LEVINE & MULLIN

[2019] FCCA 438

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEVINE & MULLIN [2019] FCCA 438

Catchwords:
FAMILY LAW – Parenting – consideration of s.61DA of the Family Law Act 1975 (Cth) – sole parental responsibility – child live with Applicant grandmother – supervised time with Respondent mother – allegations of sexual abuse unfounded – child’s wishes.

Legislation:

Family Law Act 1975 (Cth), ss.4, 60CA, 60CC, 61DA, 62G

Applicant: MS LEVINE

Respondent: MS MULLIN

File Number: AYC 124 of 2017

Judgment of: Judge Hartnett

Hearing dates: 19, 20, 21 February 2019

Delivered at: Albury

Delivered on: 22 February 2019

REPRESENTATION

Counsel for the Applicant: Dr Behrens

Solicitors for the Applicant: Binnie & Associates Lawyers

The Respondent: In person

Counsel for the Independent Children's Lawyer: Mr Sperling

Solicitors for the Independent Children's Lawyer: Legal Aid New South Wales Albury

ORDERS

1. All previous parenting Orders be discharged.

2. The Applicant Grandmother have sole parental responsibility for the care, welfare and development of [X] born on … 2007 (‘the child’).

3. The child live with the Applicant Grandmother.

4. Until 31 March 2022, the child spend time and communicate with the Mother as follows:-

   (a)should the Mother reside in Town A, once each month being the last Sunday of each month to commence in March 2019, from 1pm to 5pm in Town A, with changeover to occur at the Town A Community Church lunch venue, such time spent with to be in the presence of an adult person agreed upon in writing between the Applicant Grandmother and the Mother and, failing agreement, to be determined by the Applicant Grandmother;

   (b)should the Mother reside in Melbourne, once every three months to commence on the last Sunday in March 2019, from 1pm to 5pm in Town A, with changeover to occur at the Town A Community Church lunch venue, such time spent with to be in the presence of an adult person agreed upon in writing between the Applicant Grandmother and the Mother and, failing agreement, to be determined by the Applicant Grandmother; and

   (c)on the Mother’s birthday for two hours between 4pm to 6pm in Town A, with changeover to occur at the Town A Community Church lunch venue, such time spent with to be in the presence of an adult person agreed upon in writing between the Applicant Grandmother and the Mother and, failing agreement, to be determined by the Applicant Grandmother.

5. The Applicant Grandmother forthwith authorise any school at which the child attends to provide to the Mother, upon the Mother’s request and at her expense, all school newsletters, academic reports in respect of the child and notices pertaining to school events.

6. The Mother be at liberty to send the child letters and presents, and for that purpose, the Applicant Grandmother will provide the Mother with a postal address and keep that postal address current and the Mother is at liberty to send the child text messages and for that purpose, the Applicant Grandmother will keep the Mother updated as to the child’s telephone number.

7. The Applicant Grandmother will provide the child with an email account and permit him to email the Mother if he expresses a wish to do so.

8. The Applicant Grandmother will permit the child to telephone the Mother and/or his sister [Y] if he expresses a wish to do so.

9. The Mother shall advise the Applicant Grandmother of any change of address or telephone number within 7 days of such change occurring.

THE COURT ORDERS BY CONSENT THAT:

1. In the event the child is in need of urgent medical treatment or is to be hospitalised for any reason then the person in whose care the child is at the time of the said incident shall contact the other party as soon as practicable after the said incident.

THE COURT ORDERS THAT:

1. Neither party will make critical or derogatory remarks about the other or members of the other’s family in the presence or hearing of the child and will do all things necessary to ensure that no other person makes any critical or derogatory remarks about the other or members of the other’s family in the presence or within the hearing of the child.

2. The Order made on 4 December 2017 appointing the Independent Children’s Lawyer be discharged one month from this day. The Independent Children’s Lawyer shall explain these Orders to the child prior thereto.

3. Otherwise all extant applications are dismissed and the matter is removed from the list of active cases.

AND THE COURT NOTES THAT:

1. Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), 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 the Annexure and these particulars are included in these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ALBURY

AYC 124 of 2017

MS LEVINE

Applicant

And

MS MULLIN

Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. In these proceedings the Applicant is the maternal grandmother of the child and the Respondent is the mother of the child and daughter of the Applicant.

2. The proceedings were commenced in April 2017. At trial, the Applicant proceeded on a further amended initiating application which was filed at the commencement of the trial. That further application set out orders sought in respect of which the Respondent and the Independent Children’s Lawyer had notice. The evidence filed by the Applicant supported the making of orders as sought by her.  The orders sought by the Applicant were also sought by the Independent Children’s Lawyer, a fact of which the Respondent had knowledge prior to the commencement of the proceedings. 

3. The child in respect of whom parenting orders are sought is [X] who was born on … 2007 (‘[X]’).  [X] is now aged 12 years.  [X] has lived with the Applicant from September 2010 when he was approximately three years and eight months of age.  At that time, he commenced to reside with the Applicant in Town A (on a farming property). He has remained so residing since that time to the present.  In that same period of time, the Respondent has resided in Victoria at a number of differing residential locations. 

