LETO & YACINE

[2017] FamCA 43

FAMILY COURT OF AUSTRALIA

LETO & YACINE [2017] FamCA 43

FAMILY LAW – CHILDREN – Parental responsibility – Where the mother is an experienced parent with identified limits to capacity – Where the father is an inexperienced parent dedicated to caring for the child – Where the mother has a daughter who has reached majority – Where that daughter suffers from an anxiety disorder – Where the mother sought an exemption from education for the older daughter –  Where the mother has a history of cavalier attitude towards education – Ordered the parties have equal shared parental responsibility with the exception of education for which the father will have sole parental responsibility

FAMILY LAW – CHILDREN – Time spent with the father – Where the mother has made previous accusations of child sex abuse perpetrated by the father – Where these have not been substantiated – Where the child has been too young to be directly exposed to the mother’s wrongly held beliefs – Where the child is developing well and enjoys the relationship with both parents – Where the parents live in close physical proximity – Where interim orders have allowed the relationship between the father and child to grow – Ordered gradually expanding time culminating in time which is substantial and significant

Family Law Act 1975 (Cth), ss 60CC, 64B

APPLICANT: Ms Leto

RESPONDENT: Mr Yacine

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Port Macquarie

FILE NUMBER: (P)NCC 2078 of 2015

DATE DELIVERED: 2 February 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Cleary

HEARING DATE: 2, 3 and 26 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Graham

SOLICITOR FOR THE APPLICANT: Mark Morris Solicitor

COUNSEL FOR THE RESPONDENT: Mr Allen

SOLICITOR FOR THE RESPONDENT: Steven Young Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Port Macquarie

Orders

1. That all prior parenting orders in relation to the child B born … 2015, “the child” are discharged.

Parental Responsibility

1. That the parents have equal shared parental responsibility for decisions relating to the long term welfare of the child with the exception of education at school for which the father shall have sole parental responsibility.

2. In the year prior to the child starting formal education the father shall;

   3.1Notify the mother of the school (in C Town) he proposes;

   3.2Invite the mother to express her views within a nominated period;

   3.3Genuinely consider any views expressed in a timely way;

   3.4Advise the mother in writing of the chosen school;

   3.5Enrol the child at the chosen school;

   3.6Provide the principal of the school with a copy of these orders;

   3.7Include the name and contact details of the mother in the enrolment application; and

   3.8To the extent that is necessary authorise the child’s school to provide to the mother (at her expense if any) copies of documents relating to the progress and welfare of the child at school including, but not limited to school reports and applications for school photographs.

Residence and time to be spent

1. The child shall live with the mother and spend time the father as follows:

   4.1Until the child is age 3 years:

   4.1.1Each week from 2.00 pm Sunday to 2.00 pm Monday and on Tuesday and Friday from 8.00 am to 2.00 pm;

   4.1.2For the purposes of Order 4.1.1 the parties will collect and return the child at the commencement and conclusion of each spend time with period at McDonalds restaurant C Town;

   4.1.3For the purposes of Order 4.1.1 neither the mother or her daughter Ms D are to be present while the child is spending time with her father save for the changeover referred to in Order 4.1.2.

   4.2Thereafter until the child is age 5 years or until the child commences formal education, whichever event occurs first:

   4.2.1Each week from 10.00 am Sunday to 4.00 pm Tuesday and each Friday from 8.00 am to 4.00 pm.

   4.3From age 5 or until the child commences school the child shall live with the mother and spend time with the father as follows:

During school terms

4.3.1Each alternate weekend from after school Friday to before school Wednesday;

4.3.2In each alternate week from  after school Tuesday to before school the following Wednesday morning;

4.3.3For the purpose of Order 4.3.1 the father or his nominee shall collect the child from school at the commencement of the period and deliver the child to school at the conclusion of the period.

Holidays and special times

4.3.4Half of each school term holidays and Christmas holiday period being the first half in even numbered years and the second half in odd numbered years;

4.3.5If not already spending time, for the weekend on which Fathers’ Day falls; from 6.00 pm on Saturday to commencement of school the following Monday;

4.3.6If Mother’s Day falls on a weekend when the child is due to spend time with the father, such time is suspended from 6.00 pm on the Saturday prior to Mother’s Day until return to school Monday.

