Licha and Wunscher

FAMILY COURT OF AUSTRALIA

LICHA & WUNSCHER

[2008] FamCA 147

FAMILY LAW – MAGELLAN - final orders made in February 2007 with acknowledgment child not at risk of sexual abuse in father's care - breach of orders - maintenance by mother of allegations of sexual abuse - emotional abuse as result of mother's unshakeable conviction of sexual abuse - interim move to father's full-time care - refusal by mother to see child in supervised environment - balancing need to maintain meaningful relationships with both parents with need to protect child from harm - orders for sole parental responsibility - child to live with father - no time or communication with mother, save by correspondence

Family Law Act 1975 (Cth) ss 60B(1), 60CC(1), (3)(d), (4), (4A), 61DA, 65DAA(1) and (2), 118

Watson and Morton (2007) FLC 93-331
Rice & Asplund (1979) FLC 90-725
Edwards & Edwards (2006) FLC 93-306
M and M (1988) 166 CLR 69
B and B (1993) FLC 92-357
Re W (Sex abuse: standard of proof) (2004) FLC 93-192
WK & SR (1997) FLC 92 -787
W & W (abuse allegations; unacceptable risk) (2005) FLC 93-235

FATHER:

Mr Licha

MOTHER:

Ms Wunscher

INDEPENDENT CHILDREN’S LAWYER:

Independent Children's Lawyer

FILE NUMBER:

MLF

6928

of

2003

DATE DELIVERED:

11 March, 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Brown J.

HEARING DATE:

11,12,13, 14 and 15 February, 2008

REPRESENTATION

COUNSEL FOR THE FATHER:

Mr. Ham

SOLICITOR FOR THE FATHER:

Pearsons Schetzer & Associates

THE MOTHER:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr. Marchetti

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Septimus Jones & Lee

Orders

That all previous parenting orders and injunctions relating to the child … born … August, 1999 (“the child”) be discharged.

That the child live with the father and he have sole parental responsibility for her.

That the mother be and is hereby restrained from contacting or communicating with the child save in accordance with these orders.

That the mother may communicate with the child by sending her letters, cards and gifts by ordinary pre-paid post addressed to the postal address provided by the father pursuant to paragraph (14) hereof, and the father shall do all things reasonably necessary to deliver such items to the child PROVIDED THAT the father be at liberty to open and read items of correspondence and inspect gifts and, in his absolute discretion, determine that an item should not be given to the child if it contains material which is inappropriate or likely to cause the child emotional distress.

That the father do all things reasonably necessary to encourage the child to send letters, cards and gifts to the mother by ordinary pre-paid post addressed to the postal address provided by the mother pursuant to paragraph (13) hereof.

That it be within the absolute discretion of the father to determine :
(a)whether the mother may spend time with the child, and the time, duration and place at which that may occur;
(b)whether any such time be supervised and if it is :
(i)the nature of such supervision; and
(ii)the identity of the supervisor;
(c)whether the mother can have telephone communication with the child; and
(d)the nature and extent of any such telephone communication;
and unless the parties agree to the contrary, the costs of any supervision of the mother’s time with the child be borne by the mother.

That without limiting the generality of paragraph (3) hereof the mother be and is hereby restrained by herself, her servants and agents from :
(a)attending within 100 metres of the child’s school and residential address, save with the written consent of the father;
(b)attending events or functions (including but not limited to sporting events, parent/teacher interviews and school or extra-curricular concerts or performances) at which the child could reasonably be expected to be present, save with the written consent of the father; and
(c)contacting the principal, teachers or other staff at the school attended by the child from time to time, save with the written consent of the father.

That as soon as practicable the father authorise the principal of the child’s school to post to the mother (at her expense, if any) a copy of each school report for the child and an order form for each school photograph of the child.

That as soon as practicable the father provide a sealed copy of this order to the principal of the school attended by the child.

That the father advise the mother in writing of any proposed change of the child’s school no later than fourteen days prior to the date of commencement at the new school.

That the father advise the mother as soon as practicable of any serious illness or injury suffered by the child and keep her advised of the child’s prognosis and treatment, and it shall be a matter for the father to determine, and advise the mother in writing, if the mother shall have contact with the child at such time or times, or contact with any treating medical practitioners or like professionals.

That the father do all things necessary to cause the child’s name to be registered as … Wunscher-Licha (in the event paragraph (7) of the orders made herein on 14 February, 2007 has not been complied with) and each of the mother and father be and are hereby restrained from causing or permitting the child to be referred to, known as, or enrolled at school as anything other than … Wunscher-Licha.

That the mother keep the father informed of a postal address to which items can be sent pursuant to paragraph (5) hereof and a telephone number at which she can be contacted in an emergency.

That the father keep the mother informed of a postal address to which items can be sent pursuant to paragraph (4) hereof and a telephone number at which he can be contacted in an emergency.

That the father ensure that the child continues to attend upon Dr. R or such other expert as recommended by Dr. R and the father be responsible for payment of costs associated with his attendances on Dr. R and the child’s attendances on Dr. R.

That in the event Dr. R advises the mother in writing that, in his opinion, it would be in the child’s best interests for :
(a)the mother to attend upon Dr. R; and/or
(b)the mother to attend a consultation he has with the child;
the mother may attend upon Dr. R PROVIDED THAT she abides by all lawful directions made by him and is responsible for costs associated with her own attendances.

That as soon as practicable the father undertake the parenting program conducted by G Centre or such other parenting program as is recommended by the independent children’s lawyer and the court notes that the father consents to this order.

That until further order each of the parties, by themselves, their servants or agents be and are hereby restrained from removing or attempting to remove the said child … born … August, 1999 from the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch list until further order of the Court.

That as soon as practicable the solicitor for the father serve a sealed copy of this order upon the proper officer of the Australian Federal Police at Melbourne, AND IT IS REQUESTED that Australian Federal Police give force and effect to this order.

That the mother be and is hereby restrained by herself, her servants and agents from removing the child from the father’s possession or the possession of any person with whom he has placed the child and in the event the mother does remove, or attempts to remove, the child, she may be arrested without warrant.

That the independent children’s lawyer meet with the child within fourteen days, at a time and place nominated by her and explain to the child the effect of these orders and she be at liberty to liaise with Dr. R and obtain his advice as to how best to facilitate this order.

That the independent children’s lawyer be discharged one month from this date or, in the event a Notice of Appeal is filed, upon determination of the appeal.

That a copy of the reasons for judgment herein may be made available to :
(a)Ms. W;
(b)Dr. R;
(c)the principal of a school attended by the child and, in his or her absolute discretion, any teacher or other member of staff working with the child;
(d)any medical practitioner, psychologist or like professional working with the child; and
(e)the Department of Human Services and Victoria Police, in the event a notification is made relating to the child or allegations are made about her care or safety.

That all extant applications be otherwise dismissed.

That these proceedings be removed from the List of matters awaiting finalisation.

That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

AND THE COURT NOTES

That the effect of paragraph (12) is to restate paragraphs (7) and (8) of orders made herein on 14 February, 2007.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 6928 of 2003

Mr Licha

Father

And

Ms Wunscher

Mother

Independent Children’s Lawyer

REASONS FOR JUDGMENT

The child is the daughter of Mr Licha and Ms Wunscher. She was two when her parents separated under the one roof, and three at the time of their physical separation. She was still three when her father filed an application in the Federal Magistrates’ Court, seeking a shared parenting arrangement. She is now eight. Litigation between her parents has consumed much of the intervening years. Her history, and that of her parents, has been rehearsed in numerous reports and earlier judgments. So, too, has some of the evidence now before me. The central questions for the court are the time the child is to spend with each of her parents and who should have parental responsibility for her.

Until 30 August, 2007, the child lived with the mother and attended L School. Her contact with her father had been fractured and irregular, despite numerous orders aimed at normalising it. On 30 August, 2007 Bennett J. ordered that the child spend continuing time with the father, an order confirmed by Carter J. on 13 September. The child moved to live with her father and his wife. They brought the child to L School for the balance of the year and then enrolled her at a local primary school near their home, which she has attended since the start of first term in 2008. The father and his wife (Mrs Licha) take the child to school and, when he is working, the father’s wife collects her. The child had supervised time with her mother at G Centre until 30 November, 2007. The mother then refused to spend further time with the child at G Centre. She has not seen the child since 30 November, 2007.