4. The Applicant relied upon:-

   a)her further amended initiating application filed on 19 February 2019; 

   b)an affidavit of evidence-in-chief sworn by the Applicant on 9 November 2018 and an affidavit of the Applicant sworn on 11 February 2019 but only as to paragraphs 132, 133, 195 to 202 and 203 to 217 inclusive of that affidavit.  Those paragraphs so relied upon provided the Court and the parties with necessary information concerning the child’s current circumstances as they existed past the November 2018 affidavit placed before the Court by the Applicant; 

   c)an  affidavit of Dr B, psychologist, sworn on 23 April 2018; 

   d)an affidavit of Mr C, husband of the Applicant, sworn 30 October 2017;

   e)a notice of risk dated 18 April 2017. 

5. The Independent Children’s Lawyer relied upon:-

   a)an affidavit of Ms D, sworn 23 November 2018, clinical psychologist, to which is annexed an expert report, dated 7 November 2018;

   b)the family report of Ms E, family consultant, dated 24 November 2017;

6. The Respondent relied upon:-

   a)her response filed 13 October 2017; 

   b)a notice of risk filed 13 October 2017; and

   c)affidavits of the Respondent, sworn 13 October 2017 and 8 June 2018.

7. There was also before the Court, information provided by the Department of Health and Human Services in response to a s.69ZW of the Family Law Act 1975 (Cth) (‘the Act’) order made by the Court on 4 December 2017.

8. At the commencement of the proceedings, Counsel for the Applicant indicated to the Court that she had filed and relied upon an amended case outline on behalf of the Applicant dated 19 February 2019. Counsel for the Independent Children’s Lawyer indicated that the Independent Children’s Lawyer relied upon a case outline dated February 2019. The mother indicated that she sought orders that differed from those set out in her response document. The mother had reduced those proposed orders to a written form. The mother sought orders as follows:-

   “ 1) I would like [X] to live with me full-time. remain at the same school and retain all his extra curricular activities including sports, church. 

   2) [X] to see his gradmother [sic] once a week for 2 hrs and at any other agreed time for a coffee or such with mother present.  Grandmother welcome to visit after school for 20 minutes or so any time, with notice, at mothers residence.  Mr C is not to attend. 

   3) Mother have sole parental responsibility and notify or invite grandmother to applicable school and extra curricular activities. 

   4) Any of the grandmothers visit times to be restricted to a public place like a restaurant if Mr C is to attend.  The place must have CCTV or video surveillance and be populated (not an empty park)

   5) Grand mother may attend every Christmas and birthday event

   6) Grand mother may call [X] at any time. 

   7) In lieu of Full custody orders being rejected, I seek that

   a) The grandmother and mother have equal shared parental responsibilities. 

   b) the grandmother notify in writing the mother prior to making or exercising major decisions like not applying to [X]’s music scholarship program.

   c) That [X] spend time with mother 2 days and 2 nights per week and have alternating weekend visits from Friday 4pm to Sunday 6pm. 

   d) Every Christmas is to be with the Mother with the gradmother [sic] to attend lunch on the day of and present opening.  depending on the dates; Christmas eve from lunchtime to boxing day lunch time. 

   e) Birthdays are to be spent with the Mother and grandmother to be invited to any party or arrangement made. 

   f) [X] is to be seen by an independent psychologist agreed to be mother and grandmother no less than 6 times. specialising in child abuse. 

   g) Mother and grandmother attend counselling and nothing is to be discussed outside of that with any other party. specifically [X]. 

   h) Mother is to be notified by grandmother of any school events, parent teacher interviews, sports days, extra curricular activities and given leave to attend. 

   i) [X] be allowed to attend church weekly as it was an activity that he attended for 8 years of his life. Longer than sports.”

9. In the running of the proceedings, the mother also sought that this matter be reviewed by the Court in approximately six months’ time in case there was a need for other or further orders. The mother was not averse to the continuation of further litigation, despite the ongoing nature of the current litigation over a period approaching two years.

10. The Court shall make the orders as sought by the Applicant grandmother and by the Independent Children’s Lawyer for the reasons set out below.

History

1. The Applicant was born on … 1954.  She is currently 64 years of age.  Her husband, Mr C, was born on … 1941.  He is currently aged 77 years.  He and the Applicant commenced their relationship in 1998 and they were married in 2007. Prior to their marriage and in 2001, they purchased a 730 acre property near Town A. The Applicant and Mr C run cattle comprising about 230 breeders.  The Applicant was previously married to Mr F. They separated in 1997. They have four children who are now adults.  Those children are Ms G, Ms H, the mother in these proceedings, and Mr J. Mr C was also previously married and has a son and daughter from his previous marriage.  His daughter and her husband live near Town K and have a daughter with whom Mr C enjoys a close and loving relationship.  His son is not married and has no children.  His relationship with his son is estranged. 

2. The Respondent was born on … 1983. She is now currently aged 36 years.  Her parents separated when the Respondent was 14 years of age.  The Respondent lived with her father in Perth until she was 17 years of age.  In 2000, and at 17 years, the mother lived with the Applicant and Mr C for six months in Melbourne.  She then commenced to live independently. The Applicant and Mr C took up residence in Town A in 2002.

3. In 2005, when the Respondent mother was aged 22, she again returned to live with the Applicant and Mr C, this time in Town A.  Some time later, she returned to Melbourne to live.

4. [X] was born on … 2007. Immediately following [X]’s birth, the Respondent and [X] went to Town A and took up residence with the Applicant and her husband for about six weeks, whilst waiting for a rental property to become available.  That rental property was approximately five kilometres away from the Applicant and her husband’s home. Members of the Town A Community Church and the Applicant helped establish the Respondent in her rental accommodation including by providing whitegoods and furniture. The Applicant’s evidence is that the Respondent was very committed to [X] for his first year of life, breastfeeding him and nurturing him.

