhibit 11, I note that the Independent Children’s Lawyer referred to the findings that Mr Q was asked to assume. Those findings are as follows: –
“1. In the Mother’s household there is a culture of belief that the Father has perpetrated physical harm against X, and that if contact takes place between the child and the Father the Father will continue to pose an unacceptable risk of physically harming X;
2. Within the Mother’s household, it continues to be the maternal grandmother’s view that X has been, or is at risk of being, sexually abused in the Father’s or his partner’s care;
3. This culture within the Mother’s household is on-going and unlikely to change in the foreseeable future, if at all, and has had a profoundly negative impact upon the Child’s relationship with her father;
4. It is unable to conclude that:
(a) such harm(s) have occurred as described by the Mother and/or the maternal grandmother, or at all;
(b) there is an unacceptable risk of harm as described by the Mother and/or the maternal grandmother, or at all;
5. The Father has a capacity /willingness to promote a relationship with the Mother where such capacity /willingness is largely, if not entirely, absent in the Mother.”
It is the case that the Court has made the following findings:-
1.In the mother's household there is a culture of belief that the father has perpetrated physical harm against the child, and that if contact takes place between the child and the father the father will continue to pose an unacceptable risk of physically harming the child;
2.That within the mother’s household, the Court is satisfied that, for instance, the maternal grandmother has not completely given up on the view that X has been or is at risk of being sexually abused in the father’s care. In her oral testimony the maternal grandmother said she no longer believed that the child has been or is at risk of being sexually abused. The maternal grandmother was unable to give a reason for this change in view. This causes concern to the Court. It gives the Court reason to conclude that it is likely that there remains lingering a view held by the maternal grandmother (at least) that the child is at risk of sexual abuse in the father’s care.
3.That the negative views held by the members of the mother’s household towards the father are ongoing and unlikely to change in the foreseeable future (if at all) and have had a profoundly negative impact upon the child’s relationship with her father. The evidence from the mother (and the maternal grandmother) is that the child states repeatedly that she does not wish to spend time with the father;
4.The conclusion I have reached is that the child has not at any time suffered intentional harm in the household of the father. The conclusion I have reached is that there is no unacceptable risk of harm (as described by the mother and/or the maternal grandmother) – or at all – in the father’s household;
5.The father has the capacity and willingness to promote a relationship with the mother. The mother does not have the capacity or the willingness to promote the child’s relationship with the father (so far as the father is concerned – I note that his initial primary position was for an equal time arrangement);
Contained in exhibit 11 is a record of the questions put to Mr Q and the answers provided by Mr Q – noting the findings (that he was asked to assume at that time). Those findings have now been (to a very large extent) made by the Court. The two questions that were put to Mr Q and the answers that he provided are as follows:-
“Questions
1. What are the consequences for X (with respect to her relationship with her father) of living in this environment where, over time, there has been a hardening of X’s alignment with her mother such that as at mid 2018 this alignment was described by you as “absolute” (FR2,104)?
2. Do you consider that if the cost of X living with the mother is that the mother will not promote the relationship between X and the father, then it is in X’s best interest to live with her father and spend time with the mother?
Answers
1. There is a poor prognosis for X if she (erroneously) believes that her father poses a risk in circumstances where the court finds that no such risk exists; this is compounded if the mother fails to accept the court’s decision. If X (erroneously) believes that the father poses a risk to her wellbeing then this will adversely influence her sense of self, both in the short and long term, and this could be very emotionally damaging: her capacity to build future healthy and enduring relationships may become jeopardised, and this would be compounded if X does not have the mother’s permission to choose to maintain otherwise healthy relationships (like the one with her father); this is a risk.
2. It will be difficult for X to form a healthy, complete and whole and positive sense of self if the mother invites X to see the father as in some manner, bad, damaged and negative. That is, as per giving a child figurative building blocks where some are damaged, dirty, broken or missing, if the mother invites X to see the father as being damaged, dirty, broken or missing, these are building blocks incorporated into her building a sense of self given the normative need and task for children to build a self from their parents, families and others.
3. Unless real change occurs in the mother’s thinking, on the current trajectory, the schism between X and the father is likely to widen, and become absolute, and ultimately may become irreversible;
4. I do consider that if the cost of X living with the mother is that the mother will not promote the relationship between the child and the father, then it is in X’s best interest to live with her father and spend time with the mother: it would not be in the best interest of X to live in a household which, or with a parent who, does not value or support a relationship with the other parent.