In earlier proceedings the mother alleged the father had sexually abused the child. Those allegations were, in theory, abandoned when final parenting orders were made on 14 February, 2007 but, as the evidence before me demonstrated, the abandonment was notional, rather than real.

THE PARTIES

The mother is 46 and lives in T with her mother and brother. She is a qualified medical practitioner and, until late 2007, conducted a practice. She presently sees a few patients at her mother’s home.

The father is 53 and lives in E with his wife, Mrs Licha, whom he married in October 2007. The father’s wife is 46. Both are employed with a welfare agency but the wife has been on leave, referable to problems with her back. The father works four days a week, from 9:30 am. to 5:30 pm., having Tuesday off. The father’s wife anticipated returning to work on a part-time basis, working three days a week, between 10:00 am. and 2:00 pm.; she will have Tuesday and Thursday off.
The father conceded a criminal history (of dishonesty offences, in the context of gambling) prior to separation and a depressive episode after separation, for which he received treatment.

LEGAL PRINCIPLES

The provisions in the Family Law Act 1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
Section 60B of the Act sets out the objects of the part of the Act dealing with children and the principles underlying them, in these terms :
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.

When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.

There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.

If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).

EVIDENCE

Findings are made on the balance of probabilities having regard to the evidence and my observations of the demeanour of witnesses. In what follows, statements of fact constitute findings of fact.

The father relied on an amended application for final orders filed 21 November, 2007, an affidavit sworn by him and filed on 30 November, 2007 and an affidavit sworn by his wife and filed on 30 November, 2007. Both were cross-examined.

The mother was represented until shortly prior to the trial and the response and affidavits on which she relied were prepared by her lawyer. She relied on a response filed on 23 November, 2007, an affidavit sworn by her, an affidavit of a psychologist, Ms T and an affidavit of a psychiatrist, Mr G, all filed on 30 November, 2007. That same day she filed an affidavit sworn by her brother. After discussion on the first day of the trial, she declined to rely on it. In the course of cross-examination, reference was made to material in an earlier affidavit sworn by her at a time she was acting for herself. It was sworn and filed on 22 August, 2007. As it dealt with matters not covered in the later affidavit, leave was granted to rely on it, too.

The mother and Ms. T were cross-examined. No party required Dr. G for cross-examination. I rely on his evidence.

The independent children’s lawyer relied on the following witnesses :
·Ms. W, a family consultant employed by this Court, prepared five written reports dated, respectively, 19 August, 2004, 21 April, 2005, 13 October, 2005, 6 March, 2006 and 21 March, 2006. She gave lengthy evidence before Bennett J. on 29 August, 2009 and further evidence before Carter J. on 13 September, 2007. The transcripts of that evidence were relied on by the ICL.
·Dr. R is a child and adolescent psychiatrist. He was appointed as a single expert witness to assess the child and his first report was dated 1 November, 2006. Orders of Guest J. of 14 February, 2007 provided for him to play a continuing therapeutic role, which he did, albeit with some interruptions. Before the Court were subsequent reports by him dated 28 March, 2007 and 13 November, 2007. Dr. R gave evidence before Carter J. on 13 September, 2007, and a transcript of that evidence was relied on in this trial.
·Dr. A is a psychiatrist who prepared psychiatric assessments of the parties pursuant to orders made by Bennett J. on 31 August, 2007. Those assessments are contained in reports dated 30 October, 2007.
·Ms. E is the co-ordinator at G Centre, the service which facilitated contact between the father and the child for some time and, in the latter part of 2007, contact between the mother and the child. She prepared a short report, dated 10 September, 2007 and a much longer report dated 12 November, 2007.
·Ms. S is an educational psychiatrist employed L School who worked with the child during 2007. She gave evidence before Carter J. on 13 September, 2007 and the ICL relied on the transcript of that evidence.
Ms. W, Dr. R, Dr. A and Ms. E were all cross-examined. Ms. S was not called during the trial.

PROPOSALS

The independent children’s lawyer prepared a minute of the orders proposed, which was adopted by counsel for the father in final submissions. The only additional order sought by him was an order restraining each of the parties from removing the child from the Commonwealth of Australia, save by order of a court. A copy of that minute is annexed to these reasons for judgment. The handwritten amendments on it relate to amendments or additions referred to in the final submissions of counsel for the ICL.

The father and ICL each proposed the child live with the father and he have sole parental responsibility.

In terms of the mother’s face to face contact with the child, the ICL and father proposed a minimum period of six months of supervised time at G Centre, on a weekly basis if the service were able to facilitate that, followed by supervised weekly time, for a minimum of three hours, to be professionally supervised by Ms. Hazelhoff or Angelico Community Services or other commercial, professional supervisor. It was proposed that the child only commence spending time with her mother at G Centre upon the mother confirming her commitment to that course and that time be suspended if the mother failed to attend on three consecutive occasions. It was proposed that the child spend such further time with the mother as was agreed between the parents; it was put that this envisaged the potential for unsupervised time in the future, were the mother to address the conduct which, in the short term at least, raised the necessity for supervision.

The ICL and the father proposed that the mother have liberty to apply to seek further unsupervised time with the child if supported by a report from her psychiatrist, Dr. G, recommending unsupervised time, but that no application be made before 31 December, 2008. As I noted in the course of discussion with counsel, it is unlikely such an order would be made, having regard to the principles discussed by the Full Court in Watson and Morton (2007) FLC 93-331. Were the mother to bring an application soon after these proceedings are determined, she would need to adduce evidence of new facts and circumstances and, if the court were satisfied that the proceedings were frivolous or vexatious, could face the prospect of an order being made pursuant to s.118 of the Family Law Act 1975. The principles laid down in Rice v. Asplund (1979) FLC 90-725, which were reviewed and restated by the Full Court in Edwards v. Edwards (2006) FC 93-306, may well result in any fresh application of the mother being given short shrift unless changed circumstances or new factors were disclosed. That does not mean an order should be made restraining her from bringing an application in this court within an arbitrarily set period.

In final submissions the mother advanced three potential scenarios. Her primary submission was that the child should return to her care. She and the father should have joint responsibility for her and both should be involved in her life. The father should spend time with her, whether on alternate weekends or (possibly) half the time. The mother did not propose that the father’s time with the child be supervised.

The mother submitted that if that were not possible, and the child were to live with the father, she should have unsupervised time with the child for two to three hours on Wednesdays and one day on each weekend, for a period of two months. That should move to time on Saturday or Sunday from 9:30 am. to 5:00 pm. and, after a further two months, to alternate weekends from Friday afternoon until Monday morning. It should then move to the child spending one week with her mother and one week with her father or some other form of equal division. Were the court not prepared to make orders in those terms, there should be a regime of structured supervised contact, but with a supervisor of the mother’s choosing with whom the child was comfortable.

Although the third proposal paid lip service to supervision, the mother submitted that during any periods of supervised time she should be free to go alone to the child’s school and curricular activities, and sought that the child be involved in ongoing joint counselling sessions with her and Ms. T.

Similarly, the mother submitted that even if the court ordered no contact, she should be able to attend school concerts, parent/teacher interviews and similar school and extra curricular activities.

Neither in her primary proposal, nor in the proposal which provided for a phased in regime of unsupervised time with her, leading to an equal division of time, had the mother considered the question of the school to be attended by the child. Asked about this in the course of her final submissions, she variously said that the child could stay at her present school in the E area and she could get her brother to drive her there, or arrange a mid-point place between E and T at which to collect her, or that the child could be enrolled in a school halfway between her parents’ homes, or at a school closer to her. When discussing travel arrangements (including arrangements were the child to remain at school in the E area or – as the mother proposed – be enrolled in a school halfway between E and T) the mother said that as the child gets older she could walk or take public transport to school. The kindest conclusion one could draw is that the mother had never considered the issue and was thinking on the run.

Whatever orders the court made, the mother submitted that the father and his wife should have psychiatric or psychological counselling to help them come to terms with the importance of her having input into the child’s life and to assist them in being able to communicate with her.