Changeovers

1. Changeovers not otherwise provided for in these orders are to take place at McDonald’s Restaurant in C Town.

Communication

1. The parties will use a communication book, to travel with the child, to record any relevant information pertaining to the child’s health, welfare and wellbeing when the child is in their respective care.

2. The mother and father shall keep each other advised of contact details including telephone numbers, email and residential address and advise of any change of these details in advance if possible, but if not, within 48 hours of any change occurring.

3. Each parent shall encourage but not compel the child to receive and make telephone/skype calls to the other parent at any reasonable time.

Restraints

1. Each party is restrained, other than in a genuine emergency, from obtaining specialist medical advice and treatment and psychological therapy without the prior written consent of the other party.

2. The mother is restrained from taking the child to any counsellor or natural health practitioner without the father’s prior written consent.

3. The mother is restrained from giving the child any non-prescription medication and/or herbal remedy without the father’s prior written consent.

4. Each party is restrained from removing and/or causing or allowing, by their agents or otherwise, the removal of B (born … 2015) from the Commonwealth of Australia, and it is requested that the Australian Federal Police give effect to this order by placing the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia.

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

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

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2078 of 2015

Ms Leto

Applicant

And

Mr Yacine

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for parenting orders in respect of one child, B, a girl aged 19 months at time of final hearing, now two years.

2. The applicant is the mother, Ms Leto, aged 42. The mother’s household consists of herself; Ms D, her young adult daughter from her first marriage, and the subject child (born from her third marriage).

3. The mother is an aged care nurse by occupation. She also receives a Carers’ Allowance for Ms D who has been diagnosed with an anxiety disorder.

4. The respondent is the father, Mr Yacine, aged 28. He was born and grew up in North Africa. He has lived in Australia for almost two years. The father’s household consists of himself only.

5. The father was a university student who completed all but the final year of his degree in North Africa. He has permanent residence in Australia and receives a Newstart Allowance.

6. The parties both live in C Town a town on the North Coast of New South Wales.

Short History of Relevant Events

1. The parties met online via Facebook in June 2013. The mother was in Australia, the father in North Africa. The father was a student working for North African refugees. The mother expressed sympathy for refugees and the father enjoyed the mother’s supportive attitude.

2. In November, after five months of correspondence, the mother flew to North Africa to meet the father and his family. The parties spent about four weeks together before the mother returned to Australia.

3. The parties decided to marry on the understanding that the father would move to live in Australia after their marriage.

4. In April 2014, the mother with her then 17 year old daughter, Ms D, her own mother and her sister travelled to North Africa for the wedding. They remained in North Africa for about four weeks. Within a few weeks of return to Australia the mother learned that she was pregnant. She advised the father at once.

5. In 2015 the subject child was born.

6. In February 2015 after his application for residence was approved, the father arrived in Australia. The father lived initially with the mother and their child. The relationship crumbled very quickly under the weight of mutual disappointment, misunderstanding and culture shock.

7. By 24 March 2015 the parties had ended their relationship. The father remained in the home of the mother for four weeks until he could arrange alternate accommodation.

8. On 22 April 2015 the father moved into his own private rental accommodation. He had received some financial assistance from his mother in North Africa. The father contacted the mother regularly to make arrangements to see the child. These requests were generally refused. The father consulted a domestic violence service for assistance.

9. On 27 April 2015 the mother left the child in the care of the father for about 45 minutes. On return she changed the baby’s nappy and observed what she later described as “changes to her vagina … red and blotchy” with a “gaping hole”. The mother thereafter asserted to others, although not to the father himself, that the father had sexually assaulted the child.

10. The mother consulted doctors, although not immediately, and was advised that there was nothing abnormal or concerning. The mother was not reassured.

11. The mother notified the Department of Family and Community Services (“the Department”).

12. In May 2015 the mother left the child for 30 minutes with the father while she took Ms D to the doctor.

13. In July 2015 there was a confrontation between the parties over the father’s wish to take the child for a walk in her pram. The mother called the police, no one was charged. The mother left with the child and declined to arrange any future contact.