5. If the court concludes as assumed above and if X lives with her mother under these circumstances, then there can be only one outcome: that X will have either a poor relationship or no relationship with the father, and there is the added risk that she would not be able to form healthy relationships with other people. Whereas, if the child lived with the father and if the court finds the father is able and willing to promote a relationship between X and her mother, then her outcome is far better, in part simply because she will feel supported by the father in her relationship not only with him, but also with her mother and indeed other people.
6. If the court finds that the father has the capacity to promote a relationship between the child and her mother, and that a relationship is in the best interest of the child, then the outcome for the child will then substantially be dependent upon the mother’s reaction to, and her capacity to accept, that outcome: the mother may forfeit any time as a reaction to the outcome, or she may embrace it in time; I hold a worry about how the mother reacts.
7. The benefit of a moratorium following the change of living arrangement has to be weighed against the prospect of X being confused or harmed in the short term by the change itself.
8. A moratorium could last from a few weeks to a few months, and X ideally would need to know how long this is likely to last.
9. Counselling for the mother would be essential for her to accept the outcome recommended, but this is a matter entirely for the mother, and hinges upon her capacity to accept the court’s decision; only time will tell.
10. Whether there is a moratorium or not, the mother should engage professional assistance by a suitably qualified professional to help her understand and accept the court’s decision. The mother should engage in counselling for herself with a fresh professional and with the benefit also of the court’s Reasons and any orders it makes. I recommend the mother engages the services of Ms A, Family Therapist and Counsellor at B Street, Brisbane (Mr Q’s preferred professional). Once the mother makes some progress, then X could be (re)introduced to her mother using the services of Ms C (Mr Q’s preferred professional) to offer some assistance during supervised time to establish the new arrangements; Ms C would benefit from having a copy of the court’s Reasons and any orders it makes to do this, and to commence her work with X before introducing the mother.
11. Thereafter, the father’s proposal for alternate weekend time would thereby be based on a well-established and child focused foundation.
12. It is important for X that she preserves as much as possible all those things in her life that can be carried forward into the new arrangements such as, as many familiar faces as possible (friends, teachers and others familiar to the child), places (maintaining the same schools, sporting venues, friend’s homes etc), and for this to continue onto the future at a pace which suits her needs. This, in the longer term, would help ameliorate the short term shock to X of the change of arrangements.”
I accept the evidence and the opinions of Mr Q. Having regard to the evidence of Mr Q concerning a moratorium of the child’s time with the mother and noting the submission made by the Independent Children’s Lawyer and the draft orders proposed – the conclusion I have reached is that it will be in the child’s best interests for there to be a moratorium of the child’s time with the mother for a period of three weeks. This takes into account all of the relevant considerations highlighted by Mr Q.
For completeness, I will also refer to various other sections of the Act.
Section 60CC(3)(a)
Noting the findings made by the Court it is clearly the case that the child’s primary residence needs to change to the father.
The child's clear view is that she would prefer to live with the mother. The mother has had a significant influence over the child. The primary consideration (outlined in detail above section 60CC(2)(b)) has to take precedence. I agree with the submission made on behalf of the Independent Children's Lawyer that the child’s expressed wishes should be given very little weight.
Section 60CC(3)(b)
I have already made findings in relation to these matters. The child is aligned with the mother and the mother’s views. The child is aligned with the maternal grandparents (at the very least the maternal grandmother) and the negative views held within the maternal household.
The nature of the child’s relationship with the father has been significantly compromised because of the actions of the mother.
Section 60CC(3)(c)
The mother has made the decisions in relation to the child. The father has attempted to participate and to spend more time with the child and to communicate with the child. It has been a difficult task for the father because of the mother’s entrenched negative views of the father.
Both parents have maintained the child – certainly in a physical sense.
Section 60CC(3)(d)
As a result of the findings made by the Court and having regard to the evidence accepted by the Court – including the evidence of Mr Q and his stated opinions (as noted above) there is going to be a moratorium of time between the child and the mother. Mr Q notes that there will be a short-term shock to X in relation to the change of arrangements. But he has made reference to a suggested approach which will ameliorate the short-term shock to X.
Section 60CC(3)(e)
There are no particular difficulties or expenses in relation to spending time and communicating with the parents.
Section 60CC(3)(f)
In relation to the capacity of the child's parents – the father has the capacity to provide for the emotional and intellectual needs of the child. I am less than convinced that the mother currently has the capacity to provide for the child's emotional needs.
Section 60CC(3)(g) and (h) are not particularly relevant.
Section 60CC(3)(i)
The parents have accepted the responsibilities of parenthood – in terms of caring for the child physically when the child is in their care. As to the question of the child’s emotional state – it will be apparent from these reasons for judgment the views that I have formed – especially in relation to the mother’s conduct.
