Landy and Warhurst

FEDERAL CIRCUIT COURT OF AUSTRALIA

LANDY & WARHURST

[2013] FCCA 2101

Catchwords:
FAMILY LAW – Children – unacceptable risk of harm to child from mother’s conduct, attitudes and behaviours – orders made for no time or communication with mother – presumption of equal shared parental responsibility rebutted – positive risk to child if this parental obligation is shared.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 64B, 65D, 65DAA

MRR & GR [2010] HCA 4
M & M (1988) 166 CLR
B & B [1988] HCA 66

Applicant:

MR LANDY

Respondent:

MS WARHURST

File Number:

DUC 119 of 2008

Judgment of:

Judge Henderson

Hearing dates:

28, 29 & 30 October 2013

Date of Last Submission:

30 October 2013

Delivered at:

Sydney

Delivered on:

9 December 2013

REPRESENTATION

Counsel for the Applicant:

Mr Dalzell

Solicitors for the Applicant:

Campbell Paton & Taylor

Counsel for the Respondent:

In Person

Solicitors for the Respondent:

Counsel for the Independent Children’s Lawyer:

Ms Dart

Solicitors for the Independent Children’s Lawyer:

Mark Whelan Lawyer

ORDERS

All prior orders in relation to the child X born (omitted) 2001 are discharged.
The father shall have sole parental responsibility for the child.
The child shall live with the father.
Any time the child spends with or communicates with the mother shall be at the sole discretion of the father.
The mother is injuncted and restrained from contacting the child’s school or making any report to the Department of Human Services or Police in relation to the child X born (omitted) 2001.
The father may provide a copy of these orders and the reasons for judgment to:
(a)The local Police in (omitted) and (omitted).
(b)The local Police in (omitted).
(c)The Department of Human Services.
(d)The NSW Police Joint Investigation Response Team.
(e)The child’s school.
(f)The child’s psychologist.
The father may provide a copy of the family reports released 23 March 2006, 7 September 2006, 11 October 2012 and 13 September 2013 to the child’s psychologist.
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 Attachment A and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Landy & Warhurst is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT DUBBO

DUC 119 of 2008

MR LANDY

Applicant

And

MS WARHURST

Respondent

REASONS FOR JUDGMENT

This is an application concerning the parenting arrangements for X born (omitted) 2001. X primarily lives with his father and has done so for some 18 months. The father is the applicant and was represented by Mr Dalzell of Counsel. X was represented by Ms Dart of Counsel for the Independent Children’s Lawyer. The mother was self-represented.
Initially the mother’s application was that X live with her, his brother Y, her current partner who is Y’s father, Mr J, near (omitted) and spend alternate weekends with his father and part of school holidays.
The father’s application at the commencement of the hearing was that X remain living with him in (omitted), he has sole parental responsibility and that the mother have extremely limited time being telephone time including Skype.
During the hearing the mother changed her application and said she would relocate with her partner and son, Y, to an area no more than two hours from where the child and father live at (omitted) and that the child live with her and spend alternate weekends with his father.
The father amended his application at the conclusion of the hearing and sought orders that the child spend no time with or communicate with the mother, which orders were sought by the Independent Children’s Lawyer.
At the conclusion of the hearing, the mother changed her application and agreed that her son remain living with his father. She sought equal shared parental responsibility and that the current orders for telephone time on Tuesdays and Fridays and time for half school holidays continue.
I have formed the view, after hearing the evidence and for the reasons which will follow, that the child spending any time with his mother, either by way of face to face time or communication in any form has, and will continue, to expose him to an unacceptable risk of harm from the mother.
The unacceptable risk of harm comes from the consequences falling upon the child of the mother’s behaviour, choices and how she chooses to discharge her parenting obligations.
Firstly, X has been subjected to three JIRT interviews commencing when he was 4 years of age and all three have their origins in allegations made by the mother. The first two interviews were as a direct result of the mother’s reporting of alleged behaviours of her son and others to authorities.
The third interview in February 2013 was as a result of allegations made by others concerning the child’s behaviour however the mother has compounded the risk to X by her embellished and most concerning further allegations of the child’s behaviour to authorities.
Secondly, X has been exposed to pressure exerted on him by his mother to make a decision about where he wishes to live and to prefer one parent over the other on an ongoing basis for many months if not years.
Thirdly, X has been exposed to the mother’s poor language, derogatory comments and extremely negative attitude to the father and his family. The mother denigrates them to X when speaking on the telephone and calls his paternal family “scum”, “nothing but scum”, “fatty”, “dirty”, and “poor” on an ongoing and continuing basis and is unfortunately joined in this behaviour by her partner Mr J.
Fourthly, the mother has failed to promote the child’s educational needs when he lived with her in the years 2005 to 2011. The evidence is the child missed school for between 60 and 70 days each school year being more than one full year of school whilst in her care.
Fifthly, the mother has prioritised her needs, desire to have the child live with her and be estranged from his paternal family over the child’s most basic needs and has to use the words of Mr W in his report of 29 March 2006, carried out what Mr W foretold and I quote:
Ms Warhurst appears so intent upon regaining residence of X that she is prepared to engage in the seemingly deliberate and damaging tactics to achieve that end.
The evidence I read was as follows.
For the father.
Initiating application filed 30 November 2011.
Father’s affidavit filed 2 October 2013.
Affidavit of his wife, Ms I filed 3 May 2013.
Affidavit of his father, Mr T filed 3 May 2013.
Affidavit of his mother, Ms R filed 3 May 2013.
Case outline document.
The father’s exhibits.
Father’s Exhibit 1 – a photograph of the father’s licence and an email dated 4 October 2013 sent to the Legal Aid office by persons unknown.
Father’s Exhibit 2 – a calendar of absences of the child from school in 2006, 2007, 2008, 2009, 2010 and part of 2011 from (omitted) Public school (omitted) when the child was living in the mother’s care.
The father, his wife and both grandparents were cross-examined.
For the mother.
Her response filed 30 November 2011.
The mother’s affidavits filed 3 October 2013, 7 June 2013, 6 March 2012 and 18 October 2011.
Affidavits of her partner, Mr R, filed 3 October 2013, 7 June 2013 and 6 March 2012.
The mother’s exhibits.
Mother’s Exhibit 1. A hand-drawn sketch by the grandfather of the grandfather’s home showing his office, the grandmother’s room and the back room where X makes phone calls to his mother on most Tuesday evenings.
The Independent Children’s Lawyer tendered the following exhibits.
ICL Exhibit 1, unfiled affidavit of Mr R dated 24 May 2013.
ICL Exhibit 2, unfiled affidavit of the mother dated 24 May 2013.
ICL Exhibit 3, handwritten notes the mother asserted she took at the time of her interview with the child on the night of 16 January 2013.
ICL Exhibit 4, an assessment record from the Department of Community Services dated 27 May 2005.
ICL Exhibit 5, a Department of Community Services record dated 2 April 2008.
ICL Exhibit 6, New South Wales police report dated 8 February 2013.
ICL Exhibit 7, Joint Investigation Response Team secondary assessment dated 16 March 2011.
ICL Exhibit 8, COPS event risk of harm report including various documents and an interview on 1 February 2013.
The various documents in ICL8 were:
(a)The allegations of inappropriate behaviour by X with Ms A, the niece of the mother’s partner, Mr R being touching Ms A on her left inner thigh.
(b)A COPS event record dated 31 January 2013 of the mother’s attendance and reporting of behaviour of her son with Ms A to the (omitted) Police.
(c)A risk of harm report of the allegations made by the mother of Ms A on 16 January 2013.
(d)A community services summary of their interview with X on 1 February 2013.
(e)SDM risk assessment created by the Department of Community Services on 1 February 2013.
(f)DOCS information summary dated 4 February 2013 and the JIRT document from (omitted) JIRT team being a history of this family’s involvement with the Department.
(g)LPRD briefing on the date of 11 February 2013 following the conclusion of the investigation concerning allegations of X’s behaviour with Ms A.
Four family reports have been prepared in this matter, an extraordinary number of reports and interviews for X.
All reports were prepared by Mr W, a most experienced and insightful consultant. They were marked “Court Exhibit 1” being the family report dated 29 March 2006, 7 September 2006, 11 October 2012 and 13 September 2013.
The mother and Mr R were cross-examined as was Mr W.