14. In August 2015 the mother made an application to this Court seeking orders for sole parental responsibility and short periods of time with the father supervised by the mother. However not even this proposed level of contact took place. There was a further five month period until November 2015 before the child saw the father again.

15. On 18 September 2015 the parties and the child were interviewed and observed for a Children and Parents Issues Assessment by a Family Consultant. The evaluation of the consultant was that this was a complex matter where the mother’s presentation suggested “significant psychopathology that may be contributing towards her current belief that her baby daughter has been sexually assaulted”.[1] The Family Consultant recommended that a psychiatrist be appointed as a Single Expert and further that the matter be allocated to the Magellan Protocol given the age of the child, the sexual abuse allegations and the mother’s then presentation.

    [1] CAPIA dated 18/09/2015, page 12 para 50

16. On 7 October 2015 the Magellan Registrar noted that inclusion of these proceedings in the Magellan Protocol was reliant on the “mother’s allegation asserted again today that the father has sexually abused the child”.

17. On 30 October 2015, after the father had filed his Response, orders were made for time between the child and father in a contact centre.

18. On 9 November 2015 the Magellan Report was released. There was a review of notifications to date and an interview with both parents on separate occasions. The investigations of the child’s genitals arranged by the mother with general practitioners and specialists were explored in some detail. The concerns of the Department were expressed as follows: [2]

    Community Services would have concerns for the child’s emotional and psychological well-being if [Ms. Leto] continues to have the child examined by medical professionals. This would be considered intrusive and unnecessary considering the child has been examined several times with no outcomes of sexual abuse.

    Based on the reports reviewed from Family Law Court and interviews there has been no conclusive evidence that the child has been sexually abused by her father [Mr Yacine].

    The Secretary has assessed that it is not necessary for [Mr Yacine] to have supervised contact with his daughter the child as allegations of sexual harm have not been substantiated nor is there any indication that he will remove the child from Australia.

    [the child has not had contact with [Mr Yacine] since July 2015. the child is not able to develop a bond with her father and it is viewed to be in her best interests to have regular contact.

    [2] Magellan Report dated 9/11/2015, page 5

19. The Department advised that there would be no intervention in the proceedings, consistent with those conclusions.

20. On 24 November 2015 the father had his first contact with the child at an Interrelate contact centre.

21. The parties had been unable to fund a Single Expert psychiatrist as recommended by the Family Consultant.

22. On 1 December 2015 the child and other family members attended for interviews for a Family Report. The Family Consultant identified a number of areas of concern.

23. One area of concern was the mother’s belief that the father had sexually abused the child. The belief was described in this way:[3]

    This belief appears to be quite firmly entrenched and has not changed over time despite the child being examined by several different medical professionals at various times, as well as by other professionals, such as [Ms E] (social worker) with no physical signs of sexual assault.

    [3] Family Report dated 4/12/2015, par 22

24. The Family Consultant developed her concern; that the mother held the belief and that other close family members shared the belief, some of whom had reportedly accosted the father in public to accuse him of being a paedophile.

25. The Family Consultant also noted the mother had tended to react quite strongly to those who she perceived as unsupportive of her concern, including general practitioners about whom she had made a complaint with regard to unprofessional behaviour regarding the sexual abuse reports. The Family Consultant noted a range of concerns about the mother’s management of the child in respect of her health.

26. The Family Consultant’s next area of concern was the access of the child to both her cultures, the father being from North Africa, speaking English and other languages, and the mother being Australian without involvement in any particular religion but a perception that the husband’s culture is a “totally backward way of thinking and that the father’s religion would expose the child to practices such as genital mutilation and teach her to become subservient to men”.[4]

    [4] Family Report dated 4/12/2015, pars 33–40

27. At that time the mother was proposing that the relationship between the father and child come to an end on the basis that he posed an unacceptable risk to her safety.

28. The recommendation of the Family Consultant was that if the Court found the father did pose an unacceptable risk of harm to the child then it was recommended that he have no further time or communication. However if the Court found he did not pose a risk of harm to the child it was recommended that the Court give consideration to changing the child’s residence despite her age and the threat to disruption of attachment to her mother.