WITNESSES
The father

The father was not untouched by the years of litigation and the animosity directed at him by the mother. Although his demeanour was generally calm and reasonable, he did make comments critical of the mother, on occasions, and one could see how easily they could slip into well rehearsed exchanges. That said, I do not doubt his commitment to the child having a continuing relationship with her mother and he has demonstrated a remarkable personal commitment to his daughter, given the hurdles put in his way since the parties separated. In general I found him to be an honest witness, doing his best to describe events as he now recalls them.

Mrs. Licha

The husband’s wife was an impressive witness. She and the father met in 2006 and began living together around Christmas that year. Both work for a welfare agency and met when the father was doing voluntary work where Mrs. Licha is employed. He, too, is now employed by the agency. Mrs. Licha was clearly very nervous, but she did not present, as the mother subsequently tried to paint her, as vulnerable or fragile. To the contrary, she struck me as a sensible and robust woman with a clear understanding of her role as stepmother, rather than mother, to the child. She was honest and direct and I accept her evidence

The mother

There was evidence from both Dr. R and Ms. W of the, at times, difficult presentation of the mother, consistent with findings of Guest J. on 14 February, 2007. It should be said that during the hearing before me she was at all times courteous and respectful. She was also frank about her intentions. Only when cross-examining Ms. W was her tone sarcastic, and Ms. W did not respond in kind.

Aspects of the mother’s evidence were inconsistent and illogical and she tended to reconstruct the evidence of others to suit the case she would like to make, something not unusual in a litigant who represents him or herself. Similarly, she tended to rely on one small piece of evidence, ignoring the context in which it was given, and attempt to build on that slender foundation an edifice supportive of her case.

For example, the mother was keen to point out that the school report at the end of 2008 (after the child had been with her father for a few months) noted that the child was often tired at school, and submitted this showed the child was not flourishing in her father’s care. She ignored the fact that the child’s tiredness had been a concern of the school for much of the time the child lived with her mother, and Dr. R’s evidence, and that of Ms. E, of the significant and positive changes after the child’s move. Similarly, she sought to rely on the fact that the child still experiences some nightmares as proof that moving to live with her father and his wife had not solved any of her problems, a submission which is untenable when considered in the light of the evidence of Dr. R.

Dr. G was first consulted by the mother on 3 October, 2007 and had weekly sessions with her until the date of his report, being 28 November, 2007. Dr. G described the mother as someone with only partial insight and limited self-understanding. In his opinion she has limited capacity to see herself and her behaviour objectively and appears to have an exaggerated sense of entitlement. She seems to overvalue her capacity to care for her daughter and is dismissive of any potential difficulties in her relationship with her daughter. From a diagnostic perspective he described the mother as having a Narcissistic Personality Disorder.

In the courtroom, and particularly when considering proposals, the mother was defensive, rigid and adopted an entrenched position, behaviour consistent with what Dr. G described as a defence against awareness of vulnerability. I cannot have confidence in her capacity for objective recollection; that may arise from a limited capacity to see herself and her behaviour objectively, as described by Dr. G, rather than any wilful intention to invent or mislead.

Ms. T

The orders of 14 February, 2007 provided for the mother to attend, forthwith, on Mr. P, for therapeutic and reportable purposes in order to address her parenting and the allegations made by her of sexual abuse. She was to attend as directed on a reasonable basis and to be responsible for the cost. The order of 14 February, 2007 which provided for the child to live with her does not appear to have been conditional upon the mother’s compliance with the requirement to attend on Mr. P, or on other requirements. As events transpired, there is little point in considering the enforceability of the order. The mother did not attend upon Mr. P. Some seven months after those orders were made, she consulted Ms. T, another psychologist. Ms. T deposed that the mother sought counselling from her :
. . . due to the distress that she was suffering as the result of the protracted legal proceedings with her former partner, […], and with her daughter […] being removed from her care and now seen by her only under supervision.

Ms. T first saw the mother on 29 September, 2007 and when she swore her affidavit on 26 November, 2007, had engaged in five sessions. In the witness box she confirmed that she saw the mother on 26 November, 2007 and had not seen her since. She knew the case was initially listed for trial in December 2007 and said her understanding was that the mother would resume the counselling once the proceedings started.

The mother’s evidence of her reasons for consulting Ms. T was at odds with other evidence adduced by her. She maintained the position that she only consulted Dr. G, a psychiatrist, after advice from her solicitor that it would not be sufficient for her case to call evidence of a psychologist. Given that the order of 14 February, 2007 required her to see a psychologist, I cannot know the basis of any such advice. I can say that her recollection of seeing Ms. T for some time, and only then consulting Dr. G (as advised by her solicitor) was incorrect, as she contacted Dr. G in September 2007 and first saw him on 3 October, 2007, some four days after first seeing Ms. T. Dr. G reported that he saw the mother weekly between 3 October, 2007 and 28 November, 2007. Thus, the mother was seeing two treating professionals concurrently, a counter-productive course, as Dr. A observed, and one unlikely to be helpful unless each had separate and defined roles, which was not the case here.

Ms. T knew nothing of Dr. R’s reports or evidence and was not aware the mother was seeing Dr. G. Having been shown Dr. G’s report, Ms. T said she “struggled” with it because, to her, the mother said that the child needed to have time with her father but was adamant that the behaviour the mother attributed to the child only occurred after she had been with her father. From Ms. T’s perception, the behaviour described to her was explicable only in terms of either the sexual abuse asserted by the mother or some other behaviour which caused the child to fear her father. Ms. T said she gained no impression that the mother was unstable, inconsistent or had any psychiatric problems; in her assessment she was extremely distressed and felt she was being pilloried when she had done nothing wrong.

While I understand that a treating professional has to work with the information given to him or her by the client or patient, and when pressed Ms. T conceded that her opinion was only as good as the history given to her by the mother, she gave the impression of a too ready acceptance of a history which might have alerted a more detached professional to the need for caution and, possibly, psychiatric assessment. I must find her assessment of the mother to be rather simplistic and naive, particularly when seen against the assessments of the mother’s treating psychiatrist, Dr. G, and the evidence of Dr. A, Dr. R and Ms. W.

It is probable Ms. T never sighted the orders of 14 February, 2007, so was unaware that the mother had, at that time, conceded or acknowledged there would not be an unacceptable risk of abuse when the child spent time with her father. She proceeded on the basis that the mother’s view that the father had sexually abused the child was unshakeable, that there was no other rationale for the child’s (reported) ongoing nightmares and other associated signs of trauma and that until that occurred, the mother was likely to hold a degree of concern about the child’s safety until the child was old enough to be left safely alone with the father or until the child’s symptoms of anxiety and trauma abated. From Ms. T’s point of view, that concern did not translate into any desire or active attempt by the mother to alienate the child from the father.

Ms. T’s assessment was that the mother is open to change and to receiving instructions. One need go no further than the mother’s response to the orders of 14 February, 2007 to disprove that assessment. I cannot find that the history given by the mother to Ms. T was accurate, either in the descriptions of the child’s behaviour or her protestations that the father needed to have time with the child. In these circumstances I do not place significant weight on Ms. T’s evidence. I do note that even she described the mother as hyper-vigilant and prone to give remarks and behaviour the most negative connotation. Her opinion that it would be helpful for the mother and the child to engage in several sessions of joint therapy “around the time when they are able to spend time together unsupervised” was not shared by others involved with the child’s care; it was the mother’s insistence that she be part of the child’s counselling which resulted in her refusing to continue to take the child to Dr. R in March 2007 (as she was required to do), as he had a different view of the child’s therapeutic needs.

Dr. R

Dr. R first saw the child for assessment in August 2006 and assessed her again later that year. Pursuant to the orders of 14 February, 2007, he played a therapeutic role and in that capacity saw her three times soon after those orders were made, and resumed treating her later in the year. He is in an excellent position to advise of changes in her psychiatric state and presentation. He impressed me as a thoughtful and reflective witness, who responded to cross-examination by the mother gently but clearly, and I have confidence in his expertise and professional judgment.