5. In January 2009, the Respondent left [X] with the Applicant and her husband for a two week period whilst she searched out rental accommodation in Melbourne. The Applicant then drove [X] to the Respondent’s new address in Suburb L. The Applicant and her husband transported the Respondent’s chattels and goods to Melbourne in a ute and trailer. During 2009, the Applicant and her husband made regular trips to Melbourne, about every two to three weeks.  They assisted the Respondent in her care of [X] during that time, and at other times when the Respondent needed family support. 

6. The Respondent struggled with the care of [X], financially and emotionally.  [X] spent a significant amount of time with his maternal grandmother in both Melbourne and Town A.  By September 2010, [X] was living permanently with the Applicant and Mr C.

7. The period between 2010 and 2015 was one of intermittent contact between the Respondent and [X] for a number of reasons, which included the Respondent’s partners; the Respondent’s lack of residential stability; the Respondent’s financial difficulties; and the Applicant’s increasing concerns about [X]’s exposure to harm whilst in his mother’s care. 

8. In the period from September 2010 until February 2015, and in particular in the latter part, the Respondent and Applicant sought to reach a mediated outcome between them as to the care of [X]. The Applicant and Mr C initiated mediation with the mother, as did the mother with them. On 18 February 2015, the parties signed a Parenting Agreement which provided for [X] to spend time with his mother during school holidays and alternate weekends, from Friday to Sunday.  One of the terms of that agreement was clause (1)(e) which provided as follows:-

   “That without admitting to the necessity of the same that the mother ensures that the child does not come into contact with her friend Mr M during all periods of time she spends with the child.”

9. The entering into of the Parenting Agreement between the parties did not put an end to their conflictual relationship, nor to the difficulties in the Respondent and child spending time together in circumstances where the Respondent was, at times, unreliable. The Applicant became increasingly frustrated with the Respondent’s behaviours and was rather authoritarian in her approach. The geographical distance between the parties’ respective residences added to the tensions and obstacles placed in the way of frequent time spent with.  The Applicant did, however, seek to facilitate the relationship between [X] and the Respondent and the Respondent travelled long distances on many occasions to spend time with [X]. 

10. The ongoing conflict between the parties and [X]’s increased desire to spend little time with his mother resulted in the Applicant bringing these proceedings in 2017. During 2016, the Respondent had gone to Town A on only three occasions to visit [X].  [X], by that time, was engaged in sports and other social and sporting activities in Town A and was disinclined to spend any considerable periods with the Respondent. His activities were, and are, numerous. [X] commenced playing sports with … at the age of five years and is now in the under 13’s team.  [X] is also a member of the sports clubs. Additionally [X] enjoys his life on the farm. The Applicant grandmother and Mr C have bought him some cattle and he enjoys owning them.  He often helps Mr C muster the cattle, including his own mob, and the other cattle of the Applicant’s and Mr C.  He feeds hay to the cattle and he has started to learn to assist Mr C in the marking and ear tags of the calves.  He has attended cattle sales with Mr C when he has not been at school. Farm life has also exposed [X] to the companionship of working dogs and a pet dog. [X] feeds these animals each morning.  There are chickens and ducks on the farm property and [X] goes rabbiting and yabbying with Mr C, taking the small dog … with them. All of these things have kept him busy and mentally occupied. The absence of his mother has been felt less, and her infrequent periods of time spent with him have been accommodated by him.

11. [X] is thriving in the environment provided to him by the Applicant and Mr C.  He completed year six at School 1 Public School in December 2018.  His semester two report was in evidence before the Court. The Respondent, in her evidence, did not consider that report to be a good report. She noted that he had a C average in his academic results.  The report demonstrated, in the Court’s view, that [X] is achieving basic to sound academic results and progressing well.  The general student and principal comments were as follows:-

    “General comment

    [X] is a capable student who has worked hard to reach his potential this semester.  His achievement of academic outcomes is basic to sound.  He enjoys all subjects, particularly PDHPE and Creative Arts, always seeks to do his best and feels that he has bettered his understanding across the board.  He has grown in ability and confidence and this is reflected in both academic and social arenas.  His contribution to school sport should also be noted.  If he is to do well at high school, I suggest he continue to engage fully in all aspects of school life and seek assistance as required.  He may also benefit from a pattern of home-learning that focuses on cementing basic skills in numeracy, spelling and reading comprehension. It has been a pleasure to teach [X] this year and I wish him the best for his future. 

    Student comment

    This semester, I think I have improved in Maths, mostly in multiplication.  I also think I approved in Science because I now know more about forensic scientists and what they do.  I think I need to improve in English, particularly my writing, because I am not very good at it and would like to get better before high school.  Overall, Year 6 has been fun. 

    Principal comment

    Congratulations, [X], on a wonderful final year in primary school.  You have had the opportunity to develop a wide range of skills, both academically and socially.  You have also engaged enthusiastically in extra-curricular activities and I encourage you to continue to do so as you progress to high school.  I suggest you daily listen to fiction and non-fiction text using CDs, suitable podcasts and online books as this will develop skills for all areas of your learning.  I wish you a successful time at high school in the years ahead.” 