29. Both the report and the oral evidence of the Family Consultant was directed at the balance of risk for a very young child being separated from her mother as primary carer or alternatively being denied the opportunity to develop a relationship with her father.

30. In January 2016 the matter came back before the Court and directions were made for Amended Applications. The father amended his Response to propose sole parental responsibility and residence of the child with him.

31. On 29 February 2016 interim orders were made by consent which saw time between the father and child become unsupervised for three, two hour periods per week. This must be interpreted, at least to some extent, as the mother acknowledging that there was no evidence to support her fears and allegations of sexual abuse of the child by the father.

32. Subsequently on 31 March 2016 the mother also filed an Amended Application proposing a more expansive program of time for the child with the father including overnight time commencing when the child turned three.

33. By 2 August 2016 when the hearing commenced the mother was proposing even more extensive time between father and child, graduating to equal time, week about, by school age.[5]

    [5] Exhibit 9

34. Given the hostile tenor of the mother’s oral evidence her Amended Application probably represents a pragmatic response to her situation rather than a genuine acceptance that the father had a contribution to make to the welfare and development of the child. What was also on display was regret by the mother over her involvement with the father and her wish to deny the child access to those aspects of his culture which the mother found unattractive.

35. The lay evidence concluded within the first two days of hearing and the matter was adjourned to enable the parties to participate in a family mediation conference, which they did in the following week.

36. The matter remained unresolved and the hearing resumed on 26 August 2016 and was concluded on that day. Judgment was reserved and interim orders were made by me pending delivery of judgment.

Interim Orders

1. Those orders provided for overnight contact to commence immediately, once per week, with two additional weekly periods of six hours on Tuesday and Friday. By conclusion of the hearing I was comfortably satisfied that there was no unacceptable risk of harm, sexual or otherwise, to the child from the father. Likewise I was reasonably satisfied that apart from the mother’s grudging acceptance that there was no evidence to support an unacceptable risk of harm, she otherwise provided a sufficient level of care for the child.

2. The issues emerged as;

   a)Whether or not the parties should share parental responsibility; and

   b)What were the most appropriate arrangements for the child to live and spend time with each of her parents.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The [Applicant]

   (a)Amended Initiating Application filed 31/03/2016;

   (b)Notice of Child Abuse or Family Violence filed 16/10/2016;

   (c)Affidavit of the mother filed 5/07/2016;

   (d)Affidavit of Ms F Leto filed 5/07/2016;

   (e)Affidavit of Mr G sworn 27/07/2016

   The [Respondent]

   (f)Response filed 16/02/2016;

   (g)Affidavit of the father filed 1/07/2016;

   (h)Affidavit of Ms H filed 1/07/2016;

   Reports

   (i)Family Report dated 4/12/2015;

   (j)Magellan Report dated 9/11/2015; and

   (k)Child and Parents Issues Assessment Memorandum (“CAPIA”) dated 18/09/2015.

Oral Evidence

The Mother – Ms Leto

1. I had the overall impression that the mother had had expectations of happiness, support and financial security resulting from her marriage to the father. When it became clear that although the father was willing to work he was going to be dependent on her at least initially, the mother lost confidence in him.

2. The mother came to see herself as the victim of a trick. She rejected the father as a fraudster and reviewed unfavourably everything that had occurred since their online meeting. She felt suspicious of his motives, his family, his country of birth and his religion.

3. When the chance arose the mother let forth streams of criticism; the unhygienic conditions in North Africa, the perceived inability of North Africans to form an orderly queue, her fears that the father would teach the child to be subservient to men and interpretation of parts of his religion to mean that the father would try to cause the child to be married under age.

4. Her anger and regret were encapsulated by her spontaneous statement, “If I’d known then, what I know now, I never would have gone.”

5. The mother presented as bitter about the father and the Child and Family Support Worker, Ms H, who assisted the father to assimilate and connected him with relevant services post separation. Ms H provided an affidavit for the father.