Dr. A

Dr. A prepared an assessment of the mother dated 30 October, 2007, based on one consultation. Having read the reports of Dr. G and Dr. R he said that both assessments were consistent with his, and did not greatly change his views. Referring to Dr. G’s diagnosis of narcissistic personality disorder, Dr. A said he consciously did not make that diagnosis as he thought it was premature on a single interview but he did not express a contrary view. He spoke of the benefits to the mother of continuing therapy or counselling, while cautioning that it would not change her personal structure. His evidence served to corroborate the evidence of those who have had more involvement with the mother and I place weight on it.

Ms. W

Despite her long involvement with the matter, and allegations of being biased against the mother, Ms. W presented as an objective and professional witness, who did not react to the sarcastic tone in which the mother cross-examined her, and remained focused on an assessment of the child’s emotional state and needs. Her evidence was cogent, balanced and analytical and of great assistance to the court.

Ms. E

Ms. E has been the co-ordinator of G Centre for the entire time the family used the service. While not frequently involved in supervision herself, she has supervised contact between the mother and the child on one occasion, and had many dealings with both parents in the years in which the father saw the child at G Centre. She was a thoughtful and direct witness, keen to assist the child’s maintenance of relationships with both parents and, I am satisfied, a truthful witness.

CHRONOLOGY

As Guest J. recorded in a judgment delivered on 14 February, 2007, the father was born in Iraq in 1954 and the mother was born in Australia in 1961. They commenced living together in May 1998 and the child was born in August, 1999. They separated under the one roof in April 2002. In June 2002 they entered into an agreement as to parenting and financial issues and in November 2002 physically separated. The child continued to live with the mother and to spend time with the father, by agreement. Agreement was short lived and on 9 April, 2003, the father filed an application in the Federal Magistrates’ Court, seeking orders for shared parenting.

The following summary of events prior to the orders of 14 February 2007 is brief, as it is events since that date which are of most significance in the case.

On 26 May, 2003 orders were made in the Federal Magistrates’ Court, by consent, providing for the mother to have residence, and the father to have contact each Sunday between 9:00 am. and 5:00 pm., and each Wednesday between 4:00 pm. and 7:00 pm.

On 27 July, 2003 a notification was made to the Department of Human Services by the father, alleging exposure of the child to “psychiatric illness and emotional trauma”. The file was closed a week later.

On 26 September, 2003 the mother reported to DHS that the child had disclosed that her father had sexually abused her. She suspended contact. The child was interviewed twice by DHS and by the Sexual Offences Child Abuse Unit and made no disclosures. Again, the file was closed.

By that time the father had filed contravention applications, alleging breach of the contact orders of 26 May, 2003. DHS received a further notification alleging that the child was displaying concerning behaviour at school but took no further action, closing the file on 26 November, 2003.

On 12 December 2003 the father withdrew his contravention applications and, by consent, the contact orders were varied to provide for contact on Wednesday and Friday between 2:30 and 5:30 pm. The case was transferred to this Court.

On 19 December, 2004 another notification was made to DHS, alleging that the child disclosed physical abuse by her father. Again the child was interviewed by SOCAU. She disclosed that her father “touched” her on the “inside of her bottom”. The father was interviewed by police and denied all allegations; on 29 December, 2003 SOCAU advised that the police investigation would not proceed further. The next month DHS workers interviewed the child, who made a disclosure, and the Department recommended supervised contact and a specialist assessment from SECASA.

The “disclosures” made by the child to a number of professionals have involved the same brief statement, to the effect that her father put his finger in her bottom.

Between that date and 14 February, 2007 five family reports were prepared by Ms. W. Both parents were psychiatrically assessed by Dr. K. A child psychiatrist, Dr. R, assessed the child. By consent, orders were made on 24 August 2004 for the father to have supervised contact with the child at G Centre; that commenced in November 2004 and ceased in August 2005. On 25 October 2005 orders were made – not by consent – providing for the father to have contact with the child, supervised by Ms O. The child was not produced and the father filed a contravention application in early November. Eventually, the G Centre arrangements were reinstated.

Almost four years after proceedings were initiated in the Federal Magistrates’ Court, the trial commenced before Guest J. on 6 February, 2007. On the sixth day of hearing, Guest J. made final parenting orders, by consent. As their terms are important to the litigation now before the court, I set out those orders of 14 February, 2007 in their entirety :

1. That all previous parenting orders be discharged.
2.That the parties have equal shared parental responsibility for decisions regarding the long term care, welfare and development of the child […] born […] August 1999.

3. That the child live with the Mother.
4. That the Father spend time with the child as follows:
(a)On Friday 16 February and Friday 2 March 2007 at [G Centre] Mentone at times to be advised by [G Centre];

(b) Thereafter for a period of 6 months as follows:
(i)each alternate Friday from 4pm to 7pm commencing 9 March 2007 with the Father to collect the child from […], at the commencement and return the child to the Mother's residence at the conclusion of his time;
(ii)Each alternate Sunday from 10am to 6pm commencing 18 March 2007 for a period of 3 months;

(c)Thereafter for a period of 3 months from 10am on Saturday until 6pm on Sunday each alternate weekend commencing 16 June 2007;
(d)Thereafter from 4pm Friday until 6pm Sunday on each alternate weekend during school terms commencing 14 September 2007;
(e)For one week during each of the three mid year school term holidays commencing in the September 2007 school holidays at times to be agreed and failing agreement:
(i)for the first week during 2007 and each alternate year thereafter; and
(ii)for the second week during 2008 and each alternate year thereafter.

(f)For half of the long school term holidays at times to be agreed and failing agreement:
(i)for the first half of the 2007/2008 long school term holidays and each alternate year thereafter; and
(ii)for the second half of the 2008/2009 long school term holidays and each alternate year thereafter.

(g) On Christmas Day:
(i)from 3pm Christmas Day to 3pm Boxing Day 2007 and each alternate year thereafter; and
(ii)from 3pm Christmas Eve to 3pm Christmas Day 2008 and each alternate year thereafter.

(h)      On the child's birthday:
(i)       from 3pm to 7pm if the birthday falls on a non school day; and
(ii)       from 5pm to 7pm if the birthday falls on a school day.

(i)       On the Father's birthday:
(i)       from 3pm to 7pm if the birthday falls on a non school day; and
(ii)       from 5pm to 7pm if it falls on a school day.

(j) On Father's Day from 10am until 6pm;
(k) At other times as may be agreed between the parties.

5.        The Father's time with the child pursuant to paragraph 4 be suspended:
(a)      On Mother's Day from 10am;
(b)      On the Mother's birthday:
(i)       From 3pm to 7pm if her birthday falls on a non-school day;
(ii)      From 5pm to 7pm if her birthday falls on a school day.

(c) On Christmas Day:
(i)From 3pm Christmas Eve to 3pm Christmas Day 2007 and each alternate year thereafter; and
(ii)From 3pm Christmas Day to 3pm Boxing Day 2008 and each alternate year thereafter;

6.That save where otherwise provided for, changeover for periods of time spent by the Father pursuant to these Orders shall take place at the Father's residence at the commencement of each period and at the Mother's home at the conclusion of each period.
7.That each of the Mother and Father do all things necessary to cause the child's name to be registered as "[… Wunscher-Licha]".
8.That each of the Mother and Father be and are hereby restrained from causing or permitting the child to be referred to, known as or enrolled at school as anything other than [… Wunscher-Licha].
9.That the Father be authorised to request from the Principal of any school attended by the child that the school forward to the Father, at his expense, copies of all school notices, newsletters, reports and applications for photographs.
10.That the Father be permitted to attend school events to which parents are normally invited including but not limited to parent-teacher interviews, concerts, fetes and sports days.
11.That each party provide the other with no less than 14 days prior written notice and particulars of any change of address and/or telephone number.
12.That each party notify the other in the event of any serious illness or injury affecting the child whilst she is in their respective care.
13.That the Father shall ensure the child attends her dance lessons, should such lessons coincide with his time with the child in accordance with these Orders.
14.That the Father shall purchase an asthma pump for the child to be used as necessary.
15.That save as provided for in these Orders, the Mother be restrained from subjecting the child to any medical, psychological or other examinations save for an emergency medical examination or treatment (and upon immediate notice to the Father of any such medical attendance).