Mr C

1. Since the age of three years, [X] has also resided with the Applicant’s husband, Mr C.  Mr C has always included [X] in all farming and outdoor activities that [X] is able to be included in.  The Applicant, in her evidence, said that she had complete confidence in Mr C ensuring [X]’s safety when they are out together.  Mr C drives or walks [X] to the bus stop every morning and has been a great support to the Applicant in her care of [X].  [X] and Mr C have a warm, loving and supportive relationship.  [X] depends on Mr C to provide him with physical, emotional and financial support.  Mr C does so. 

1. In the proceedings, the Respondent made allegations that Mr C had sexually abused [X] and that the grandmother was protecting Mr C.  These accusations were without foundation.  The Court finds, on the totality of the evidence, that Mr C has not, at any time, sexually abused the child, [X].  The allegation by the mother that he has done so, and her stated ongoing belief that this is the case is a significant contextual matter in the now entirely broken relationship between the Applicant and her daughter. The allegation has had a devastating effect on both the Applicant and Mr C. 

2. Mr C was cross-examined by the Respondent. In his affidavit material, sworn 30 October 2017, Mr C categorically and vehemently denied the various allegations of the Respondent in respect of his alleged sexual abuse of [X].  He deposed to being extremely upset with the comments made by the Respondent, which he described as “a real slur on my character.”[1]

   [1] Affidavit of Mr C, 12.

3. In her cross-examination of Mr C, the mother did not cross-examine him as to her various and specific allegations, although it was indicated by the Court to her on more than one occasion that that was a relevant line of cross-examination. She failed to ask Mr C any questions about her very serious allegations. 

4. The mother pursued these allegations with the police who determined no further action needed to be taken.  The Department of Health and Human Services in Victoria were notified as to the Respondent’s allegations during the currency of the proceedings, and the Department of Health and Human Services had no protective concerns.  This has not dissuaded the mother from pursuing her allegations against Mr C at trial, albeit failing to challenge his evidence. The Court accepts the evidence of Mr C and finds that he has had to endure the enormous anxieties and challenges of false allegations made against him. He and [X] have a reciprocally warm and loving relationship.

Dr B

1. The evidence of Dr B was that she has seen [X] on a regular basis since her first appointment with him in November 2012.  She noted in her evidence that in October 2016, [X] appeared to her to be much more confident in terms of his safety.  Even then, at the age of nine years, he seemed to understand his mother had not abandoned him and he was having ongoing access with his mother.  He said he appreciated that his mother was not in a position to parent him and, in addition, told Dr B that he wished to continue living with his maternal grandparents at Town A.  He spoke about how he loved the farming life.  The Applicant told Dr B that [X] was testing the boundaries with her and her husband, Mr C, which Dr B “saw as a good sign as normal development”.

1. Dr B said, as to the involvement of the Applicant in [X]’s life in paragraph seven of her affidavit evidence, which was unchallenged:-

   “I have met with Ms Levine on most if not every appointment with [X].  During the sessions, [X] has invariably been seen on a one-on-one basis and with Ms Levine.  While no formal parenting capacity assessment has been conducted, over the course of assessment and treatment of [X], Ms Levine has been observed to have an excellent parenting capacity.  As part of her parenting capacity, she has been observed to have an excellent capacity to establish and maintain a strong and secure attachment with [X] and to set and maintain appropriate boundaries for [X].”[2]

   [2] Affidavit of Dr B, 6.

2. Dr B observed in 2017, that [X] had developed a sense of anxiety when talking about his mother and the possibility of spending extended times with her.  On 18 November 2017, Dr B met with [X] over concerns [X] had developed after overhearing his grandparents talking about the allegations made by the Respondent against Mr C.  [X] told Dr B that he was aware that his mother had been saying that Mr C had been sexually abusing him.  When asked by Dr B what [X] thought that meant, [X] responded it means, “feeling me,” “bad stuff”, “touching me in the wrong places”, being his “butt and penis”.[3]  Dr B reported that [X], in response, “said in no uncertain terms that [Mr C] had never done any of those things to him.”[4]

   [3] Affidavit of Dr B, 12.

   [4] Ibid.

3. [X] described his relationship with Mr C as “nice”[5] and said that Mr C loved him and looked after him.  [X] said he did not wish to go back with his mother as she would not look after him properly and expressed that he was scared his mother would take him away.

   [5] Ibid, 14.

4. Dr B’s evidence was further and, as set out in paragraph 16 of her affidavit sworn 23 April 2018:-

   “[X] presents as a very happy and psychologically stable young man. He said how he feels closely connected with the local community.  He continues to be observed to enjoy a very strong and secure attachment with his maternal grandmother.  He also has a close connection with the life on the farm and I have no doubt that he would become completely unsettled if he was to be removed from the care of his grandparents.”

5. And, thereafter, as set out in paragraph 19 of the affidavit:-

   “I consider that any attempt to have [X] removed from his current situation would be very serious and detrimental to his personal and psychological development.”