6. The mother agreed that she believed the father portrayed a false image of himself, “He has glorified himself in her [Ms H’s] eyes, depicted me as a perpetrator”.

7. Likewise, the mother thought the Family Consultant “Very one-sided. She believed what he told her.”

8. The mother did not accept the opinion of the Family Consultant that the mother would benefit from obtaining a referral to an experienced clinical psychologist with experience in Personality Disorders.[6] “Her recommendations are based on what [the father] told her”.

   [6] Family Report dated 4/12/2015, par 136

9. By the time the matter came to hearing the mother had apparently accepted that not everyone saw her situation in the same way she did. Also that the relationship between the father and the child would be given priority by the Court over her feelings and experiences. Most importantly, that the father was committed to the child and would not be deterred.

10. The mother made some concessions. In response to the proposition that the notes from the Contact Centre[7] were very favourable to the father, the mother commented, “They said nothing bad. It was happy.”

    [7] Exhibit 6

11. The father has twice completed the Circle of Security program. The mother said she was impressed by that.

12. In relation to her allegations of sexual abuse of the child by the father, the mother implicitly withdrew them by her revised position on parenting orders. She also did so explicitly in oral evidence:

    I did make assumptions that sexual abuse might have occurred but yes I’ve abandoned it.

    Later in her evidence she elaborated:

    I can’t hold onto this idea with nothing to support it. It probably didn’t happen. Better to let the child have a relationship with her father.

13. Counsel for the father strongly confronted the mother with her past tenacious adherence to allegations of abuse, including formal complaint about the doctors who had ruled out abuse after examination of the child.

14. The mother denied fabrication.

15. I consider that the mother was willing to believe the worst about the father without ever discussing her fears with him. She appears to have had warm support from members of her extended family for her behaviour, including referring to the father as a paedophile. The mother may have been hopeful that the father would step back in fear from his relationship with the child if she pursued her allegations.

16. However, although it is possible, I do not consider it likely that the mother would so recklessly pursue an unsupported belief about sexual abuse of the child in future. The mother has moved past the high emotion of separation and appears to be focused on her ongoing parenting of the child.

The Child’s Half-Sister – Ms D

1. Ms D is 19. She suffers from an anxiety disorder. Her mother receives a Carer Allowance for that reason. She is studying for a certificate qualification but it is apparent that her anxiety and the fact that she did not complete her secondary education has retarded her progress to independence.

2. Sadly Ms D was told by her mother that the subject child had been sexually abused by the father. The mother was emotionally upset at the time which caused her daughter to be distressed at a high level as well.

3. Ms D ceased attending school about half way through Year 9. There is evidence before me that the mother made an application to the Department of Education. At that time the mother was married to her second husband and their business interests were said to require them to undertake contracts up and down the eastern coast of New South Wales.[8]  There is no evidence of sustained effort to ensure that Ms D as a young person of 14 or 15 years of age ultimately obtained her High School Certificate.

   [8] Exhibit 12

4. The father is concerned that his daughter not be exposed to a similar cavalier attitude to formal education as she grows up. The father is also concerned that the subject child develops to independence from her mother emotionally and financially in a way that Ms D has not yet achieved to any extent.

The Mother’s Former Partner (Ms D’s father) - Mr G

1. The mother was given leave to call Mr G in circumstances where questions had been raised about the reason for the mother’s older daughter having ceased seeing her father at about age 11.

2. Mr G was a straight-forward and rather impressive witness. He gave evidence that he had regularly seen his daughter, Ms D, for three or four nights in a row, in the period from separation until she was about five or six. He moved away to northern Queensland and after that there was only telephone and internet contact. On a couple of occasions over those past four years he had visited. He was unable to think of any reason why his daughter had not travelled to visit him in northern Queensland.

3. I formed the impression that there had been an acceptance by Mr G that the relationship between himself and his daughter had become attenuated but not through lack of affection on his part.

The Maternal Grandmother – Ms F Leto

1. The maternal grandmother was likewise as her daughter, critical of the father, critical of his culture and his country of origin.

2. The maternal grandmother was quick to assert that the father told lies, basing that assertion on the fact that her daughter had told her that he did, and her own beliefs.