Short Chronology

The parties commenced in a relationship in about February 2000. Their son, X, was born on (omitted) 2001. There is a dispute about separation, but that is not a matter I need to determine.
The mother and Mr Landy moved to (omitted) in November 2001 after the birth of their son. The father’s parents have always lived at (omitted). The parents separated either mid-2000 or some time in 2004.
Parenting proceedings were commenced in the Local Court at (omitted) in December 2004 as the mother alleged the father had withheld the child from her.
On 27 May 2005, the Local Court at (omitted) made orders for X to live with the father. On the very day these orders were made, the mother made allegations to the Department of Community Services that the father had exposed the child to inappropriate sexual behaviour in that he had required the child to lick the vagina of his then partner, Ms L amongst other matters. Following these allegations the Department and JIRT interviewed the child for the first time. The authorities dismissed the allegations the mother made.
The matter was then transferred to, as it then was then, the Federal Magistrates Court and the first family report is prepared by Mr W in March 2006. A second report is released on 7 September 2006.
On 12 September 2006 consent orders are made in the Federal Magistrates Court that the child was to live with his mother and spend each weekend with his father with the father to collect him from school on Friday.
The orders further provided that the mother was to continue to attend upon a therapist, she having suffered some difficulties with her mental health and functioning in March 2000 and February 2005. The mother be restrained from leaving (omitted) permanently with the child and restrained from approaching the child’s school on any occasion the father was to be there. The parties were not to denigrate each other and there was a prohibition on the consumption of alcohol whist the child was in their care.
The mother wrote to the father in January 2008 requesting that she be permitted to relocate to (omitted) with X and the father refused to consent to the mother’s request.
Almost immediately upon this refusal the mother withheld the child from the father. Her allegation then and reiterated in the witness box at this hearing and on many occasions elsewhere was that she took this action as:
(a)The child was scared of the father.
(b)The father was violent to the child
(c)The child had threatened self-harm if he was made to go to spend time with his father.
In answer to the mother’s allegations the father commenced contravention proceedings in the Orange Local Court. At a contested hearing the mother was found guilty of contravening the orders, or in other words her allegations of risk were not accepted by the Court.
The matter was transferred to the then Federal Magistrates Court.
The mother had made a report to the Department of Community Services that her son was threatening self-harm in early 2008. Although that report did not result in another interview of X it forms part of the public record about this child which is most unfortunate as these allegations were not accepted by the Local Court Magistrate.
The mother was clear in her evidence in the witness box about these events. X was frightened, he was going to hurt himself and she was thus justified in so withholding him from the father.
Upon the transfer to this Court the mother made an application on 11 December 2008 to re-open the case. This application was dismissed by Judge Sexton as she now is and the 2006 orders were continued.
In June 2010, the mother assaulted the father. The father brought proceedings against her and she was found guilty of assaulting the father and an AVO was granted to the father for his protection.
The mother was cross-examined on this incident. She said the time of the assault was at changeover. She believed the father had raised his hand to hit the child, she slapped him across the face, he spat in her face and she kneed him in the groin. Whatever the truth of these events it is clear the child witnessed this display of poor behaviour commenced by the mother.
In January 2011 changeover was occurring at Interrelate. The mother alleges that on return of the child to her care, she observed tyre marks on his foot and the child told her the father had run over his foot with the car as a form of punishment.
The mother made a complaint to the Department about these allegations and the child was interviewed for a second time by the Joint Investigation Response Team. The allegations were found to be unsubstantiated and no further action was taken by the authorities.
The mother absconded with the child to (omitted) shortly after these allegations were made and from late January 2011 to November 2011, the child spent no time with his father as the father had no idea where the mother and child were. It was not until the middle of 2011 that the mother’s whereabouts were found as a result of a location order.
The mother had unilaterally and without notice to the father relocated X permanently from (omitted) to (omitted). Her reason for so doing are set out in her affidavit filed in the Local Court in (omitted) on 18 October 2011 and I read from paragraph 29:
I moved to (omitted) to the (omitted) area in June 2011 due to the death threats from the applicant. Also because my son is very petrified of the applicant as to what the applicant may do to him due to the nature of the threats made by the applicant to my son the last time he saw my son. We packed up and moved.
A recovery order was issued via the Orange Local Court on 14 November 2011. The mother was in Court on the very day the recovery order issued. Even after the recovery order was issued and orders made placing the child in the care of the father the mother returned home to (omitted) and made no arrangements for the child to be returned to his father’s care in an orderly fashion. The mother said she was waiting to find out what to do having made no enquiry from anyone as to the least disruptive way to have her son come into his father’s care. The mother agreed she merely waited for the police to attend her home and, effectively, arrest the child, notify the father and he then collected his son from the (omitted) Police Station.
X did not spend time with his mother from November 2011 to April 2012. The matter was listed for an interim hearing on 30 March and His Honour Judge Dunkley ordered the child live with the father, he have sole parental responsibility and suspended all prior parenting orders.
Additionally he ordered the child spend time with his mother for half of the school holidays.
The matter was listed for trial in October 2012 and marked not reached and is only now being heard.
X’s brother, Y, was born to his mother on (omitted) 2012.
The father married Ms I on (omitted) 2012.
In January 2013, X commenced (omitted) High School.
On 16 January 2013, an allegation was made that X had inappropriately touched a child Ms A on the left thigh. Ms A is the niece of the mother’s partner, Mr R.
That incident was referred to the Department of Community Services and the police by Mr R’s family. The matter did not proceed as Ms A’s mother refused to permit her 6 year old child to be interviewed. This protective position is in stark contrast to X’s mother’s behaviour.
On 31 January 2013 after returning the child to his father the mother made a further report to (omitted) police that X told her on 16 January 2013 or the early hours of 17 January 2013 he had not just touched Ms A on the left inner thigh but had pulled her pants down and licked the crease between her vagina and left thigh.
Secondly that he was watching pornography at his father’s home on his father’s phone and thirdly had observed naked bodies and people having sex in his father’s home.
These allegations together with the initial allegations resulted in X being interviewed for a third time by the Joint Investigation Response Team. Nothing has come from those allegations save that there is a possibility that the child’s name may be placed on the young person’s sexual offenders register and thus the ICL requested I provide written published reason to be provided by him to the relevant authorities.
It is both sad and appalling that X at age 12 is being considered as a young person worthy of being placed on this register due to the actions of his mother. Mr W’s foretelling that the mother was so intent upon regaining residence of X she is prepared to engage in seemingly deliberate and damaging tactics to achieve that end, have proven to be correct.
Sadly and secondly, the father’s position in 2006 that although the mother was a good mother, he believed the child would be safer with him, have also proven to be correct.
The father is in a very different place and is a very different man to that he was in 2005 to 2007. He has matured significantly and his focus is clearly on his son. He has been patient and calm despite the mother’s campaign to malign him and his family and use X as a weapon against him. The father now understands that as Mr W said in his first report:
X was so tainted by parental influence that his wishes cannot be relied upon and it’s recommended that the court place no weight upon them.
The mother to this day does not accept this to be true and she has continued to exert pressure on her child to pick between his parents.
Mr W said at that time:
Both parents appear to have placed their own needs and interests ahead of X’s.
I am pleased for X that this is no longer true for the father and he no longer engages in that behaviour. His wife was the most impressive of all the adults in X’s life and her role and influence has been a positive for the father and X.
From Mr W’s report of 13 September 2013 it is clear that:
The father had shown X one of the mother’s affidavits...
That was poor conduct on his part. Mr W properly admonished the father for this and he acknowledged in cross-examination this was wrong and harmful to the child.