6. The evidence of Dr B was not challenged by the Respondent.  Whilst the Respondent indicated at the commencement of the hearing that she wished to now challenge that evidence, she had made no arrangements for Dr B to be called to be cross-examined and nor had she made any arrangements for Ms D, clinical psychologist, to be cross-examined in the proceedings.  Indeed, the mother had not complied with earlier orders of the Court requiring her to file an affidavit of evidence-in-chief prior to trial.  The last affidavit sworn by the mother was in June 2018 and she had not sought to update her affidavit evidence after that time.  Whilst initially her failure to file an affidavit of evidence-in-chief was met with an application that the matter proceed undefended, the Court determined that the mother had filed two previous affidavits, was present in person, and wished to pursue her response application. The Court ruled that she should be given the opportunity to give some oral evidence in the proceeding with the other parties being given an opportunity to recall witnesses and/or stand the matter down for the obtaining of further instructions and/or do any other thing necessary to alleviate the, prejudicial to them, conduct of the mother in her failure to place evidentiary material before the Court and to provide the other parties with notice of that.  At no time did the Respondent indicate to the other parties that she required any witness for cross-examination. She was able to cross-examine the Applicant and Mr C because both were present at Court and Mr C made himself available.

Other evidence

1. One of the matters which the mother raised in evidence which she had not communicated to the other parties prior to the commencement of the proceedings was that she had signed a residential tenancy agreement to take up fully-furnished premises at Property N, commencing Monday, 25 February 2019.  This came as a complete surprise to the Applicant, given that the Respondent, in all the years that [X] has resided in Town A, has not sought to relocate her residence to be in close geographical proximity to [X].  The Court cannot make a finding as to whether the mother will take up that accommodation option next Monday or whether she will not.  Her evidence is that she has given up the rental lease on her Suburb O premises, and that she has no other accommodation available to her other than the accommodation in Town A which is supported by the Town A Community Church who are the landlord. 

2. There are many vexed issues about this accommodation going forward, but, in terms of its relevance to these proceedings, it places the Respondent in close proximity to [X], being something which has not occurred for some nine years. The Respondent’s evidence is that her sole purpose in seeking out this accommodation is not proximity to [X], but rather she has a number of reasons for seeking out the accommodation which include her seeking out the support of the Church so that she can again be part of the Church community, which supported her earlier in life.  The accommodation also provides her with a necessary place to live at an affordable price and, although she made application for it in May 2018, her occupation of the accommodation, she claims, was not approved until 8 January 2019. At no stage did she convey to the Applicant her intentions in respect of this accommodation nor that the accommodation had been approved.  Her evidence was that, regardless of the outcome of these proceedings, she is making the move. 

3. The Respondent’s daughter, [Y], is a half-sister to [X]. She was born on … 2015 and is now aged three years. She has some health difficulties, which are being treated in Melbourne. The child’s ongoing treatment has, to date, been in Melbourne.  The Respondent also has a close relationship with her two sisters whom reside in close proximity to the Respondent’s current residence.  Despite this family support and the medical needs of [Y], the Respondent’s evidence is that she will return to Town A and remain there in the longer term.

4. In respect of the various allegations made against Mr C, the evidence of the Respondent was that she had reported those matters to the Police, to the Department of Community Services and to the Department of Health and Human Services. She had never reported any instance of alleged sexual abuse to the Applicant until about 2015. She has never sought out any medical treatment for [X] nor made any reports to medical practitioners. Her further serious allegations of alleged sexualised behaviour of [X] from the age of three or four years, and as set out in her affidavit evidence sworn 13 October 2017, commencing at paragraph 33, was not conveyed to the Applicant by the Respondent until after the Respondent contacted the police to, as she said, “voice her concerns”.  This was around 2015.  These concerns of the mother were reported after the mother had signed the Parenting Agreement in which she had agreed that [X] would continue to reside with the Applicant and Mr C.  The Respondent is aware that the investigations in respect of her allegations have resulted in no substantiation of them and no protective concerns by the relevant Departments.  [X] has never indicated that he has been sexually abused by Mr C.

5. In her affidavit sworn in June 2018, the mother also made serious allegations as to sexually inappropriate behaviour by [X] toward his half-sister, [Y].  She further alleged that [X] had made disturbing comments to her about killing animals and, in her evidence, described her concern about [X]’s enjoyment of killing animals and enjoyment in engaging in “violent behaviours to effect their death”. The Court finds on the evidence no sexually inappropriate behaviour directed by [X] to his half-sister, [Y], occurred.  The Respondent’s evidence, that if she determined whilst [X] was in her care that some behaviour of his was deemed to be sexually inappropriate by her towards [Y], she would act to protect [Y] and notify the relevant Departments and Police. The Respondent’s evidence indicated that she had a distorted view, in many instances, as to what constituted sexually inappropriate behaviours. 

6. The Respondent remains of the view that [X] requires counselling in respect of his sexually abusive behaviours as observed and determined as such by her. 

7. In her affidavit sworn 8 June 2018, the Respondent stated, relevantly:-

   “16. During my time spent with [X], I have noticed increasingly concerning behaviour by [X] involving my daughter, [Y], who is 2½ years of age.

   17. I sighted [X] attempting to put his fingers into [Y]’s mouth on a few occasions as if he was trying to get her to lick them.  I also sighted [X] running his fingers around [Y]’s mouth and tapping her mouth trying to get her to open her mouth.    

   18. On one occasion when I was in the shower, I could not find [Y] and discovered that she had gone into the bathroom.  As I looked into the bathroom, I saw [X] almost exposing himself to [Y] through the glass shower screen.  I stepped in in time and [X] immediately turned away from [Y] and covered himself.”

8. The Respondent gave further evidence that [X] had tickled [Y] on her tummy and had told her that [Y] had asked him to tickle her on her vagina.  The mother added:-

   “[X] has also made some disturbing comments to me about killing animals...”[6]

   [6] Affidavit of Ms Mullin sworn 8 June 2018, 22.