16. That the Mother be restrained as follows:
(a)From referring to, discussing, questioning, or commenting to or in the presence or hearing of the child in relation to issues of sexual abuse;
(b)Save for the therapeutic purposes, from knowingly causing permitting or allowing a third party to conduct himself or herself in accordance with subparagraph 16(a) hereof.

17.That the Mother be restrained from denigrating, insulting or rebuking the Father to the child or in her presence or hearing or from knowingly causing, permitting or allowing another person to do so.
18.That the Independent Children's Lawyer forthwith arrange for the child to attend upon Dr [R] or such other professional as may be nominated by the Independent Children's Lawyer for therapeutic and reportable purposes.
19.That the child's parents shall abide by the directions of Dr [R] (or his nominee) and fully co-operate with any treatment plan AND FURTHER that the Mother be solely responsible for the payment of any professional fees relating to her and/or the child's attendance(s) save that the Father be responsible for the payment of his attendance(s).
20.That the Mother forthwith attend upon Mr [P] for therapeutic and reportable purposes in order to address the Mother's parenting and her allegations of sexual abuse AND FURTHER to attend as directed on a reasonable basis and be responsible for payment of any fees.
21.That pursuant to paragraphs 19 and 20 Dr [R] and Mr [P] be at liberty to liaise with each other and the school counsellor in relation to the child's and the mother's progress and therapeutic counselling.
22.That the mother be at liberty to continue to utilise counselling services for the child at the child’s school, and such counsellor be at liberty to liaise with Dr [R].
23.That the Independent Children’s Lawyer provide forthwith a copy of these Orders and Ex Tempore Judgment delivered 14 February 2007 and Dr [R’s] report and Ms [W’s] reports to Mr [P].
24.That the Independent Children’s Lawyer forward to the child's school a true sealed copy of these Orders and the report of Dr [R] filed in these proceedings as soon as practicable.
25.That the Independent Children’s Lawyer forward to Dr [R] a true sealed copy of these Orders, the Ex Tempore Judgment delivered 14 February 2007 as soon as practicable.
26.That the Independent Children’s Lawyer forward to the Manager of [G Centre] a true sealed copy of these Orders as soon as practicable.
27.That the appointment of the Independent Children’s Lawyer expire six months from the date of these Orders.
28.That all extant applications be dismissed and removed from the list of cases awaiting final hearing.
29.That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS CERTIFIED
30. That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

IT IS DIRECTED
31.That the subpoenaed documents be returned to the persons or entities received therefrom.

AND IT IS NOTED THAT:
AThe parties intend for the child to have her first appointment with Dr [R] at 2 pm or 27 February 2007 and thereafter for the Father to attend on Dr [R] on 1 March 2007 at 1.30 pm and the Mother on 6 March 2007 at 2 pm.
BMr [P] is available to attend upon the mother by appointment commencing this week.
CThese Orders have been agreed to by all parties on the basis that it is acknowledged that this Court has made no finding of sexual abuse in relation to the child upon application of the requisite standard of proof AND FURTHER that there is no unacceptable risk to the child in relation to any time spent with the Father.

Although those orders were made by consent, Guest J. delivered lengthy reasons for judgment on 14 February, 2007. Presciently, he expressed some doubt that the Court would be free of the matter in the future. He recorded, and made findings in relation to, evidence to the point of resolution and set out the reasons why, in his opinion, the orders advanced by the parties were in the child’s best interests.

The mother told Ms. W prior to the February 2007 orders that she would not comply with orders for unsupervised contact. Cross-examined about this, she said that she told Ms. W that she would probably comply if the child were at a more advanced age, had learnt protective behaviours, and understood them. Her position during the trial before me was that she would contravene orders if she believed there to be a good reason to do so, “as every mother would”. I take her at her word.

Whatever the mother’s intentions when she consented to the making of the orders on 14 February, 2007, it was apparent, within weeks, that she maintained the conviction expressed in that earlier trial that the child had been sexually abused by her father and was fearful of him. In her view, any emotional or psychological problems experienced by the child are a consequence of his abuse and a product of the child’s well-founded fear of being alone with her father.

Until the end of the school year in 2007, the child attended L School, the fees being paid by the mother, with help from her family. There she saw a number of counsellors, one of whom, Ms. S, gave evidence before Carter J. on 13 September, 2007, and was cross-examined by counsel for each of the parties (including senior counsel for the mother) and counsel for the independent children’s lawyer. Ms. S is an educational psychologist and worked with the child from 2006 (probably commencing sometime in the second half of the year) until the child left that school. Ms. S’s evidence was that on 2 March, 2007, having been given a copy of the orders of Guest J., she discussed the notations with the mother. The mother expressed the view that while it had not been proven that the father was a paedophile, she still believed that to be the case. Although at some point in her evidence the mother said she did not know, or was not sure, whether the father sexually abused the child, I have no hesitation in finding that she maintains her conviction of abuse. Both Ms. W and Ms. T described her view as unshakeable. Although the mother endeavoured to demonstrate that Ms. T simply adopted Ms. W’s term, Ms. T would not be led down that path, explaining the reasons she formed that independent opinion.

The first contact pursuant to Guest J’s orders was at G Centre on 16 February. On 19 February the child told Ms. S that her father pretended to be nice. When asked how she knew this, she said “mum told me”. She also said “once he put his finger up my bum and it hurt, and he didn’t wash his hands”.

Orders provided for the ICL to arrange for the child to attend upon Dr. R for therapeutic and reportable purposes and for both parents to abide by his directions and fully co-operate with any treatment plan. Dr. R saw the child on 27 February. The following day, the child told Ms. S :
My mummy told me that you would write a letter to the judge saying that I could stay with her. I want to stay with my mummy. I don’t want to live with dad.
Dr. R met with the father on 1 March. The father’s second period of time with the child at G Centre was fixed for the afternoon of Friday 2 March. It was earlier on that day that the mother spoke with Ms. S about the orders, and expressed her view that the father was a paedophile.

The child saw Dr. R again on 7 March and 14 March. The first period of unsupervised contact pursuant to Guest J’s order was from 4:00 to 7:00 pm. on Friday 16 March. The second was on Sunday 18 March, between 10:00 am. and 6:00 pm.

On 21 March the mother met with Dr. R to discuss the purpose and structure of therapy for the child. His evidence was that the mother had difficulty accepting his directions about the structure of therapy (in particular whether sessions would be for the child alone or with the mother as well) and she did not accept that it was his role to determine the structure. She indicated she had great difficulty trusting him. At the meeting on 21 March she demanded he write to the ICL indicating that contact arrangements should change back to supervised access at G Centre. When he indicated he was not prepared to make that recommendation and that he, and she, should continue working within the context of the Family Court orders, she became increasingly angry, hostile and critical. In his report dated 28 March, 2007 Dr. R recorded the termination of the interview, describing the mother’s behaviour as extreme and stating he was shaken and distressed by her level of attack and vitriol. He expounded on that when cross-examined before Carter J. on 13 September, describing a very personal attack and one of the most difficult interviews in his experience as a child and adolescent psychiatrist.

On 23 March the mother wrote to the ICL. She advised that she and the child had ceased attending Dr. R from 21 March, 2007. In that letter (and in oral evidence) she said that the child told her that she did not feel that Dr. R was helping her; to the contrary, he was making her more anxious and confused. While noting that she had not attended the sessions, she said she was “privy to information” that the child gave Dr. R about being scared and anxious to go on contact, and about the child’s expressed wish to return to G Centre. She said Dr. R appeared to disregard these facts and provided no solution or method for the child to deal with her severe anxieties at school and at home. She asked that the ICL find another child and family psychiatrist, possibly government funded, who could “help us both respectfully”; she said she did not want to waste time and money on a practitioner who was not being “conscionable and confident” in helping the child or in respecting her need to feel safe, comfortable and protected.

By 27 March the mother had obtained a statement from Mr M, managing director of a performing art school for children between four and sixteen, at which the child was enrolled. Mr. M did not give evidence but the statement does little to advance the mother’s case. He noted that the child was always full of energy, focused and usually bounding through the door, but over a period of several weeks he had noticed a distinct change in her behaviour. On 3 March he had to take her out of classes, as her behaviour was disruptive, and she was unfocused and had a poor attention span. Speaking about this to the mother, she mentioned that “family issues were a concern”. The following week the child seemed out of sorts but behaved in classes, albeit “without her normal energy”. By Saturday 17 March “all seemed to be back to normal”. Although the mother relied on this as proof of the adverse effect on the child of spending time with her father, the child’s return to her normal energetic and enthusiastic self, was apparent to Mr. M the day after her first unsupervised period with her father. If she were, indeed, happier it may have been a joyful response to that time together.