The mother does not have X’s needs at the forefront and continues to put her needs before the child’s and has recruited others in her campaign to have her son removed from his father’s care no matter what the cost. Even if the cost results in harm directly upon X.
At paragraph 50 of his report Mr W says:
The material which has been produced on subpoena suggests a history of vexatious allegations made by Ms Warhurst to the Department of Community Services and the police between 2005 and 2013.
Specific examples include a report to the Department on 27 May 2005 of the child being required to lick his father‘s girlfriend Ms L’s vagina. This report was made immediately after the Orange Local Court made interim orders for X to live with his father. The result was that X did not return to his father’s care on the basis of allegations which were later found not to be substantiated at any level.
Allegations made in 2008 that the child was frightened of his father, threatening self-harm were allegations dismissed by a Court and the Department.
On 8 January 2011 the mother makes allegations that the father had run over the child’s foot as a form of punishment together with further allegations of being exposed to inappropriate sexual matters in his father’s care, which claims were discredited by the Department.
After these claims were discredited the mother de-camped to (omitted) when it became clear to her no one in authority accepted her allegations and X would be spending time with his father.
Then comes the further allegations made in January 2013 that X had been exposed to further pornography at his father’s home, witnessed his father having sex, had been forced to lick Ms I’s vagina and of course that X had licked the crease between Ms A’s vagina and left thigh.
As Mr W points out, none of these allegations have been substantiated and most are considered by the investigating authorities to be false and/or deliberately manufactured by the mother for her own purposes.
Reading from paragraph 51 of Mr W’s report:
Perhaps the most troubling of all the allegations made by Ms Warhurst, involves the observations that in her two 2005 claims, X had participated in oral sex with the father’s friend Ms L. That has more recently morphed into the allegation that X participated in oral sex with his father’s partner, and now wife, Ms I.
I add to that the mother’s reporting to the (omitted) Police on 31 January 2013 that her son had licked the crease between Ms A’s inner thigh and her vagina as a further morphing of licking Ms L, Ms I and now, Ms A. Mr W agreed with this in evidence.
All these allegations have been raised by the mother only and no one else. As Mr W notes when X was interviewed on 1 February 2013 about the allegation of licking Ms I’s vagina, he did not refer to having participated in sexual activity with Ms I but, rather, reiterated as Mr W noted five times the long discredited claims from 2005 about oral sex with Ms L.
Mr W raises the question, “How could the mother have believed X was having oral sex with Ms I in 2013 if X himself, was only talking about allegations concerning Ms L in 2005?” One explanation may be because the mother has made up what she says her son told her on every single occasion from 2005 to date.
Mr W further reports :
Even if one accepts that Ms Warhurst did not manufacture these allegations, her willingness to accept such extraordinary claims at face value, notify them to the police and child protection authorities thereby causing X to be repeatedly interviewed about these allegations by JIRT, suggests she is prepared to expose X to a form of process abuse in the greater cause of having him returned to her care and, possibly, seeking to terminate his relationship with his father. Furthermore, there are strong indications that Ms Warhurst and her partner continue to denigrate Mr Landy verbally in X’s presence by referring to him using the pejorative term “scum”.
The mother vehemently denied to Mr W in all the reports that she has ever used the word “scum” to refer to X’s father or his family. However, in oral evidence, she said, “I used to use that word”. I make a positive finding today that she has continued to use that word and has co-opted her partner, Mr R into using that same word.
At paragraph 25 of the last report Mr W says:
X was asked whether either of his parents ever say negative things about the other. He replied, his father does not say anything negative about his mother, ‘because Dad says, he can’t find the time to say bad things about her.’ ‘Mum is always abusing Dad and she calls him “scum”.’ When asked how this makes him feels, X said, ‘It kinda does affect me. It makes me feel bad.’ When X was asked whether he likes his mother’s partner, Mr R, he described him as good, but said he also speaks negatively about his father and refers to his father as, “the scum and fat boy” the same as Mum.
X said to Mr W at page 8 of the family report dated 29 March 2006:
X said without prompting. ‘I want to live with my Mum and Mr G. I don’t want to live with that scum of a father because he slaps me around’.
Since 2006 the word ‘scum’ has been used by the mother in reference to X’s father. When one reads these paragraphs with paragraph 65 of the father’s affidavit of the conversations he has recorded of his son with his mother, it is abundantly clear that the mother and Mr R refer to the father and his family as “scum” and that they continue to pressure this boy to make a call as to where he wants to live. The use by the mother of the word “scum” in reference to the paternal family was spoken of by X in the 2006 family report and is a long standing position of the mother and is what she believes today.
I simply do not accept the mother or Mr R’s allegations that they have never used those words to X to describe his father or paternal family. The weight of the evidence is against my accepting their oral evidence. I have no faith that either will prevent the other or desist themselves from so doing in the future.
I said to the mother in the witness box, “Do you not realise when you use the word ‘scum’ about X’s father, you’re upsetting him because he’s part of you and part of his father?” The mother could not accept that proposition and did not agree or perhaps understand this to be the truth.
X told Mr W at the last family report interview that his mother had told him when he was 13 he could make his own decision about where he is to live. When told this was incorrect he said, “It does suck. I don’t want to do that”.
X referred to many occasions of his mother:
Asking me to choose between them. Mum kept going and going. She says, “The day will come when you have to choose between us.” But, I don’t want to choose between my parents.
The mother has had this report since 13 September 2013 and yet denied in her evidence in Court asking her son to make any such choice. The mother said X was lying. I do not accept the mother’s story and prefer X’s which is consistent with all the evidence and the history of the matter. I find the mother has continued to pressure this boy, on every occasion she can, to make a choice.
In the 27 May 2005 report to the Department, the Department discredited allegations the child was made to lick Ms L’s vagina. The notes say X told police he digitally penetrated Ms A and that Mr G put his finger in Ms L’s doodle as well. The Departmental officers noted the timing of the mother’s allegations were most suspicious given the Local Court at Orange had made an order that the child return to his father’s care.
The Departmental report opined something had happened, but they were unclear as to who the alleged offender was as the mother was living with a man called Mr G at that time.
In 2006 the mother was most supportive of her then partner Mr G. Mr W reports at page 4 of the report of 29 March 2006:
She’s currently in a relationship with Mr G. ‘He spent some time in jail, about 10 years in jail for armed robbery or something like that, but I have no concerns about him now.’
X made all sorts of allegations about his father slapping him around in this 2006 report which Mr W said could not be relied upon in any way.
However, in her oral evidence and affidavit filed for these proceedings the mother said Mr G was a controlling and difficult man who caused her significant problems and his bad influence was one of the reasons she moved without notice to the father from (omitted) to (omitted) in February 2011. The mother said Mr G was making death threats to her and had been making them for some time from when they separated in November 2010. I note the mother has morphed these death threats into death threats from the father in her affidavit sworn in the Local Court in November 2011 and I reject her evidence that the father was making death threats.
The mother knowingly exposed her son to the behaviours of this man who is now deceased and told no one at the time of his concerning behaviours only after the event does the father find out the concerning behaviour of Mr G.
It is hardly surprising then that in the report of 7 September 2006, she described her son as:
A very emotionally confused little boy. Very emotional, he’s a very mixed up little boy and at least some of the problem here is Mr Landy’s insistence that X not tell his mother anything about what occurs at his father’s home. She said X was not doing well at school either, behaviourally or academically. She claimed he had been involved in disputes with other children which has led him to being physically excluded. She put a lot of hard work into his reading and writing but not being supported by Mr Landy.
The evidence as to X’s schooling issue and reason for his poor performance is to the contrary. Since X came into his father’s care, in 2011, his attitude towards and capacity for school work has rapidly improved. His father described in his affidavit and oral evidence that his son could simply not write properly in November 2011. He couldn’t form his letters. He couldn’t form his sentences. His writing was messy and he has spent much time with his son assisting him with handwriting. All agree X is left handed. The father said he had a poor attitude to school, a poor attitude to doing well at school and a poor attitude to completing school work.