3. The maternal grandmother was fervently supportive of her daughter, the Applicant mother in these proceedings. She agreed that she was critical of the father for pursuing his application for the child to live with him, “He wants to take the child, full custody, he doesn’t take [the mother] into account, his application isn’t fair.”

4. The maternal grandmother was somewhat diffident about the child, referring to her as a stressful child at times, “hard to manage when she is ill and tired”. She was also positive about her, the child was “happy, gregarious and very active”. It was difficult to conclude what strength of the relationship between the child and her maternal grandmother is but easy to conclude that there is a very close bond between the maternal grandmother and the mother.

The Father – Mr Yacine

1. The father gave his evidence in a serious and child-focused way. I accept his evidence that he wants the child to have a relationship with both her parents, “Of course I want the child to see her mother, [the child] needs to be around her parents”. He went so far as to say that whatever the status of the mental health of the mother was, he believed that the child needed to be with both her parents.

2. His answers showed an unwavering commitment to, and focus on, the child. He agreed that he was keen to gain employment but said that his main aim was to rebuild his bond with the child. It was clearly painful for the father to reflect on his exclusion from the life of the child in her very early infancy.

3. By way of throw away remark, the father referred to the fact that his mother was intending to resign from her job in North Africa and come to Australia to meet her first grandchild. There will undoubtedly be a benefit to the child if the father is able to create a family experience for inclusion of the child if only for a limited period.

4. The father was challenged on how he would provide care for the child if she came into his fulltime care. He said that he would formulate a plan for her to spend time with each parent and that she might go to childcare once she was able to communicate well with people.

5. The father has been offended by the rejecting attitude displayed by the mother and her family and it was reflected in answers such as, “I am an Australian resident with the same rights as the mother.”

6. The father conceded that the relationship between himself and the mother has slightly improved, “Things have thawed a little bit over [the child]. I am concerned she will throw more allegations at me”.

7. The father conceded frustration and sadness at his limited contact with the child. He saw a counsellor until April 2015.

8. The father expressed his willingness to communicate with the mother and to communicate with members of the maternal family as needed, “If they give me no trouble, I’ll try, they are [the child’s] family”.

9. More than once the father referred to just having a normal life with the child. He also spoke of the parents having started to communicate through a communication book, “We started talking like parents, similar to like when we were in [North Africa], like normal people”.

10. Clearly the father was also immensely distressed and upset by the breakdown of the marriage so soon after his arrival in Australia. He felt rejected, angry and disappointed. His comment in oral evidence was, “Marriage where I come from is something big”.

11. As the mother has, the father has progressed beyond his immediate feelings post separation and has accepted his circumstances as a single parent.

Community Health Worker for the Father – Ms H

1. Ms H advised the Court that she had authority through the Neighbourhood Centre in the town where the parties live, to provide support until the subject child is age 12, with further capacity to reopen if necessary.

2. When asked whether the father was still scared and vulnerable in a new country, Ms H responded, “He’s not now, he seems to have enormous resilience.”

The Family Consultant – Ms I  

1. The Family Consultant weighing the needs of such a young child against the harm the child might come to, given the mother’s negative attitude to the father, favoured a change of residence.

2. The Family Consultant had significant concerns about the mother’s functioning. She identified borderline personality traits in the mother with particular reference to fixed beliefs not challenged by evidence. However, the Family Consultant was clear to say that what she described as “an encapsulated delusion” did not impact on her ability to perform in other areas of life. That is to say that she was not persistently delusional.

3. The Family Consultant also identified as an area of concern the evidence around the mother’s older child’s education, breaks in that education, home schooling, her anxiety disorder and the mental health plan that has been formulated.

4. The Family Consultant considered that there is an enmeshed relationship between the mother and her older daughter. That is to say that the thoughts, feelings and beliefs of the child are indistinguishable from those of the parent. She expressed a clear concern that the subject child is at risk of modelling her behaviour on that of the adults, that is, her older half-sister and her mother.

5. The Family Consultant considered that the mother was unlikely to have changed her view about sexual abuse by the father of the child having occurred.