9. As against this evidence of the mother, was the evidence of Ms D, an expert in the proceedings, at paragraph 5.1:-

   “…always oriented to person, time, person and place.  The content of [X]’s speech was goal directed and relevant.  He did not show any obsessions or phobias, ideas of reference, hallucinations, delusions, faulty perceptions, perceptual disturbance, misinterpretations of consensual reality or psychotic distortions.  [X]’s thinking appeared to be coherent, logical and sequential and he was able to follow questions, answering appropriately without any tangentiality. There was no indication that [X]’s judgement was impaired and he appeared to give a credible history.  [X] was interested in others and in his surroundings.  [X] only became slightly anxious at times when discussing his experiences at this mother’s.”

10. The allegations made by the Respondent, both against Mr C and against [X] have no corroborative evidentiary basis and were not put to Mr C. They are denied by Mr C and there are no observations made of [X] to support the allegations.  Such allegations may be indicative of the mental health functioning of the Respondent. There is not before the Court a psychiatric or psychological assessment of the Respondent. That is a pity.  There are many aspects of the Respondent’s presentation and belief system that warrant some assessment and explanation.  

11. The Respondent is seeking that [X] live with her and, in the alternative, spend considerable time with her, including overnight time. Her seeking that [X] have ongoing counselling for his sexual abuse of his half-sister [Y], and have only supervised time with her at all times in the mother’s household, is difficult to reconcile with her application, indeed impossible. The placing of [X] in such a position where his mother would find it necessary to supervise his time in the household with [Y], would not be a healthy environment for [X]. [X] would be exposed to the prospect of unsubstantiated complaints about his behaviour emerging in the public arena as alleged by the Respondent.  As one example of the Respondent’s distorted views, [Y] inadvertently and casually observed her prepubescent brother in the shower in circumstances where [X] had covered his penis in response to her entry into the bathroom. [X] had done so in circumstances where the Respondent had precluded [X] from locking the bathroom door. This was an entirely innocent occurrence. But as described by the Respondent, it was suspect and placed [Y] at risk.

12. The Respondent’s allegations as to [X]’s enjoyment of killing animals and the extreme and violent manner in which he kills those animals, are not accepted on the evidence before the Court.  Much of the evidence before the Court describes [X]’s love of animals and his interest in and knowledge of them.  As was said by Ms D, clinical psychologist, in her report, at paragraph 5.8, as to the damaging effect of the Respondent’s false allegations:-

    “Ms Mullin’s opinions about her son acting in the sexually inappropriate manner towards his half-sister and engaging in cruelty to animals are potentially highly damaging to her son, particularly if they continue into his adolescence, when any adverse labelling could damage the future of this bright young man.  The allegations have not been substantiated.  In my opinion, it is critical that [X] is protected from the risk of this by any time with his mother being in a neutral location and not involving overnight stays.  This risk must be weighed against [X]’s right to know his mother and half-sister, in the context of him being of an age when his time should increasingly be spent in pursuing and enjoying his own interests and sporting activities and in spending time with his peers, as he moves towards greater independence during adolescence.”

13. Ms D recommended that [X] spend a short time, supervised, with his mother and half-sister at a cafe in Town P four times a year. 

14. Dr B’s evidence was also that allegations of the Respondent in respect of [X]’s behaviours were very serious indeed.  Her evidence was that [X] had adamantly denied ever being cruel to animals in her many sessions with him and that he adamantly denied killing any fox (as alleged by the Respondent), even when hunting. Dr B interviewed the Applicant and Mr C who also said they had never seen [X] being cruel to any animal. Indeed, he was gentle with animals.  He wished to be a veterinarian and had recently been engaged in work experience with a veterinarian.

15. In her s.62G of the Family Law Act 1975 (Cth) (‘the Act’) report dated 27 November 2017, family consultant, Ms E, recommended that [X] remain in the care of his maternal grandparents and spend planned time with his mother once a month if his mother continued to reside in Melbourne and negotiated time during school holiday periods. Ms E noted that [X] should not be exposed to the conflict between the parties and that he should continue the opportunity of engaging in child-focused counselling with Dr B, clinical and forensic psychologist, which has occurred, much to the benefit of [X].

16. When seen by Ms E in November 2017, [X] very clearly expressed a wish to continue living with his maternal grandparents with whom he had lived for many years and to continue living on the farm. He noted his future goal was to become a veterinarian. [X] stated to Ms E that he “wasn’t sure” about spending time with his mother and younger sister during the planned and upcoming weekends.  [X] stressed that he felt most comfortable “living with nan and Mr C”. He commented that his only worry was “Mr C being old, he might die, I would feel sad if this happened, it would be horrible, I like doing things with Mr C and he teaches me on the farm.”[7] [X] stated to Ms E that he felt “safe and secure” with his maternal grandparents and would not like to move from their home and farm.  He confirmed that he had the opportunity of speaking with psychologist Dr B and described that as helpful. 

    [7] Family Report, 29.

17. At that time, being November 2017, [X] also described the periods of time which he was required by Court order to spend with his mother as being times when he would attend out of sufferance.  He did not wish to miss out on his sporting activities in Town A and in the surrounding district in order to spend time with the Respondent.  At the time of Ms E’s interview with [X] in November 2017, [X] had not spent time or communicated with the Respondent since early 2017.  The Respondent was, of course, at liberty to communicate with him throughout that period but did not do so.