Since attending high school, he has rapidly improved. He is a bright and able student and excels at mathematics. He is very focused on his school and school work, focused on sport and he is now engaging in what might be regarded as normal activities for a boy of 12.
He told Mr W, in the report of 13 September 2013, that “his mum wouldn’t let him play organised sport because she thought it was too dangerous”. He is now very much enjoying the activities that he is engaged in and wants to continue to live with his dad in (omitted). The wish to remain living with his dad was as clear as bell.
He said to Mr W, at paragraph 20:
He attends (omitted) High. He likes maths the most. He has named seven friends before adding that he had even more. Can’t remember all of them. When he’s not at school, which he really enjoys, he has spoken enthusiastically about playing soccer on the weekends and playing in the semi-finals on the forthcoming weekend. He enjoyed rugby league. Considering to switching to league next year and he noted when he previously lived with his mother, he is not allowed to play organised sport because she thinks that it was too dangerous for him. When asked how he got on with his father’s wife, Ms I, he described her as ‘Fine. We get along good. She’s very nice.’
This is all so positive and pleasing for X.
When X lived with his mother in 2006, 2007, 2008, 2009, 2010 and the majority of 2011 he was attending (omitted) Public School. By the orders the father was to have the child each weekend and was to collect him from School on Friday. I accept that on many occasions the mother removed the child early from school on a Friday. She said it was her habit to take her child home for lunch. That is itself, a concern to the Court that the mother could not leave her child at school to play with his friends. It is hardly surprising he was having trouble making friends in these circumstances.
Of the greater concern however, is that from a reading of the school reports the following emerges.
In 2007, the child had a total of 70 days absences. 14 of those were unjustified. This is nearly three months or a whole of a school term in one year. In 2008, he had 68 days school absences with 29 of them unjustified. Another three months of a school year. In 2009, he had 63 days absences where 26 were unjustified. Again, nearly three months of the school year.
In 2009 he had 63 days absences where 26 were unjustified, again, nearly three months of a school year. In 2010 he had 63 days absences of which 20 were unjustified, and after June 2011 he had 19 whole days and eight partial day absences.
I have calculated during the time the child lived with his mother he missed over a full year of school. This is tantamount to neglect and borders on abuse. It is a significant failure to carry out a most important aspect of parenting to provide for a child’s educational needs.
It is thus not surprising when the child came into the father’s care in late 2011 he had a poor attitude to school, a poor attitude to attending school, and could not even write at a most basic level. His mother had failed him miserably with his attendance at school. When this abject failure was put to her in the witness box, she had no answer.
Mr W agreed if the father’s allegations of the mother pressuring this child to make a choice between he and she, referring to the father and his family as “scum”, causing the child to be interviewed on at least two occasions by the Joint Investigation Response Team as a result of her unsubstantiated allegations, her further embellishing allegations of the child’s behaviour towards Ms A in January 2013 were established, the Court would need to balance X’s right to the benefit of a meaningful relationship with his mother with the risk of harm to X in spending time with or communicating with his mother.
Mr W said X has a close relationship with his mother, Mr R and his brother Y enjoys spending time with them and benefits from that time however Mr W was clear that this benefit would be outweighed by the significant risk of harm to the child being with the mother or communicating with her because of the consequences for the child of her behaviours as outlined in the preceding paragraph.
The mother’s last allegations that X told her he licked the crease between Ms A’s vagina and left thigh is of such a magnitude that it has the potential to cause X being placed on a young person’s sexual offender’s register. This consequence is something the mother had not even contemplated in her campaign to have her child returned to her care and out of his father’s care. When this consequence was put to the mother she gave no reply.
Although X has an excellent relationship with Mr R, he is very fond of Mr Landy and he and Mr Landy engage in excellent activities unfortunately he has been drawn into the mother’s web of deceit and intrigue and he believes X is at risk of harm in his father’s care, when the reality is the risk of harm to X is in his mother’s care.
When it became clear to the mother that Mr R’s story of the events of 16 January 2013, the night of the Ms A allegations, were very different to hers, she said Mr R had got it wrong and he was lying. This is similar to her comment that X was lying when he said she and Mr R called the father “scum”.
Mr R’s evidence of this night was as follows. At about 8.30pm his mother attended their home and told them what had happened. X’s name was mentioned, Ms A freaked out and when asked why she said he had touched her on her inner left thigh. Mr R said he, his mother and the mother spent about an hour and a half talking about the allegations and what had happened. He then said he and the mother interviewed X and, to use his words, “We kept asking. What did you do? What did you do? What did you do?” Mr R’s description of the interview it was a grilling. Mr R said they kept this up for about 4 hours.
Under cross-examination by Ms Dart it became clear that the mother and he did not begin to question X until around 10pm and 4 hours from then is 2am, the early hours of the next day.
After this four hour grilling Mr R says X said, “Yes, this is what I did, I touched Ms A on the thigh, I don’t know why I did it.” Mr R was clear this is what X said to him, “I touched Ms A on the thigh”.
The mother’s evidence was that the grandmother turned up at 8.30pm and spoke to her and Mr R about what Ms A had said. This conversation lasted for about half an hour. The mother alone spoke to her son and Mr R was not present. Not only did she speak to her son, she said she took contemporaneous notes of the conversation with X which took about an hour. Her evidence was that X said he had “licked her near the crease between her thigh and vagina; he pulled down her pants and did not know why he did it”. This is what she reported to police 14 days later amongst other things.
The mother is the only person who makes this allegation. Mr R, or via him, his mother, or via them, Ms A’s mother, make that allegation. Only the mother. Her contemporaneous notes were highly suspicious being written with the same pen in the majority of cases that she was using to take notes at this hearing and I reject her assertion that these notes are true cotemporaneous notes.
When it was put to the mother that her story and the events of that night from she and Mr R were very different she said Mr R got it wrong or he was lying; he didn’t have his affidavit unlike everybody else, so he got confused.
The mother’s allegations that X licked Ms A is a concoction by the mother which concoction commenced in 2005, was further perpetuated in 2011 and continued in 2013 as part of her campaign to have her son returned to her care and extinguish his relationship with his father.
The mother asserts she is the only truthful witness. X was lying when he told Mr W that his mother and Mr R refer to his father and father’s family as “scum”, Mr R was lying about the events of the night of 16 January 2013, Mr Landy and Ms I tell lies and deny X watches pornography on his father’s phone, sees his father having sex, is made to lick Ms L’s and Ms I’s vaginas by his father.
The weight of the evidence is against such a finding that only the mother is the truthful witness. It is the mother who does not tell the truth. It is the mother who embellishes. It is the mother who engages in falsehoods. It is the mother who uses anyone she can to assist her in her campaign to have her son returned to her care and excised from his paternal family and father. The mother is at the centre of the web of deceit and lies and no one else. Mr R was an open and honest witness who has been drawn into the mother’s web of deceit and lies.
When I contrast Mr R succumbing to the mother’s manipulations with Ms I’s child focused and thoughtful attitude, the difference is stark. Mr R said that X had called him dad and he was happy for him to call him dad. I find X does call Mr R dad, this is encouraged by he and the mother and in a telephone conversation the father recorded when the mother and Mr R knew the father was listening he was asked “What do you call X up here at your home”. The mother and Mr R could see nothing wrong with this pressure and the mother’s justification was:
Mr R is a role model to my boy; he acts like a father to him.
Ms I on the other hand says she calls X “X”. The reason she does not call him X is because that is his mother’s name for him and she does not want to cut across that important name for him by his mother. The insight into the child’s needs shown by Ms I is exemplary and is in stark contrast to the self-absorbed needs of the mother overtaking her son’s needs.
Thus in the father’s household we have a father who has learnt the error of his ways and has retrieved the situation for himself and his son. A father only focused on his son’s best interest and not his own needs, with a supportive, insightful and impressive wife. Additionally, X has loving and caring paternal grandparents and a grandfather who is much focused on protecting his grandson.