6. On the central issue of whether there should be a change of residence for the child to the full time care of the father, the Family Consultant observed that the impact on the mother would be considerable but in her view, several significant deficits in the mother’s parenting capacity should be given weight over the attachment between the child and the mother.

7. In considering this recommendation but not adopting it, I take into account that the experience of the mother’s older child has been significantly different. The mother and her first husband, the older child’s father, separated when the child was somewhere between four and six years, continued with shared care until that arrangement fell away when the father moved away to northern Queensland. In about 2002, the mother married for a second time to a man who had a son from a prior relationship. That married endured for about six years. During that period of time the mother’s older child was taken out of school and there were frequent changes of residence. The mother then married for the third time to the father in these proceedings in circumstances which were surprising and unsettling for the elder child. She travelled to North Africa with her mother for the wedding and was a witness to the dramatic breakdown of the marriage and subsequent allegations of abuse.

8. For the subject child, in the event that both her parents are involved and the father maintains his commitment, the development to independence is likely to be quite different.

9. I also take into account the father’s ability and willingness to encourage a relationship with the child with the mother whether or not the child lives with him.

10. The impact that the Family Consultant spoke of on the mother if there were to be a change of residence was related to her concerns about the mother’s mental health, depression and the possibility of self-harm. Such an impact is also a matter that I take into account.

11. I took the Family Consultant’s evidence to mean that the mother lacks the capacity to make the child feel secure in the world but is an adequate parent in providing appropriate food, clothing, shelter, nursing in illness and overall care.

12. In my view the Family Consultant is right to voice strong concerns. The affidavits relied on by the mother continued to raise alarm and complaints about the child in the care of the father despite her evidence otherwise in the witness box.

13. I endorse the Family Consultant’s analysis that the child has an inexperienced father highly motivated to care for her and willing to seek advice, and an experienced mother who is somewhat anxious and reluctant to accept advice.

The Law

1. The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

4. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.

Parental Responsibility

1. The mother proposes equal shared parental responsibility. The father’s position before the Court is sole parental responsibility although in his oral evidence he revealed an openness to both parents being involved in the life of the child.

2. It seems to me that in the particular circumstances of this case where the mother is an experienced parent but has some identified problems and the father is an inexperienced parent but is very committed to both caring for the child and learning, that each has something important to offer the child and neither should have complete control over her life.

3. For that reason I consider that equal shared parental responsibility is generally preferable. However the history of education of the mother’s older child is sufficiently concerning for there to be an allocation of parental responsibility for education at school to the father to ensure her attendance.

4. The parents live close by in a small town and provided that the school has all the contact particulars for the mother and she is able to receive information about the child, the benefit to the child is continuity of education and a high likelihood of attendance and attention to academic progress.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

1. The child, now aged two years, has her most meaningful relationship with her mother but has developed through short periods of supervised time, a loving and playful relationship with the father. She clearly delights in his company.

2. The child should have the benefit of those two relationships despite the past acrimonious history between the parents.

The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

1. The legislation requires that safety be given priority over meaningful relationship.

2. There are risks associated for the child in the mother’s care.

3. Allegations of sexual abuse of the child were raised and persisted with on the basis of fixed belief rather than any external support from third parties for an extended period of time. The serious consequence was that the child was cut off from her father during her infancy.

4. There is also a risk of psychological harm if the mother and members of her family are overtly, or even covertly, critical and suspicious of the father.

5. There is also a risk to the child of a disruption in the relationship between herself and the mother at her young age and unknown risks in that relationship if she were to be abruptly removed into her father’s care.

Additional Considerations

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. The child is very young infant. When observed by the Family Consultant at about 11 months of age, the child was assessed to be on track developmentally. She was also noted to interact well with others and presented as a happy, active child.[9]

   [9] Family Report dated 4/12/2015, par 108

2. The child when observed with the father, laughed and smiled at him, laughed delightedly when tossed high up into the air and caught by her father.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. The child has important relationships with her mother, her father, her older half-sister Ms D, her maternal grandmother. She has not yet met any member of the extended paternal family but she may do so, particularly if the paternal grandmother travels to Australia.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

1. The mother initially excluded the father from the child’s life and there was a long period when the father was unable to see the child at all. He has at all times wanted to see the child, participate in making decisions, spend time with the child and communicate with her.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. The Court was urged by the Family Consultant and on behalf of the father to change the residence of the child. The impact on the child is unknown. The Family Consultant predicts that the adverse impact on the mother would be considerable with consequential adverse impacts for the child.