On 28 March the child told Ms. S that “mum and I want you to write notes for the judge”. Ms. S noted that the child arrived at 10:15 am. that day, and said she was late because she couldn’t sleep the previous night and “mum let me sleep in”. Ms. S’s note then records :
-    Thinking that dad might hurt me
-    Mum and I want you to write notes for the judge
-    I don’t know the kind of things he’ll do
-    He might pick me up the way I don’t like him to. I kicked him in the shin.
In her affidavit sworn 22 August, 2007, the mother deposed that from 18 March there was an observable change in the child’s behaviour and the re-emergence of “previous aberrant psychological behaviours”. She said the child became increasingly distressed and psychologically disturbed, began soiling herself at school, could not concentrate at school and began tearing the skin from her fingertips until they bled. For this reason she did not take the child to spend time with her father on 29 April. Her evidence was of taking her to a general practitioner, Dr. J.

A letter from Dr. J, dated 3 May, 2007 was annexed to that affidavit. It is not an account of a consultation with the child but a statement which, on its face, reads as an account of things reported to him by the mother. Cross-examined, the mother seemed uncertain as to whether the child consulted (that is, was actually seen by him for assessment and/or treatment) or was with her. Dr. J’s report says nothing whatsoever about observing a child’s damaged hands or of any other observations of the child. His letter is in these terms :
[The child] has been visiting her father on weekends for the last six weeks;
She has been showing numerous nervous symptoms prior to her visits, including nail biting, incontinence, difficulty sleeping and appetite loss. [The child] also reports feeling anxious about her visits to her father.
I believe that given the difficulties reported, it was justifiable that [the child] did not visit her father on the weekend 28 April, 2007.

That letter is not consistent with Dr. J personally observing any worrying symptoms or behaviour.

Earlier, on 16 April, the mother had told Ms. S that the child was having nightmares, would not go to sleep, wanted to sleep with her mother and was soiling prior to and after visits at her father’s home. She said the child would not eat at her father’s home. Ms. S suggested ways to alleviate the child’s anxiety, including reassurance that it was safe to be at her father’s. To this the mother replied “I can’t provide that assurance”; she said it was better for the child to remain vigilant in his presence and to be aware that he might do something that was unsafe.

The mother remained adamant that the child soiled herself at school and, indeed, returned from occasions of contact with her father having soiled herself and with faeces still in her underpants. Much later, when she herself was seeing the child at G Centre, on 16 September, 2007, the mother asked the child if she had done poo in her pants and asked if she needed to go to the bathroom. The child replied “no” and continued to play a board game with her uncle. The mother maintained that she smelt faeces on the child during that visit. The detailed notes of the supervising worker were in evidence and it is inconceivable this would not have been noted if it were the case.

Questioned about the soiling when cross-examined before Carter J., Ms. S’s responses were clear. Asked whether she observed or was aware of any soiling at school, she replied “no, there was no soiling at school”. That related to the period to 16 April. Asked about the period between 16 April and 30 August and whether she was aware of any soiling at school, she replied “no”. The mother took the view that Ms. S was a busy person and would not have been aware of the child’s frequent soiling, a highly improbable scenario. On the mother’s evidence, L School provided a wonderful school environment for the child, where she felt confident in confiding in teachers and had excellent support from counsellors, including Ms. S. Again, it is inconceivable that teachers would not bring to the attention of the school counsellor the fact that an almost eight year old girl was soiling herself.

The mother’s evidence was that on 4 May she asked the child if she wanted to spend time with the father and the child said that she did. When the child returned, she was unsettled, had nightmares and soiled herself several times at school the following week. She did not deliver the child for time with the father on 13 May or 18 May, deposing that the child did not want to see him and she saw no point in forcing her.

On 27 May, 2007 the child wrote a letter to the Court. The mother agreed that she assisted her, but “only as a teacher would”. The letter is addressed to “Dear Justice of the Family Court” and is in these terms :
i don’t want to see my dad anymore. because I’m scared of him and he makes me sick and nervous. I can’t sleep. I poop my pants.
Love […].
PS. Please help me

Acting for himself, the father filed an application on 16 May, 2007 in which he sought, among other orders, that the mother “follow the order regarding taking child to Dr. R”. That application was dismissed on 13 June, 2007. On 18 June, 2007 he filed a contravention application, alleging contraventions of the orders providing for the child to spend time with him. By then he had not seen the child since 27 April.

Consideration of that application was delayed as a number of judicial officers disqualified themselves from hearing it. On 29 August, 2007 it was listed before Bennett J. She granted leave to the father to withdraw his contravention application and leave to file an application seeking an interim order that the child live with him. Ms. W gave brief evidence that day. The transcript makes it clear that the mother admitted that she had not taken the child back to Dr. R after the first three sessions and it was apparent she had not consulted Mr. P herself, as ordered. Ms. W referred to the five reports she had written in the matter, advising her Honour that the issues remained the same, being the mother’s inability and unwillingness to accept that there should be any role in the child’s life for her father and her lack of co-operation with any orders made relating to her daughter. Her Honour ordered a transcript of Ms. W’s evidence and of the balance of the proceedings that day, noting that she did this as it would be important for another judicial officer who dealt with the matter to know (as a result of express advice from the mother) that the mother would cease to support the child in any way financially if there were a change in living arrangements. Her Honour adjourned the matter to the following day.

On 30 August the mother brought the child with her to court. The transcript records Bennett J’s advice to Ms. W, that the mother told her that when she told the child she had to return to court, the child said she might like to come and speak to the court. The mother also thought it would be a good idea if the child “got to talk to a section 65L counsellor, which was her turn” but was insistent it not be Ms. W, who she considered biased. Arrangements were made for the child to be looked after in the child minding room of the registry.

Pursuant to orders of her Honour, on 30 August Ms. W met with the father and his wife at their workplace. Ms. W observed a very caring couple. Ms. W then travelled to the house in which the father and his wife live, a two-bedroom unit. She described a sunny Victorian unit, with many photos of the child and a room set up for the child’s use. She described it as a safe and pleasant area in E and appropriate accommodation for a family of three, which was child focused.

Ms. W had arranged to meet with the mother at 12:30 on 30 August, but the mother was late, arriving just prior to 1:00 pm., when Ms. W had to leave to meet the father and his wife. She rearranged the appointment for 2:30 pm. but Ms. W did not get back to the court until closer to 3:00 pm., by which time the mother had left. Eventually, the mother returned and saw Ms. W. The mother maintained her position that the child’s interests would not be served by any more than a few hours with her father.

Prior to speaking with the mother, Ms. W spoke with the child who, pursuant to an order, was in the child minding room. She told the child the judge was going to be making some decisions about her that day and asked if there was anything the child wanted to ask her. The child said she enjoyed seeing her father and his wife but never slept there and didn’t want to; when asked why, she said because she sleeps with her mum and has nightmares if she does not sleep with her mum. Ms. W spoke to the child again after meeting with the mother, at the mother’s suggestion.

In that second conversation, Ms. W told the child that she had been talking to her mother and that her mother said she might have something that she wanted to tell the court. The child said “I don’t want to live with my dad”. When asked why, her response was “he did something horrible to me when I was three years old”. Ms. W continued :
I very gently said to her, because I really didn’t want to push her to have to feel that she needed to redisclose because it might have been distressing, painful, whatever, and I said, “look, how do you feel about talking about it? Would you like to talk about it?” and she sat there and she smiled at me and then she exclaimed, “guess what? I’ve got bad news. I forget”. So that was her response in regard to what had happened to her, what the horrible thing – and she was very happy when she said that. I said, “Is there anything else you wanted to tell me?” “I just want to tell you I don’t want to live with my dad”. She then said she does want to live with her mother. I asked her if she’s worried about her mother or her father and she said “I worry about mum. I worry about her getting sick and stuff”. In fact [the mother] has been ill on and off over the last year. Then I said to her, “Is there anything else?” She said “Nuh, that’s just about it” quite happily, and then she said “I wouldn’t mind going to sleep right now”.
Ms. W’s evidence then was that the child gave a sense of feeling as if she had let herself off the hook; it seemed to Ms. W that she had no memory to dredge up. She interpreted the child’s remark about “bad news” as the child thinking it would be bad news for Ms. W that she could not tell her anything else. Ms. W thought that she had had to tell the story so many times before, she was perhaps expecting to be pushed harder about it.