In the mother’s household we have this severely dysfunctional parent who is unable or unwilling to filter fact from fiction, is willing to sacrifice her son to gain what she wants namely him living with her and having no time with his father, and a partner who although has much to offer the child, has been embroiled in her web of intrigue and deceit.
There is no contest. Mr W recommended the child’s best interests can only be promoted and protected if he remains in his father’s care which is the position the mother adopted at the close of the hearing as she knew her residence application case was untenable.
The issue now is should X spend any time with his mother. Mr Dalzell said this is unacceptable risk case going into the future and this is correct.
The Independent Children’s Lawyer put forward exactly the same position as the father and set out in her submissions what the risks to the child are into the future in having any form of time or communication with his mother. The risks as found all emanate from the mother’s conduct, choices and behaviours and no one else.
The risks into the future are in part informed by the risk he has been exposed to in the past and the correct assessment of Mr W that he doubts the mother has the capacity to change.
The mother agreed she had asked her son, in February and March 2013, if he had spoken to the police or the Department of Community Services. The mother pressed the child to find out what the results of the investigation were, an investigation which may have resulted in the child’s name being placed on a young person’s sexual offender register. The mother showed no insight into the appalling behaviour she was exhibiting when pressed on her motives in cross-examination. The mother was unmoved when this possibility was put to her and showed no sign of remorse, regret or insight and I find and she will do exactly the same thing again if an opportunity arises.
This lack of insight is itself a significant risk of probable and likely harm to the child into the future. The mother has no capacity to protect her child and cannot be trusted with him as she displays no understanding of the harm she has perpetrated upon him already by her actions.
The mother is still where she was in 2006. The mother has no respect for the father as the child’s parent, no respect for the father’s family and no respect for her son’s right to have a relationship with his father. The mother can see no benefit whatsoever in this relationship. Despite her tearful submissions to me that she now understands what she has done, that is it wrong, she has harmed her child, that she will attend counselling, she will rectify the situation, and I should give her a second chance, I cannot do that. The mother was firm in cross-examination and never once took a backward or reflective step. Her every action was justified and/or others were lying.
Father’s Exhibit 1 is an email to Legal Aid. This is a document the father believed the mother falsified. The e-mail is from an account not known to the father and reads: (omitted). It was sent on Friday, 4 October 2013, to complaints, subject - My Legal Aid:
Hello, my name’s Mr Landy and my address is (omitted), (omitted). My new address is (omitted), (omitted), New South Wales. My date of birth is (omitted) 1978. My case number is – I’m not aware of my Legal Aid reference number but I need to cancel my Legal Aid as I believe I’m no longer eligible as I’m working fulltime, am now married and able to pay for my own solicitor. Please find enclosed a copy of my driver’s licence as proof. If I have sent this to the wrong email please forward it to the correct department, I want to do the right thing.
Attached to this e-mail is a photograph of the father’s licence sitting on a lounge which has the same fabric as a chair from his home. The father can only assume, X, took this photograph, an unknown person got hold of it in an unknown way and sent it to Legal Aid. The father believes the mother co-opted the child into taking the photo and she is responsible for the false letter. The matter is with the police and I can only hope the child is not again interviewed by police.
The mother denies any involvement. I am unable to make a finding on the criminal standard, however I say this. The father is represented, has always been represented. It is inconceivable he would have written to Legal Aid seeking to terminate his grant when he was represented.
Secondly, these proceedings have been hard fought by him and this is the last event. It is inconceivable he would have jeopardised his son’s future and sent such a letter.
Thirdly, this type of behaviour and event is consistent with the mother’s behaviour in the past of taking any course of action including making up falsehoods to ensure her son is returned to her care.
If the mother has orchestrated this strange series of events it would present significant risk of harm to the child as the mother has enlisted his help and overborne him in the past to make false allegations of the father hitting and slapping him and this may be but a further example of that behaviour.
The father was open and honest that when he and Ms I married, a spur of the moment thing, it was a bit difficult for the two families to blend together; Ms I has a boy, Z, who’s about aged 8, and X is aged 12. The father said they had to keep a close eye on the boys, they fight like boys do about toys and games, but he believes they are settling down as a blended family and the boys appreciate and spend time with each other. X said to Mr W in paragraph 21:
In relation to Z, X said, “Yes, we get along,” despite the four year difference in their age. When asked if he found Z annoying he said, “Yes, sometimes, like any kid. Y, my paternal cousin, gets annoying, but I still love Y”.
The mother’s position to Mr W at paragraph 5 was that the father’s relationship with Ms I was a very dicey relationship; she yells at X, screams at him and treats him badly as X has told her these things. Z and X don’t get along because of the big age difference. However the mother’s case was that X and Y who is only two years of age have a wonderful relationship despite an age difference of 10 years not the mere four years between Z and X.
The mother’s allegations and opinions are false. The father has provided for this child a stable, appropriate and loving household in which he is thriving both at school, in his extracurricular activities and social and emotional growth and development as he approaches puberty.
The mother had told Mr W that X had told her he was living with the paternal grandparents in April 2013 because of his poor relationship with Ms I. That was denied by the grandmother, the grandfather, the father and Ms I. Either the mother is making this up or she cannot see that in his endeavour to please her, X makes up stories of bad things at his father’s home. When this was put to the mother, she could not agree and was firm this is what he told her and she believed it. It is the mother who has taught X how to make up a story to achieve an end and thus it is no surprise if he behaves this way with his mother.
The father realises that if X does not spend face to face time with his mum this will be difficult for him in the short term but he will get over it.
X is attending a counsellor. With no time or communication, his father believes he won’t be caught up in the tension anymore; he won’t have to pick and choose. This lifting of a significant ongoing burden for X was confirmed by the paternal grandmother who said on one occasion she had overheard a conversation with the child and the mother. The mother was pressing X to pick herself over the father; the words the grandmother heard were, “I know you really want to live up here with us and not with the scum down south”.
The grandmother said when X came out of the room after the phone call he was upset. He walked to the backyard and said to her, “I’m over it, Nan”. This same comment was made by the child to his father.
The father said his son has been caught in the middle of this conflict for more than seven years, and he knows it makes his son sad, and he just wants to lift the burden of this pressure from his son. The mother’s conduct tells me she wants to maintain this burden so that she can achieve her aim. Despite her words and tears at the conclusion of the trial that she will mend her ways and now realises the errors she has made, I am concerned that this too was an act to achieve an end namely keeping the lines of communication open with X and maintain her campaign.
The only allegation that the mother raised and a concern I too share was that X may be in a home where adults smoke as his grandparents are smokers. The grandmother says she is giving up, and the grandfather says he smokes outside when X or his other grandchildren are present. I can take that matter no further.
The conversations the father has recorded between the child and his mother and Mr R are quite distressing. I will just read a few onto the record.
These are post the Ms A allegations.
12 February 2013, the mother rang and said:
Anything serious you need to talk about or get off your chest?
No.
How was your weekend? Did you talk to DOCS or anyone else about what we talked about up here last time you were here?
No.
The mother:
Just remember what we talked about.
Friday, 15 February:
Is there anything serious you want to talk about or get off your chest? What did you do? Did the scum take you anywhere? Don’t forget what we have talked about, tell them what we said about the scum not looking after you. You need to be back here with us, not down there with the scum.
19 February:
Anything you need to get off your chest?
22 February:
Have you talked to DOCS?
26 February:
Anything you need to talk to – get off your chest? You have got great stuff up here for your birthday.
1 March:
Anything serious you need to talk about or get off your chest?
5 March:
Did the scum go anywhere with you? Are they feeding you properly?
12 March:
Anything serious you need to talk about, get off your chest?
No, Mum.
Mr R says:
Did fatty get any money? Isn’t he a poor scum?
Friday, 15 March:
X, be serious. Would you rather live up here where you can have fun and be the family, and go to a great school, or stay down there with the scums where they don’t care about you, and are dirty, filthy scums, where it’s better for you and this is where your family is, not down there. Come on, X, just tell me this. You want to be here with you – the scum.
Could I just not answer, okay, Mum?
I want to know the answer to the question.
And the child says:
How would you like to be put between the parents, Mum? I don’t want to pick, okay, can you drop it.
And the mother says:
So you picked the scum this time.
This is consistent with the grandmother’s evidence that sometimes he gets off the phone is upset and has said, “I have had enough”.
These conversations are abusive at every level and I have no faith that the mother will not continue to speak to her son in this manner and continue to rain down harm upon him.
Mr R was asked if he and the mother had considered relocating to an area closer to where X lived given the mother’s second set of proposals after the hearing commenced to move closer to the child. He said “that is an option” and then said, “I have a full-time job and I would not want to leave it but I would like to have arrangements to be closer to X.”
It was specifically put to him whether he and the mother had discussed relocating. He said, “No, there have been no discussions,” and I accept that evidence.
The mother’s evidence the following day was that she and Mr R had discussed relocating and the fact that Mr R had said they had not meant he was in error. I prefer Mr R’s evidence to that of the mother.
Mr R had read the latter two family reports he had been involved in and he accepted that X had told Mr W in that report at paragraph 23:
X reported he continues to spend time with his mother for half of each school holiday period which he said was “good, good”. When asked if he would like to change anything about his current parenting arrangements he replied:
The way it now works out good except the phone calls. I prefer it was for one hour on Friday so I could tell mum what’s happening during the week.
When asked to clarify his views about his future living arrangements, X’s reiterated:
I like it how it is now. I like half the holidays with mum -
and then made what I regard as a comical comment:
When I go back to mum’s I’ll need earphones because she is having another baby -
and he affectionately recalled teaching his little brother, Y, to hold a football.
At paragraph 26:
He was asked whether his mother was aware of his change of preference about his future living arrangements because all three prior reports, including at the age of five when he was first interviewed, X said he preferred to live with his mum. X anxiously replied “Mum doesn’t know” and said he’s worried about how she will react when she finds out.
He went on to say:
I’d like the current litigation to end. I want them to make an agreement instead.
Part of the child’s concern about the ongoing litigation was his view that he had to speak to the Judge, but at 13 he could make up his own mind and he had to come back at Court at 18. Fortunately, Mr W advised X none of this was true and he appeared relieved. I am satisfied the father has never spoken to the boy about such matters and that this misinformation can only have come from the mother.
Despite having read the report, Mr R said he did not accept that this was really X’s wish because X had told him different things. It was then abundantly clear that X and Mr R discussed X’s living arrangements.
Despite the mother’s and Mr R’s denials that they do not talk about these matters with the child, it is clear to me from the evidence of the father and X in the family report, that this is a hot topic of conversation on many occasions when X is in his mother’s care and he has been asked to prefer one parent over the other by his mother and Mr R. His father has not engaged in this damaging behaviour. Further I find it is the mother that is maintaining the conflict, not the father.
The father has stepped back from the mother’s web of intrigue and has focused on X’s needs and has given him time to re-establish himself as an independent person and the result is X is doing well.
His mother has shown no capacity to let her son have an independent life and relationships independent from her or those she approves of. The mother cannot now even conceive or understand of the importance of X’s father in his life, and despite her words and tearful submissions to me that she has learnt her lesson, she will go to counselling, she knows she has to change, and her agreement to allow X to live with his father, I have no faith that these statements are true or that she has a capacity to act upon them. Her behaviour may have been an act for these proceedings.
Mr Dalzell used the word “act” in his submissions and it is a correct word to describe the mother’s behaviour. On many occasions the mother would say “I’m sorry”, look up at me and say, “I didn’t understand”, “I don’t know”, yet when pressed on very important matters in cross-examination such as the allegations of the child X licking Ms A’s thigh near the crease between her thigh and her vagina, the mother stood firm and was clear this is what her son said to her.
When pressed on the consequences for X of her intervention which has resulted in two JIRT interviews and her embellishment of the allegations of 16 January 2013 resulting in a third JIRT interview, the mother stood firm and was clear. The mother said she believed she was being protective towards her son in further embellishing the initial 16 January 2013 allegations 14 days after the events. She believed she was a mandatory reporter of such behaviour and was not swayed or weakened in the correctness of her conduct at any time in her child’s life during cross-examination.
There was no crack, no room for error from the mother’s position. The mother made no concessions such as “I hadn’t thought of that”, unlike Mr R who, when asked about the inappropriateness of X calling him dad said,
How would you feel if Y called X’s father Dad.
Mr R responded:
I hadn’t thought about that. It wouldn’t be good.
This was one many stark differences in Mr R’s capacity for insight and the mother’s incapacity for insight. Mr R made concessions when he had not thought about another option, a consequence or a different reason for behaviour. Mr R conceded X’s comment about his father and where he wanted to live may have been as a result of X wanting to please him and the mother.
The mother made no such concession on any occasion either in her evidence or in cross-examination. The mother stood firm under cross-examination by Ms Dart and Mr Dalzell. It was only in her submissions when she realised the consequences were possibly to be orders for no time or communication, that the mother broke down, cried and pleaded with the Court to give her another chance.
Whilst there was a prospect, as the mother saw it, of her retaining at least communication with her son, she stood firm and would not back down. Only when even that prospect had become remote after hearing Mr Dalzell and the ICL’s submissions did the mother show any movement.
Thus I do not accept her words from the witness box or the bar table and Mr Dalzell’s use of the word “act” was appropriate. The mother put on an act for the Court and has been found out and is seriously wanting in her capacity to promote her child’s best interest and protect her child from her own attitude, conducts and behaviours. X is the one entitled to a chance, not his mother unless in so doing I am promoting his best interests.
The mother has a history of troubled mental illness. She has been admitted to (omitted) Hospital in (omitted) but she was not forthcoming, nor would she discuss those matters, preferring to answer with
I don’t know when it happened, I don’t know why I went there, I thought someone was in my house, I remember calling the police, the next thing I was at (omitted) Hospital.
The mother will not and is unable to talk about painful things in her past where they may reflect badly on her. This does not auger well for the future.
Firstly, Mr W said to the mother directly in the witness box,
In order for X to have time with and communicate with his mother and not be at risk of harm from her behaviours, the mother would need to engage in significant behavioural change.
Part of behavioural change is to understand the impact of her prior behaviours upon her son and there is no evidence before me, other than her tearful submissions, that she accepts the consequences of her behaviours for her son.
Secondly, Mr W again directly addressing the mother said she needed to use common sense when her son told her a story and filter what he said before she reports matters to the police. At the minimum she should contact the father and let him know what is happening. The mother behaving in this more appropriate manner in the future is contrary to the evidence.
One concession the mother made is that contrary to her early belief and after cross-examining Ms I, she accepted Ms I is an excellent woman and that X has a good relationship with her. The mother went so far to say she thought she and Ms I would be able to communicate about X’s welfare. That may be correct. This was the only concession the mother made.
The mother was polite and courteous in cross-examining Ms I, the father and the paternal grandparents.
The care of this boy is problematic; Mr W reported that it is possible X has some real problems, including the possibility of sexually inappropriate behaviour towards young women and children. However X himself has been subjected to abuse and inappropriate behaviour from his mother and many of these false allegations of abuse were imbued with a sexual overtone and it is now impossible to separate fact from fantasy.