18. Ms E noted the inability of the parties to communicate and make decisions in respect of [X] over the years and ongoing.  She noted that both parties expressed to her “negative, critical and untrusting views of each other”.

Conclusion

1. The Applicant made the decision to initiate these legal proceedings in order to secure [X]’s living arrangements. It is noteworthy that the Respondent did not do so and had not done so since [X] went into the care of the Applicant in 2010. The Respondent had participated in mediations and agreed to enter into a Parenting Agreement in 2015, but she had not otherwise sought to disturb the status quo of [X] continuing his residence with his maternal grandparents.

2. Since the birth of [Y], the Respondent has refused any relationship with [Y] and the Applicant. The Respondent has done so, it would seem, because of her belief that she has been denied a meaningful relationship with her son, [X], by the Applicant. The facts do not bear this out. The Applicant grandmother has been supportive, over an extended period of time, of the Respondent’s relationship with [X], so long as it was conducted within appropriate boundaries. That situation existed until the Respondent’s unfounded allegations against Mr C were made during the course of these proceedings. In that context, it was impossible for the Applicant to willingly engage on a frequent basis with her daughter whom she felt had deliberately lied. This was then compounded by the Respondent’s subsequent allegations as to [X]’s sexualised behaviours and her potential to report them in circumstances where they did not exist. The outcome for [X] could be quite catastrophic. 

1. [X] impressed Ms E as a bright boy with his own views in relation to his family circumstances. He described “loving and close emotional bonds with both his maternal grandparents, his life on their farm and engagement in his school and various sporting and social activities.”[8] Whilst he acknowledged that he is a “big brother”, he also expressed some emotional distance in this sibling relationship. 

   [8] Family Report, 41.

2. Ms E noted that the matter was complex and distressing for all involved, but that [X] had clearly indicated his preference to remain in the care of the maternal grandparents with a cautiousness in respect to future arrangements with the Respondent. Ms E considered that:-

   “[X] is emotionally attached to Mr and Mrs Levine and that he has experienced a disrupted and challenging relationship with his mother.”[9]

   [9] Family Report, 45.

3. The Respondent’s application that [X] live with her, as set out in her response, had no reasonable prospect of success.  [X] has lived with the Applicant for nine years, and since his infancy at the age of three.  He has lived on the farming property owned by the Applicant and Mr C, and his accommodation has been consistent throughout.  He has excelled at sport; applied himself academically during his primary school years; engaged in the life of the school; had the companionship of his fellow students; and has taken an active interest in every activity that has been provided to him by the Applicant and Mr C. He has now moved to the local high school.  He is 12 years of age, is mature and expresses strong wishes to continue his residence with his Applicant and step-grandfather, both of whom he loves, and in whose company he finds enjoyment and stability. His wishes are given considerable weight by the Court.

4. The Respondent has spent time with [X] intermittently over the years that he has resided with the Applicant.  That time spent with until the commencement of these proceedings was generally supported by the Applicant, although that is not a matter that the Respondent concedes.  The Respondent has lived at a number of addresses, and has often not told the Applicant where she is residing.  The Respondent has never had full-time employment and has struggled to support herself financially, including to the present time, where she has now increased financial obligations with the support of her child [Y].

5. [X]’s medical needs have been well met by the Applicant.  He has suffered from asthma and has preventative medication, Seretide, taken daily, and Asmol, when needed.

6. The Applicant has at no time witnessed [X] engaging in sexualised behaviours; nor has his school, or anyone else, save the Respondent, raised any such concerns with her.  The Respondent raised her concerns with the Applicant well after the events in relation to which she claimed to have concerns.  Indeed, she did not detail her allegations as to [X]’s behaviours until her affidavit sworn 13 October 2017.

7. [X] has not only gone for long periods without seeing the Respondent, but he has also gone for long periods without her initiating any contact with him.

8. The Respondent has never sought to initiate an application that [X] live with her since she handed him into the care of the Applicant when he was three years of age. In 2015, she agreed to the continued residence of [X] in the care of the Applicant. Her application (that [X] live with her) at this time in [X]’s life, when his sporting activities and friendships are becoming increasingly important to him, amongst all the other factors described above in these reasons, was an application impossible to accede to.  [X] has made it clear since being ordered to spend time with the Respondent that he has become increasingly frustrated and resentful on missing out on sporting and social activities in order to make the long trip to Melbourne to spend time with his Respondent and his much younger half-sister.

9. The sexual abuse of [X] allegations as allegedly perpetrated by Mr C have caused great trauma and sadness for the Applicant and her husband.  The Applicant’s evidence is that her husband has been:-

   “…a wonderful husband and given me a lot of comfort and support during my troubled times in dealing with Ms Mullin.  I have no doubt whatsoever that Mr C has never done anything but good for [X].  Mr C and [X] are like father and son.  [X] adores Mr C and Mr C loves [X] and gives generously of himself and his time to [X].”

   The Applicant has never held any concerns about her husband’s interactions with [X].  She has never observed anything other than love and respect between [X] and his step-grandfather.  That same positive relationship has been observed by each of the other witnesses in the proceedings, including the expert witnesses.