Ms. W’s evidence was that the child was very much in need of help, to a critical extent, an opinion consistent with Dr. R’s then assessment. She advised Bennett J. that she had made a notification to the after hours service of child protection. She was particularly concerned about a statement made by the mother that :
[The child] is what I wake up for, what my life is about and I’m not sure what will happen to me if I don’t have her. I may have a breakdown, I may not be able to do anything.
Ms. W was very concerned at that time that were the mother to believe that a change of the child’s residence was imminent, she could do damage to herself or to the child. She said the mother was clearly distraught and, in those circumstances, conduct cannot be predicted.
Cross-examined before me, Ms. W maintained her view that the notification she made in August 2007 was consistent with her responsibility to mandatorily report if she felt a child was at physical or emotional risk. At that time she feared that the mother could, out of love for the child, harm the child. In my judgment, she made the appropriate decision.

In the course of the discussion with Ms. W, her Honour put to Ms. W a statement made by the mother to her the previous day, in these terms :
Your Honour, it is my position that because I think part of [the child’s] psychiatric illness is inherited from her father, apart from her fears of her going to be ongoing sexually abused, I just don’t think I could cope with having her with me and sending her then to return to a situation which I do not believe will be sustainable and whether the relationship with [the father] and his current fiancé is ongoing or a stable relationship and whether then [the child] would then be in a situation where she would then be alone with [the father], and I think it would be too heart breaking for me, and I think, as the saying goes, out of sight, out of mind. I think I would then try to just continue my life. I’ll perhaps give up work because I don’t really have any reason to be working to this extent and [the child] was my life and she gave me reason to get up in the morning. I don’t believe I would have any motivation then to continue work and I think it would only cause more emotional destruction to myself and perhaps then I would really need psychiatric care.

Ms. W deposed that the mother had used very similar words to her that afternoon, including the “out of sight, out of mind” expression, and expressed her own concern about the child’s safety. Her evidence was that she would be very concerned about leaving the child with her mother while the mother was as anxious and distressed about the situation as she then was.

After hearing further submissions from counsel for the mother, Bennett J. ordered that until 4 September, 2007, the child spend time on a continuous basis with the father. The hearing concluded at 5:41 pm. and, sometime soon after that, the father collected the child and took her home.

On 4 September, 2007 Bennett J. made further orders, providing for the child to spend time with the father on a continuing basis until 6:00 pm. on the adjourned date, which was 13 September, 2007. The mother was restrained from contacting the child and various procedural orders were made, including the transfer of the matter to the Magellan list.

On 13 September Carter J. heard the father’s application for interim residence. Ms. S, Dr. R and Ms. W gave evidence and were cross-examined. Senior counsel appeared for the mother. Her Honour ordered that, until further order, the child spend time with the father on a continuing basis and that the mother spend time with her on a fully supervised basis at G Centre, at times to be arranged in consultation with G Centre and the ICL. Until further order, the mother was restrained from approaching within 50 metres of L School and from contacting and communicating with the child, other than in accordance with the order. In a judgment delivered that day, her Honour summarised the evidence and submissions.

Late in the judgment, her Honour made reference to the anticipated marriage of the father and Mrs Licha. She found it entirely appropriate for the child to attend their wedding and to play whatever role in it that had been arranged for her. Her Honour noted that the timing would not allow her to see her mother for supervised contact at G Centre that day and she did not find it appropriate for her to do so. She relied on the ICL and the father to attempt to make arrangements for an alternate period of time. It is clear from the judgment that that discussion related to the fact the wedding was scheduled for a day on which contact would otherwise take place at G Centre. In order not to interfere further with contact, the father and his new wife postponed the two week holiday they had intended to take immediately after their marriage.

The mother lives in T and G Centre is several suburbs away. Supervised visits were fixed for alternate Fridays from 4:15 pm. to 6:15 pm. and G Centre agreed to allow the family to utilise the service in alternate weeks, if there were a vacancy. G Centre prepared a calendar to 30 November, 2007, in anticipation of a trial in December. On it the Friday periods were fixed and appointments were shown for each alternate Saturday, between 10:00 am. and 12 noon. These latter appointments were marked with a question mark and the parties had to confirm the availability on the preceding Thursday.

On one occasion the father cancelled the visit; this was on 21 September, 2007. On that day the father was required to attend Dr. A for assessment, which he did. Dr. A required more time than had been anticipated and, told the father had an appointment, asked the father to cancel it. Dr. A did not realise the appointment involved collecting the child to take her G Centre. G Centre offered a visit the following day but the mother indicated she was unable to attend.

Between 7 September and 30 November there were nine supervised visits. The mother’s brother attended with the mother, and drove her to G Centre. His interchanges with the child and his behaviour were appropriate and child-focused, and the child enjoyed her time with him.

Ms. E had some personal dealings with the parties before and after the orders of 14 February, 2007 and herself supervised the visit on 29 September. She compiled a report based on the detailed notes made by the various workers who supervised the other visits.

Ms. E’s evidence was that the child was smiling and energetic on arrival, conversing openly with the father and his wife and separating easily from them to go through to the mother. She was eager to go through to commence contact and generally greeted the mother and her uncle with a smile and a hug. At the point of separation she often initiated a group hug with the family before returning through to the father and his wife.

The child was affectionate to her mother, who was observed to respond to her needs for food, drink and safety. While they engaged in many age-appropriate activities during contact visits, and discussed general issues, the mother was apparently unable to desist from continually asking the child questions in relation to her sleeping arrangements at the father’s house, who takes her to the toilet and who bathes her. She was heard to make comments about the arrangements that had been made in the most recent court hearing and, on one occasion, continued to whisper with the child despite the worker’s attempts to stop it. The mother insisted on engaging the child in an activity of listing people that the child could turn to if she needed to speak to someone about her worries and placing the names on a stencil of her hand. When the mother persisted with this at a second meeting, the child initially indicated that they had already done it the week before and tried to divert the conversation. She then said she wanted the father’s wife to be on the hand, as she could talk to her (the father’s wife’s name was not put on the hand by the mother). The child eventually turned to her mother and said “can we get off this subject? I am tired”.

On one visit (19 October) the mother appeared blank and distracted, refused to go outside to play, asserted there were ticks outside, and asked the child, without looking in her direction, “does dad still jump on you?” She did not respond to the worker who, concerned at her behaviour, asked if she would like a drink, or play with her brother and the child. On the following visit the mother apologised, saying that she had not been feeling well and had a sore throat.

The mother’s evidence of what happened in December 2007 was difficult to understand; at one point she seemed to be asserting that she did not know contact was going to continue, as the calendar prepared by G Centre only went to the end of November. That may be her recollection, but I am satisfied it is not accurate.

Ms. E’s evidence was that G Centre scheduled a contact on 9 December and that the mother rang that morning at 11:45 am. to ask if it were proceeding. G Centre contacted the father who agreed to come to the service; despite a number of attempts, the service could not contact the mother to confirm the appointment. The father and the child arrived. At 3:15 pm. workers rang the mother; there was no answer and they left another message. The father and the child stayed until 4:00 pm. and then left. The evidence was that the child was very disappointed and had been very keen to go through to see her mother.

The next routine Friday appointment was scheduled for 14 December. The father arrived with the child. A worker rang the mother at 4:42 pm. and left a message, and left the same message on her brother’s mobile, with no response. The mother did not attend.

G Centre then tried to arrange a visit for Friday 28 December, which was the next routine Friday visit. The mother rang the service at 11:00 am. and said she had to cancel the visit because she could not get there.