Mr W further reports:
I consider Ms Warhurst’s attitude and behaviour has not only been unhelpful to X, it has probably been emotionally and psychologically destabilising to him, and her attitude and behaviour may well constitute a toxic, negative and manipulative influence from which X may need to be protected.
Mr W opines of the options of X spending no time with his mother or communicating with her and his brother and Mr R and the consequences for him. He concludes X will suffer significant grief and may idealise his mother but this must be balanced with protecting him from his mother’s emotionally and psychologically destabilising and toxic negative manipulative influence upon him.
At paragraph 58 of his report, Mr W says:
Ms Warhurst may accept responsibility for her past errant behaviour and make a commitment not to behave in such ways in the future. This will be potentially the most healthy outcome for X, however, such a development would require the Court to determine whether any such commitment by the mother was genuine and likely to be sustained.
The mother’s manipulative, negative, toxic, emotionally and psychologically destabilising behaviour towards her son was apparent to Mr W in 2006, and although the father was at that time unable to iterate those words he used the words, “I want my son to be safe”. The father was correct. X was not safe in his mother’s home, emotionally or psychologically.
Mr W was correct, the mother’s campaign to have her son returned to her and the tactics she engaged in have been of positive harm to this child in the seven years since that first report was prepared.
The mother has been directed by the Court previously to desist making vexatious allegations regarding X, yet she has continued in this behaviour. The most stark and concerning being on 31 January 2013, and it is beyond my comprehension as an adult concerned in the care and welfare of children that a parent would make such a vexatious, and I find, false allegation against their own child.
There are two possible explanations for her behaviour, maybe more. The first is that the mother is so mentally unwell she is unable to ascertain fact from reality. Mr W did not make such a finding, nor did I find her to be so mentally unwell that she is in a delusional state.
Secondly, as Mr W foretold in 2006, her behaviour is part of her tactic in her war and campaign to have her son returned to her care, whether he is returned damaged or not. The return is all that is important to her.
I am not satisfied after a four day hearing that the mother’s attitude has changed or that she can sustain any change in behaviour or attitude that would result in X being safe in his mother’s care or in communicating with her and this was a concern for Mr W as well. In light of this evidence I must consider injuncting the mother from reporting any concerns she has about her son to the Police or the Department in the future.
The subpoenaed material is distressing in relation to the allegations that the mother has made against the father and her own son. I refer to the 27 August 2005 allegations when X was only 4, of touching his father’s girlfriend, Ms L, on the breast, vagina and placing his fingers inside her vagina. These spurious allegations were made by the mother immediately after the Local Court Magistrate in Orange made the order on 27 May 2005 for the child to be returned to his father’s care. The mother’s plan was successful and her allegations foiled the return.
This is the beginning of X being involved in his mother’s web of deceit and intrigue with an overlay of sexual misconduct by either him or his father and was still continuing in January 2013. X has been groomed by his mother to tell her what he thinks his mother wants to hear and it may now be very difficult for X to tell her any truth.
He fortunately has a calm, sanguine father and grandparents and Ms I, his stepmother, who provide for him a sanctuary and safe place free from the pressure of having to dob on or tell a tale against another parent. That sanctuary is not available in the mother’s household.
In order for this child to feel he is making his mother happy, which is important to him because he loves her and is closely attached to her, he will tell her whatever stories he thinks will make her happy. The mother’s behaviour is the cause of the child’s behaviour, not the other way around.
The mother’s theme of the child being sexually abused and placed in an environment with the father to be sexually abused, observing adults having sex, observing naked women touching vaginas, licking vaginas, has been a constant theme since 2005 and the damage to the child is clear and it was referred to by Mr W in his report.
In August 2006, there was a report to the Department that X was aggressive at school and having difficulty and that is referred to in Mr W’s report of 7 September 2006 and confirmed by the mother at that time and she described him as confused.
It is not surprising that this was the case, given the conflict this little boy would have been undergoing with his mother waging her war of separating him from his father, his not attending school and his mother taking him out of school on Fridays. One can only imagine what the mother was saying to X about his father and paternal family whilst he was in her care.
The involvement of the now deceased Mr G in X’s alleged stories will never be known. The mother protected Mr G in 2005 and 2007. Now we know he was a thug and overbearing bully who made death threats to her since their separation in 2010. At that time the mother told no one in authority concerned with the care of her child and blamed the father for any issue of concern relating to X when the evidence could lead to Mr G being the source of abuse of X.
X himself when interviewed by the Department in 2006 mentioned “Mr G” as being involved in inappropriate sexual behaviour. Mr W reported at paragraph 28 of his 2012 report:
In relation to her own track record of facilitating X’s relationship with his father, the mother acknowledged, ‘It’s hopeless. It’s really bad. Back then I was young and stupid. I’ve grown up.’
This was in regard to her unsubstantiated allegations and the father’s successful contraventions in 2008.
The person I was with, Mr G, was pretty bad. I was led astray by him, but believe me, I’ve learnt my lesson. I believe every child needs their father except when there’s abuse or neglect.
Those words are hollow.
In the report of 7 September 2006 X told Mr W his father “slaps me around”. These are the words the mother used when she withheld X from his father in 2008 after he refused to agree to her relocation and alleged the child was frightened of his father. These allegations were found to be baseless.
The mother has made up these stories and has used this child as her weapon to achieve her end which was, at that time, to ensure X had no relationship whatsoever with his father.
Next are the allegations on 1 December 2011 to the DoCS helpline that the father had deliberately run over X’s foot. The police investigated this allegation and found that at that particular time the parties were exchanging X at Interrelate. The persons at Interrelate who observed X returning from his father’s care said the child was not limping and observed no injury upon his return to his mother.
The doctor the mother took the child to, not on the same day, but some days later to report this incident said the child had a sprain to his foot.
Two or so days after the mother made the allegation to the Department, the mother brought the child to Interrelate and the child was hobbling. The mother requested a report be prepared by the staff to support her story the father had deliberately run over his foot and he was injured on his return to his mother’s care.
The director of the Interrelate centre, named Mr O, was highly suspicious of the mother’s motives and would not comply with her request as no one observed any injury to the child. In the witness box the mother turned to me and said, “I observed it. I saw tyre marks on his foot”. The mother was not shaken even though there was not one objective piece of evidence to support her assertions and all the evidence is against her story being accurate.
The mother perpetrated harm on X by allowing him to be arrested by police in 2011 after the recovery order was made and not making arrangements for her son to be returned to the father’s care in an orderly fashion.
If, as the mother asserts, she is interested only in protecting X, one would have expected that she would have asked the Judge at the time what happened next. Or rung the father’s lawyer on the telephone number in the document she had been served with to find out what this meant, or rung the lawyer she had used intermittently during the drawn out recovery order process and be advised. The mother did nothing and allowed X to take the full brunt of the consequences of her behaviour.
The mother did not blink when I said “by your inaction you allowed your little boy to be arrested by two burly police officers”.
She replied “He wasn’t arrested.” He was. I saw no remorse, understanding, insight, or compassion for the child by the mother under cross-examination. What I saw was a parent hell bent on achieving her aim, which was to excise the paternal family from the child’s life.
The mother’s action in unilaterally relocating and stopping the child seeing his father for six months in 2011 were also abusive of X’s right to maintain his meaningful relationship with his father and paternal family.
In addition to running over his foot the mother alleged on 1 January 2011 that X was not attending school, was not being adequately supervised, the grandparents consume alcohol every weekend and referred to them as alcoholics, X watches pornographic videos every weekend with the father and sometimes X watches these movies without the father and X has never wanted to reside with his father.
The police interviewed X as a consequence and it became apparent he had watched a program called “Housos” which is inappropriate. The police said although inappropriate it did not warrant a risk assessment to be carried out and again the case was closed. The damage to X had been done.
X had yet again been interviewed by authorities concerning allegations of sexually inappropriate conduct surrounding him and his father, brought about by the mother’s unsubstantiated allegations.
I have dealt with the Ms A allegations.
The mother’s embellished story was not limited to the child telling her he licked Ms A in the crease between her thigh and her vagina, but that he had been made to lick Ms I’s private parts as well.
These allegations are made up by the mother. X licking Ms A is a fiction of the mother’s as is X licking Ms I. Licking by X has been a constant theme of the mother’s going back to 2005 when this hapless child was but four years of age.
JIRT determined the allegations unsubstantiated and closed their investigation and confirmed X was talking about matters in 2005 and not now. The report cited concerns about the integrity of the child’s information of the behaviours at his father’s home.
The mother has created this rod for her child’s back and it may haunt him for the rest of his life. The parents have an acrimonious relationship but the acrimony is one way - the mother to the father. The father has exhibited the patience of Job. He has pursued contravention applications, recovery orders, and final hearings to assure that his son is safe. No one has given the father sufficient credit for his dogged determination to maintain his all-important relationship with his son and protect him.
In 2006 the father and Mr W were correct. The mother has and will continue to engage in tactics which have and will continue to harm her son to achieve her ends. She has waged a war since 2006 and her teary submissions to me that she wanted to be given a second chance, that she now knew what she had done wrong, that she would do anything to have time with her child, do not move me.
Contrary to the mother’s submissions I had not made up my mind at the start of this hearing, to cease all time and communication between X and his mother, however after hearing her evidence and observing her demeanour in the witness box it is the only order I can make if I am to protect this boy from harm into the future.
As the mother was unrepresented at the commencement of the hearing, I believed it appropriate to advise her of the possible consequences if the matter went to trial. At the commencement of the hearing the father’s position was no face to face time, but a continuation of telephone communication and the father was very open to Skype.
I advised the mother that if I found that the allegations and the evidence that the father presented was indeed the truth of the matter, a consequence may be that she would spend no time with or have no communication with her child. The mother assured me she understood that and wished to continue with the matter and her application the child live with her in (omitted).
The hearing commenced with the mother wanting the child to live with her and ended with a consent order that the child live with the father. The mother again and consistent with her pattern of behaviour, blames everyone else but herself for the situation she finds herself in.
The mother said it was the father’s behaviour that caused her and the child stress. Mr G caused her to act badly and prevent the child spending time with his father in 2008. Whoever is to blame, it is never the mother. Mr R, her partner, got it wrong about the allegations with Ms A, got it wrong about the discussions of moving closer to (omitted). X lied when he said his mother and Mr R called his father and paternal family “scum”.
Mr Landy has lied. He’s the perpetrator of harm, not she. The only person who hasn’t lied in these proceedings is the mother on her case. The evidence is to the contrary. I am unable to rely on any fact, assertion or matter the mother has put to me unless it is proved by objective evidence.
At the interview with the JIRT team on 19 January 2011 concerning the running over the foot allegation, watching pornography, engaging in sexual activity the report states:
Investigators noted the child seems very rehearsed. He was able to turn his emotions on and off at will and a number of significant inconsistencies in his story -
…that the story is possibly concocted by the mother to support any family law matter.
That was a correct conclusion. That is precisely what the mother did and I find will do so again if given any opportunity and thus I must, to protect the child, injunct her from making any reports to the Police or the Department regarding her son.
Again on their closing report in that investigation dated 16 March 2011, the assessment said:
Had JIRT substantiated the matter the writer of the report would have been pleased the mother retained the child, however, given that JIRT had significant concerns regarding the factuality of X’s disclosure, it causes concerns as to why or how X fabricated such a story and had the mother taken some part in this.
The mother is the one who fabricates the story or encourages this child to tell tales about his father, tales of a sexual and abusive nature, which go back to 2005.
Mr W said in his report of 13 September 2013 at paragraph 39:
The mother’s belief that X had a poor relationship with Ms I and Z, her son, was specifically tested and found to be inaccurate.
All the mother’s beliefs about X’s danger, lack of care, exposure to risk, sexual or other risk in his father’s household, are inaccurate. Both X’s verbal comments and observations of his interactions with Ms I and Z established the opposite was actually the case. He enjoys a warm positive comfortable relationship with both of them.
And refreshingly, as Mr W says:
The relationship is not perfect and the father was most open and honest about difficulties settling in two households into one with two children.
And Mr W said:
X may complain to his mother about these mothers as he would. It is natural to complain. His mother’s enthusiasm to accept such comments uncritically may be motivated by her strong desire to have X living primarily with her.
Mr W opines that because of the inappropriate behaviours he was exposed to when he was four, he may not now have the boundaries he should have. He is attending a counsellor. The family reports as well as a copy of this judgment are to be provided to his counsellor and Mr W is happy to speak to his counsellor if needed. X is benefiting from time with his counsellor.
I note the only times allegations of any inappropriate sexual conduct with X that have been made since the child has come into his father’s full time care in November 2011, is when he has been with his mother. That is a glaring and overlooked fact.
The allegations of inappropriate behaviour other than Y and X, huddling under a blanket come from the mother. I make no comment about that as children do these things. The serious allegations of sexual misconduct by the child all come from the mother and at times when the child has been in her care, not the father’s care.
Mr W notes in his last report state that the mother’s allegation on 31 January 2013 that “Dad made me lick Ms I’s private parts”, was not included in her affidavit.
I may not be able to make much of that as the mother is not legally represented. However, if the mother firmly believed this to be true at the time, it is extraordinary that she did not include this in her affidavit filed in October 2013 as it would have been of concern.
Mr W concludes at paragraph 49:
Collectively, these inconsistencies suggest the mother has employed a scattergun approach to the making of allegations about X’s safety whilst in the father’s care in the hope some of them will stick. On the contrary, the claims of JIRT, the Department of Community Services, Family and Community Services and NSW police and even the Local Court Magistrate in (omitted) collectively form a view that Ms Warhurst’s allegations are unreliable and on some occasions have been manufactured by her for partisan family law purposes.
These are extremely serious claims. If the court had formed the view they had any validity whatsoever, I imagine it could well decide that X needs to be protected from what would be a very toxic and manipulative influence in his life.
This is precisely what the Court has found. There is an urgent and real need to protect this child from the toxic manipulative influences his mother brings to bear upon him and the consequences for him in his adult life are at the forefront of my mind.
Going to the matters I must under the Family Law Act. The first issue is whether I rebut the presumption of equal shared parental responsibility.
Section 60B of the Act sets out that the objects of part VII are to ensure the best interests of children are met and ensure children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the children, protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence; ensuring that children receive adequate and proper parenting to help them achieve their full potential; and ensuring that parents fulfil their duties and meet their responsibilities concerned the care, welfare and development of their children.
Section 60CA determines that the Court must, in deciding whether to make a particular order in relation to a child, regard the best interests of the child as the paramount consideration.
Section 65D gives the Court the power to make a parenting order and section 64B defines the terms and identifies the matter that may be dealt with by a parenting order.
Parenting orders are subject to the presumption under section 61DA(1). The Courts should presume that it is in the best interests of a child for the parents to have equal shared parental responsibility.