Section 60CC(3)(j) and (k) – family violence
I have already considered this question in detail in these Reasons for Judgment. There is no need to make any further reference at this stage.
Section 60CC(3)(l)
Noting the findings made by the Court and noting evidence of Mr Q there needs to be a change of residence. If there is not a change of residence, it is highly likely that the mother’s negative attitudes towards the father will continue to be conveyed to the child. This will undoubtedly lead to the institution of further proceedings – especially if the child refused or continued to refuse to spend time with the father.
Section 60CC(3)(m) – any other fact or circumstance that the Court thinks is relevant.
There are some further aspects of the oral testimony of Mr Q which should be noted. Mr Q was asked about the fact that the mother was taking photographs of the child. I note the following evidence from page 502 of the transcript:-
“MR SLADE JONES: …What impact might that have upon X, good or bad, having photographs taken as frequently or infrequently as I’ve just read into the record?
MR Q: Clearly I’m limited to conjecture, but it would seem meaningful, I would think, to a child. There must be a reason. There must be a purpose for why we have this periodic process, and the timing, again, you would think – if she’s a bright little one, which I’m told she is, the child would try to make sense, again, of the timing. So what’s happening? Where is it happening? Who’s keeping this record and in what context? So if I’m understanding correctly we have a pattern, and the pattern is she spends time with Dad. After spending time with Dad Mum inspects her or takes photographs and keeps those, and that she’s asked, in a way, to have less clothing or no clothing or whatever the case may be whilst Mum does that. So she’s taking part in a process with her mother. Again, it is conjecture. What sense does she make about why Mum is doing that? There’s an old saying if you plant nothing the garden can only produce weeds. So is it more likely that she will see it as something negative? Will she see it as a – a health inspection? Will she see it as a monitoring? Again, I don’t know, but I think they’re at least possible. And then it’s also possible, if she were to take that view, that it’s something to do with monitoring how she is after time with her father. So I can only assume that it’s reasonable to think that she associates it with her mum checking on how she is after she has been with Dad. The reason I’m, to some measure, comfortable to suggest that’s possible is also that Ms Lamberle did describe to me having formed a pattern where post X’s time with Dad she also would then time X’s follow up counselling or debriefing session with Ms R, which I understand people are using that practitioner’s first name, so if I may. So there was also that pattern, and that was a psychological check-up or follow up, and that that would be in parallel with this perhaps as a physical check-up or monitoring. So that’s as best I think I can, sort of, extrapolate on that.”
This evidence and the opinions stated and the observations made by Mr Q are of great concern to the Court. It is this kind of conduct by the mother that has led the Court to conclude (noting the findings made by the Court) that the child's residence needs to change.
There is no evidence that the father’s multiple sclerosis is having a negative impact upon his ability to parent X.
Section 61DA and Section 65DAA
There needs to be an order for sole parental responsibility. There is no chance of the parties in this case (for the reasons stated) of being in a position to exercise equal shared parental responsibility. In particular, I note, amongst other things, the mother’s negative view of the father and the father’s household.
It is therefore not necessary for the Court to consider section 65DAA. However, for completeness, I note that an equal time order is not in the best interests of the child. Also, whilst in terms of distance between the households, it may be reasonably practicable – having regard to the very negative view that the mother holds of the father – I do not think that, on a proper consideration of section 65DAA that it can in fact be said to be reasonably practicable. Indeed, I find as a fact (noting section 65DAA(5)(b), (c) and (d)) that the parents in this case do not have a capacity to implement an arrangement for the child to spend equal time with each other. The ability of the parents to communicate has been significantly compromised by reason of the mother’s negative view of the father.
The order proposed by the Independent Children’s Lawyer will lead to alternate weekends from Friday to Monday with the mother. Such an order, does probably (just) come within the definition of “substantial and significant time”. Within that limited time frame though – it is an order which (in my view) is in the child’s best interests, and it will be reasonably practicable – primarily because the parents live quite close together and changeovers will be occurring at school.
Conclusion
For the reasons stated I have come to the conclusion that a short moratorium of time (as suggested by the Independent Children’s Lawyer (three weeks)) is consistent with the evidence of Mr Q and should form part of the final orders. The child’s primary residence will change to the father. The father will have sole parental responsibility. Indeed, all of the orders proposed by the Independent Children’s Lawyer are in the best interests of the child, having regard to the evidence and the findings made by the Court.
I certify that the preceding one hundred and thirty-two (132) paragraphs are a true copy of the reasons for judgment of Judge Howard
Date: 26 February 2020
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