10. Section 61DA(1) of the Act provides that:-

    “When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”

11. At the commencement of these proceedings, the Applicant’s only knowledge as to [X]’s father was that derived from the Respondent, being that [X]’s father was unknown. Thus he was not joined to the proceedings. The Respondent disclosed during the trial however that she did indeed know the name of [X]’s biological father, and that although on the birth certificate of [X] he is stated as unknown, she has always known the father’s identity. She receives no child support payments for [X] as a result of her seeking some form of exemption through Centrelink.  Her evidence was further that when she determines it is an appropriate time to tell [X] the identity of his father, she will then do so.  But she will not do so before then.  This, of course, is highly detrimental to [X]. He has been precluded a relationship or attempted relationship with his father and the emotional support that may have provided to him. Additionally, he has been deprived of possible financial support in circumstances where the Respondent has often been in considerable financial distress, a situation which has, from time-to-time, impacted upon [X].  Furthermore, the Respondent’s evidence is that [X]’s father resided in Town A, and so may continue to so reside.  The evidence of Dr B is that [X] has told her that his mother has warned him against forming relationships with girls in Town A because of a possible parental link to his father. The Respondent denies that she has said this to [X].  But whether she has or has not, and it is not necessary for the Court to make a finding in that regard (in these proceedings) it is clearly in the best interests of the child that he know the identity of his biological father. An order compelling the Respondent to provide this information has not been sought by the other parties in this proceeding. The Court determined it not to afford the mother procedural fairness, and indeed to be prejudicial to her given her lack of legal representation to allow the parties to make an oral application for an order of that type. The Respondent is encouraged to inform the child of his biological father in the near future.

12. The Applicant seeks sole parental responsibility in respect of [X]. The Court finds that it is not possible that the presumption of equal shared parental responsibility with the Respondent can apply, because, under s.61DA(2) of the Act, the presumption does not apply if there are reasonable grounds to believe that a parent of the child, in this case the Respondent, has engaged in, abuse of the child or family violence.

13. The abuse that has been suffered by [X] is that as set out in s.4 of the Act, definition of abuse, to mean, relevantly:-

    “ … (c)  causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence…”

14. The Respondent has caused [X] to suffer serious psychological harm in the false allegations made by her about his sexualised behaviours toward his half-sister [Y]. Her allegations are and have the potential to continue to be emotionally damaging to [X].

15. Additionally, the Court is satisfied, pursuant to s.61DA(4) of the Act, that the presumption is also rebutted by evidence that is before the Court, being the totality of the evidence as described in these reasons, which satisfies the Court that it would not be in the best interests of [X] for the Applicant and Respondent to have equal shared parental responsibility for him.

16. Whilst the Applicant was combative and argumentative in the giving of her evidence at times, she was also a very credible witness.  She has done her best to support [X] and to support her daughter in what are extremely difficult and sad circumstances.  Her heightened inability to deal with her daughter at the present time is in the context of the allegations made against her husband, and about [X], by the Respondent.  The parties have no ability to communicate effectively, a matter which is so essential for the exercise of equal shared parental responsibility.

17. Pursuant to s.60CA of the Act, [X]’s best interests are the paramount consideration of the Court. Pursuant to s.60CC(2A), the Court is to give greater weight to the matters in sub-section(2)(b) of s.60CC(2) of the Act, which is the need to protect [X] from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence, than to the matters in to sub-section (2)(a) of s.60CC(2) of the Act, which is the benefit to [X] of having a meaningful relationship with the Respondent.

18. When considering the additional considerations as set out in s.60CC(3) of the Act, which include the child’s wishes, the Court also finds in particular that the Respondent has failed to take the opportunity to spend time and communicate with [X] on many occasions. She makes and has made no real financial provision for the child, and exhibits no insight into the highly damaging likely effect on [X] of a change in residence.

19. The Applicant’s capacity to provide for the needs of [X], including his emotional and intellectual needs, far exceed that of the Respondent.  The Applicant has taken on the responsibilities of caring for [X] in an often fraught situation, that being of conflict with the Respondent.

20. It is not practicable, given the current geographic distance between the parties, which may alter imminently, for there to be substantial and significant time spent with between [X] and the Respondent.  More importantly, it is not in [X]’s best interests that occur. 

21. Whilst the Respondent’s evidence remains that she considers [X] a risk to her daughter [Y], such that all time spent with between [X] and [Y] must be supervised by her, and her adamant insisting on [X] being required to undergo counselling for “established” inappropriate sexual behaviours toward his sister, [X] is at risk in being in the unsupervised care of the Respondent. That is the view of the Independent Children’s Lawyer and the Applicant, and, more particularly, the view of the expert witness, clinical psychologist, Ms D.  Her evidence is unchallenged and highly persuasive, as is Dr B’s.

22. Over a lengthy period of time, the Respondent abdicated her responsibilities as a parent to the Applicant and to Mr C.  Even at trial, there was no evidence that the Respondent had the capacity to meet [X]’s physical, emotional and financial needs.  Indeed, there was much evidence to the contrary.

23. Supervised time spent between [X] and the Respondent will guard against any further unfounded allegations being made by the Respondent about [X], and further protect [X] from the damaging consequences that would follow.

24. [X] has seen Ms E, Dr B and Ms D, all independent experts. None have concluded that [X] is anything other than a happy, well-mannered, well-balanced, normal child, who engages in no problematic behaviours of any description. The Respondent simply rejects their evidence. In doing so she appears insightless as to her son’s nature.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 4 March 2019