When the presumption is not rebutted by virtue of section 65DAA I must consider whether the child spending equal time with each of the parents would be in their best interests and to answer this question I must consider both whether it is in a child’s best interests to spend equal time by reference to the section 60CC (2) & (3) factors and whether such an order is reasonably practicable.
If I do not find such an order is appropriate then I must consider whether a child spending significant and substantial time with a parent is in their best interest and to consider that question I follow the same pathway.
Significant and substantial time is defined in the Act to mean days that fall on weekends and holidays; days that do not fall on weekends or holidays; days that include part of the child’s daily routine; special occasions and events.
The matters to be taken into account in determining what is “reasonably practicable” and the interplay of best interests and reasonably practicable was considered by the High Court in their decision of MRR & GR [2010] HCA 4 where the Court said:
Each of subsections 1(b) and 2(d) of section 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court must have regard to certain matters such as how far apart the parents live from each other, the capacity to implement the arrangement in question and such other matters as the court considers relevant in determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parent.
The High Court went on to say that section 65DAA(1) is expressed in imperative terms and obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each parent or significant substantial time and whether it is reasonably practicable for either order to be made and it is only where both questions are answered in the affirmative that consideration may be given, under paragraph (a), to the making of an order for equal time or significant and substantial time.
His Honour Judge Dunkley made final orders rebutting the presumption of equal shared responsibility in 2012. The continuation of that rebuttal is supported by the ICL and the father. The mother seeks it be shared.
When I asked the mother how sharing of responsibility would practically work given she had told me she could not speak to the father or he would not speak to her and that they live many hundreds of kilometres apart, she thought Ms I, who she now believes is a nice person, would assist her.
There is significant danger for X in parental responsibility being shared. The mother will use any capacity she has to be involved in decisions about X’s care to achieve her thwarted aim. I am concerned the sharing of this responsibility will only further her campaign and war engaged in since 2005 to have X in her care and disassociated from his paternal family.
Further it is neither practical nor realistic for the parents to share this responsibility as they do not speak and nor would the Court expect the father to speak to the mother given her view of him as “scum”.
The mother has seriously compromised her son’s welfare in the past to suit her needs and thus the rebuttal of the presumption will continue.
Having so rebutted that presumption, I need not consider an order for equal or significant substantial time. Neither order will be practical as I do not accept the mother’s position she will now move to (omitted).
The mother is supported by Mr R. They have a son Y and are soon to have another child. Mr R and his family are firmly ensconced in the (omitted) area. He has a good job as an (omitted) and I see no basis for his leaving that job. I do not accept the mother’s bald assertions as the story unfolded before us in the witness box that she will move close to the child and as it is agreed X remain living with his father that is the end of that issue.
Turning to a weighing up and consideration of the factors under section 60CC (2) & (3).
X benefits from a meaningful relationship with each of his parents. This is clear from Mr W’s reports and is what X says. However, the cost to X of a meaningful relationship with his mother may be a significant and unacceptable cost. Mr Dalzell said this was a matter of unacceptable risk for the child in his mother’s care or contact with his mother, the ICL agreed and this is an important matter for me to assess.
In M & M (1988) 166 CLR the High Court dealt with the concept of unacceptable risk in parenting proceedings at paragraph 25.
Efforts to define with greater precision the magnitude of the risk justifying a Court in denying a parent access to a child have resulted in a variety of formulations…
To achieve a proper balance the test is best expressed by saying a court will not grant custody or access to a parent if that custody or access would expose a child to an unacceptable risk of sexual abuse “ or as here “abuse”
In B & B [1988] HCA 66 the High Court endorsed the Full Court’s statement that the assessment of the risk to a child is the ordinary civil standard. At paragraph 7:
If a trial Judge considers upon the balance of probabilities that the welfare of the child may be endangered or there is a risk that the child may be physically, sexually or emotionally harmed if access were to occur then a trial Judge may, in our view, suspend access.
The law is not that a child must have a relationship with each parent at any cost.
The evidence of the risk to X’s welfare from time with or communication with his mother is overwhelming. If X spends time with or communicates with his mother in any way she will continue to expose him to her propensity for making false allegations about the father or his own behaviour, pressuring him to choose one parent over the other, continue to denigrate his father and family and fill his head with notions such as set out in Mr W’s report, paragraph 27:
Mum said when I’m old enough. Apparently it’s 13. You can make a decision about where you live.
The mother will continue on her war if she has any capacity to do so. Her campaign has already involved this child in three interviews with the JIRT team, and various other interviews with police and the like.
Further, X is now by agreement to live with his father and that relationship must be supported. Mr W says in his last family report:
The child living with the mother will provide an unacceptable risk that his relationship with his father would again be disrupted as it has been in the past and that this is unacceptable for the child.
I find the risk of a disruption in his relationship with his father is not only likely if he lives with his mother it is also likely if X spends any time with or communicates with his mother.
If X’s emotional and psychological functioning is to be protected and the possibility of being placed on a young person’s sexual offence register be extinguished, he can spend no time with or communicate with his mother unless she undergoes significant and permanent behavioural change and Mr W expressed concern that the mother had no capacity to change.
Any time or communication with his mother will expose him to an unacceptable risk of harm from his mother’s actions and behaviours.
The wishes of the child. X expressed a wish to spend time with his mother. He enjoyed the holidays. However, wishes of a child are not always determinative of these proceedings.
Impact of change in not spending time with or communicating with his mother. Mr W said the child will suffer grief in not spending time with and communicating with his mother and set out the long term and short term effects of each option.
The short-term implications of the ceasing time with his mother, it would positively protect X from further allegations and interviews by the Department and would give the child some relief. This is confirmed by the grandmother who says the child has said to her on occasions, “I’m over it, Nan”. However, negatively he will undergo a brief period of reaction and stress. In the longer term the positives are it will enable him to have a normal childhood or regular childhood. For example, playing sport, something his mother said he couldn’t do when he lived with him because it was too dangerous. However, it would lose his relationship with his mother, X and Y. He may idealise his mother.
Mr W agreed the best thing to do was possibly to leave the child’s time or communication with his mother up to his father, hoping that the mother can retrieve herself in the interim. Distance was not the issue for this child, it was parental behaviour and attitude. Day time or weekend time, the risk was the same.
Grief counselling might assist him and he is attending a counsellor who may be best placed to tell X of the Court’s decision. Mr W agreed he would speak to X’s counsellor and advise him how he could best explain to the child the decision that has been made. Mr W said:
Ms I’s presence in the home, a person with great insight and empathy for X, will be most important for him to help him over what will be traumatic for him and a real sense of loss.
Insight demonstrated by the parents into the needs of their child including emotional, psychological and educational.
I find that the mother has scant insight into the needs of her son. She has no capacity to protect him from harm, being her own false views of the father and what happens in the father’s household. She will report matters of her son’s alleged behaviour to authorities exposing her own child, to the possibility of being placed on a young person’s sexual offender’s register, in her campaign to have the child live with her.
The mother has no ability to promote his educational needs. She was, criminally negligent with his education in the years 2006 to 2010 and part of 2011. He missed a whole year of school between those years.
Since coming to his father’s home he has excelled at school. He has progressed in leaps and bounds. His father’s description of the help he has given his son with writing and reading is pleasing. He attends sport and he enjoys playing with other children. He now leads what could be regarded as a normal life.
The mother has no capacity to promote the child’s relationship with his father or his paternal family and is dismissive of them, denigrates them to X and refers to them as “scum”, “fatty”, “poor” and “dirty”.
It is the mother who has abused this child and who I find will continue to abuse her child in the future and for the reasons above I make the orders as I indicated I would at the beginning of this judgment.

I certify that the preceding three hundred (300) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 9 December 2013

[2013] FCCA 2101

9 December 2013

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Remedies