2. There are risks associated with leaving her in her mother’s care, particularly given the evidence in the Family Report of aspects of the mother’s personality and her fixed beliefs about the possibility of abuse of the child.

3. However, I am inclined to accept the evidence of the mother that although she is probably still inclined to think harshly and negatively of the father, she has given up her belief that the child has been abused and has accepted the need for the relationship to develop and continue.

4. A change in the child’s circumstances to increase the amount of time she spends with the father is likely to be a positive benefit, providing respite for the mother who is in employment and giving the child the undivided attention of her father, whose company she greatly enjoys.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. There are limits on the capacity of each of the parents. Both were somewhat incapacitated by the circumstances of their marriage and explosive separation soon after the father arrived in Australia for the first time.

2. The relationship between them, despite their marriage, was untested and did not survive when it was.

3. The evidence supports a finding that the mother is open to new ideas, is a strong minded and competent person but has come to bitterly regret engaging in a relationship with the father marrying him in the way she did.

4. The evidence supports a finding that the father is an intelligent and well-educated man, somewhat immature and inexperienced, naïve in believing that his marriage to an Australian woman 13 years older than him, in a country he had never visited would flourish or even survive.

5. Both parents have the capacity to meet some of the needs of the child. She will need the input of both of them to have all of her needs met.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

1. The child is now two. She has an Australian mother whose first language is English and who has an antipathy to the country of her father’s birth. The child’s father is North African. He speaks his native language as his first language, also English and others. He is keen to introduce his daughter to the culture and religion of his country of origin and is also pleased and proud to have become an Australian and to be raising a child in this country.

2. The child herself is apparently outgoing, resilient, gregarious and active.

The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

1. Each parent takes parenthood seriously. The mother underestimated the importance of the father in the child’s life and to some extent, still does. The father has been shocked to find that his marriage could so easily come to an end but has remained committed to his belief that a child needs both parents in their life.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

1. Although Police have become involved in disputes over whether or not the father could spend time with the child, there has been no family violence orders made.

Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child

1. The question was raised of interim orders for a period to enable the child to develop a deeper relationship with her father and a reconsideration of residence at some later date.

2. To some extent that has happened. There have now been interim orders in place for almost six months which have introduced overnight time thus providing for the child to spend one night and parts of four days each week with her father.

Conclusion

1. I have concluded that the child has done well in her mother’s care and has been too young to be directly exposed to her mother’s ideas and actions around her belief that the father had sexually abused her. She had genital examinations more than once as the mother pursued her idea in that regard. Of course, if such allegations were raised again the impact on the child would be much more significant.

2. The child is developing well and enjoys the relationship with each of her parents. I do not consider that it would be in the best interests of the child to abruptly remove her from her mother’s care into the full time care of her father who is a most loving and committed father, but also an inexperienced one in terms of providing full time care seven days a week especially for a child who is likely to be distressed and even anxious at being removed from her mother’s care.

3. I consider that given the proximity of the parties that the best outcome for the child is for there to be an expanding program of time between herself and the father until an arrangement akin to shared care is achieved, although not equal time.

4. In the event that there was non-compliance with the orders or allegations about abuse of the child which were found to be unsubstantiated, it is likely that the matter would come back to Court for review on the question of residence. However, I consider that risk is a less damaging one than an abrupt change of residence now despite some risks as detailed in these reasons.

5. Orders are also made to restrain the child being removed from Australia by either parent. In the circumstances of this case a parent wishing to travel overseas with the child, more likely the father, will be obliged to apply to the Court in the event that the parents did not agree.

6. Orders are made accordingly.

I certify that the preceding one hundred and thirty nine (139) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 2 February 2017.

Associate: 

Date:  31 January 2017