On 11 January, 2008 (the next routine Friday) the mother rang the service and said she would not be able to attend. She said she was temporarily suspending the visits, at least in January, because her eyes were too bad to drive. The worker rang the father and advised him not to bring the child for more visits.

On Thursday 7 February, 2008 the mother rang the service. She left a message that she had not been well during the last days and asked that her call be returned. Ms. E rang her just after 4:00 pm. The mother’s mother answered the phone. She told Ms. E that the mother was sick, had a headache and tumour, and was never coming to the contact service again.

The only contact the mother has had with the child since 30 November, 2007 was a phone conversation on Christmas Day 2007. The father’s evidence was that prior to Christmas he helped the child to write a card for her mother and the child brought it with her to the contact centre in December. When her mother did not come, he asked the child if she wanted to send the card to her mother, but she was very reluctant to do so. That is consistent with the child being angry with her mother and rejecting her, which is the other side of the coin of wishing and longing to spend time with her.

The order made by Carter J. on 13 September, 2007 restrained the mother from contacting or communicating with the child other than in accordance with the orders made that day and those orders made no provision for any contact or communication other than fully supervised time G Centre. Notwithstanding that, the father agreed to facilitate a phone call between the mother and the child on Christmas Day 2007. His evidence was that the mother commenced the conversation by saying that the child should not eat meat, and should not eat dairy. She told the child she was missing her and loved her. He said the child was hesitant, and the listing of things she should not do “just squashed the child”. He said that Uncle F (the mother’s brother) then spoke to the child and cheered her up a lot; she laughed with him and was normal.

Dr. R’s report, dated 13 November, 2007, notes that he saw the child for three individual appointments after her move to her father’s home. The child presented with less anxiety and was relaxed and more at ease. She separated from her father and his wife without difficulty, her mood was happy and there was no evidence of depressed mood. There was minimal or no overt distress. She spoke positively about her time with the father and his wife and of living in their household, and positively about Mrs Licha and her extended family. She also spoke positively about seeing her mother at G Centre, without overt signs of anxiety, something to which I will return. His observed interactions between the child, her father and his wife were positive, nurturing and enjoyable. Dr. R concluded :
[The child’s] psychiatric state has improved substantially since the court’s decision to place her in her father’s care about two months ago. In particular her previous high level of anxiety has settled. The settling of the anxiety leads to her being more relaxed and I expect more able to enjoy age appropriate activities.
Indeed the lack of overt distress evident is quite striking in the circumstances. One might have expected the change of residence to lead to considerable distress in [the child]. [The child] showed strong avoidance and suppression of her feelings about the separation from her mother on these interviews. There is underlying anxiety still about the conflict between her parents. However she is managing the situation well.
Overall the changes in residence to [the child] have led to a positive change to her psychiatric state.

After that, Dr. R saw the child on 18 December and 24 January. He said her mental health difficulties and symptoms had settled dramatically and continue to improve. Her general health and well-being are better; there was a substantial and dramatic improvement since she changed residence. Dr. R’s evidence was unequivocal. In his opinion, the thing which has made the difference to the child’s functioning and well-being is residence with her father.

When told of Mrs Licha’s evidence that the child still has nightmares (about once a fortnight) but settles easily on being comforted, Dr. R said he was not specifically aware of the nightmares but was aware that the child was still expressing some night time anxiety, and that the nightmares described would fit into the pattern. He described how children’s cognitive and mental capacities are easily disrupted by high anxiety and that as the child continues to be less anxious, she would be better able to use those facilities.

Dr. R agreed that when she first moved, the child was unsure about the permanence of the move. However, she quickly grasped the idea of living with her father and going G Centre to see her mother, because that was her model of parenting. That said, he was troubled that she has no image of a successful separated family.

In simple terms, Dr. R described the improvement in the child’s anxiety using expressions like very good and dramatic. He said she is mostly better but not fully better and he would not assume that all her anxiety (or manifestations such as the nightmares) would entirely disappear in six months. He said anxiety of this sort rarely completely disappears. She has relatively little anxiety now, and it does not impact heavily on her life, but it is likely she will be more disposed to anxiety in the future.

The court must then consider the likely effect on the child of changing her residence, and of the proposals for time with each parent. I am satisfied that a move from the primary care of her father at this time would have a significantly adverse effect on the child and that a return to the primary care of her mother is likely to result in a recurrence of the chronic anxiety and other psychological problems which have abated over the last six months.

The child adapted reasonably well to the regime of seeing her mother at G Centre because, as earlier noted, it fitted her model of parental interaction. She was able to relate well to her mother and uncle and to enjoy her time with them; it was the mother who found it difficult to focus on having a good time and on affectionate interaction, and who kept reverting to discussions about the child’s safety and living arrangements.

It is trite to say that supervised time at a centre like G Centre is not the optimal arrangement between the mother and the child. Nevertheless, it provides an opportunity for their relationship to be sustained and developed, and for confidence to be built. While the mother spoke passionately about the importance of her daughter in her life, and the devastating consequences of the child’s removal from her life, it is she who has removed herself from the child’s life by refusing to see her in the supervised environment at G Centre. I am satisfied that has nothing to do with any difficulties she may have experienced in getting to G Centre, or the actual constraints of a supervised environment. The problem lies in her incapacity to tolerate the child living with a man who she (the mother) believes has sexually abused the child. The roots of that intolerance may well lie in her own psychiatric and psychological state but her refusal to see the child in that environment arises from her own needs, and not those of the child.

When Dr. R last saw the mother he observed that there seemed some shift in her view of the situation or at least she seemed to be struggling to see the situation in a different way. She showed some capacity to think about the child’s experience. Whatever insights the mother may have then had, before me she was focussed on her own need for the child and was intent on denying the evidence of the child’s improved psychiatric functioning.

As Ms. W noted, the strongest affirmation the child can have of her mother’s love and the importance of their relationship would be consistent time with her mother. Sadly, that is not something the mother is prepared to give, save on her own terms. She is focused on her own suffering and loss, rather than on the child’s suffering and loss. She cannot tolerate a relationship with the child, knowing she is in the care of the father.

I have no doubt that the father and his wife were telling the truth when describing the child’s response after her mother failed to attend at G Centre in early December 2007. Whatever the mother’s explanations for her non-attendance, that exacerbated the child’s anger and grief. She must not be put in the position of being taken to G Centre, in joyful anticipation of seeing her mother, only to have her hopes dashed. What is important is consistency and predictability of arrangements to spend time with her mother.

Both the father and the ICL proposed that orders provide for the immediate resumption of time at G Centre, and for its suspension were the mother to fail to attend on three successive occasions, without a bona fide excuse. An order in those terms would allow for very intermittent contact without suspension, as long as the mother did not fail to attend three consecutive appointments. My concern about that aspect of the proposal may well be academic, as the mother maintained her adamant refusal to have any further contact at G Centre.

Ms. W noted that the mother’s behaviour in refusing to continue to see the child at G Centre was consistent with her earlier advice to her, over a lengthy period, which was that she would drop out of the child’s life if the child were put in the care of her father. Cross-examined by the mother, Ms. W reiterated that the mother had made it clear to her on many occasions that she would withdraw from the child’s life if the child did not live with her.

In these circumstances, I cannot see that it would be in the child’s best interests to make orders for the mother to spend supervised time at G Centre, and assume that the mother will attend. I have no reason to believe that the mother does not mean exactly what she said in this respect, and what she said is consistent with a finding that she cannot tolerate a relationship with her daughter so long as her daughter is living with a man she believes to be a sexually abusive father. Unless and until the mother deals with that aspect of her personal functioning, it is highly improbable she will change her mind and see her daughter at G Centre. Orders could provide for that potentiality, but in my view it would not be in the child’s best interests to make orders which disregard the mother’s stated position. It would also be disrespectful of the mother’s autonomy, but that is a secondary consideration.

As the mother’s evidence is that she does not believe she needs any psychiatric or psychological treatment, or the psychotherapy recommended by her treating psychiatrist, Dr. G (a need supported by other expert witnesses) it is unlikely that her world view will change in these vital respects. In those circumstances the court has to consider the potential effect on the child of having either unsupervised contact with her mother, or no contact with her mother.

Ms. W’s evidence was that she would be deeply concerned about any unsupervised contact between the child and her mother. In her opinion, an independent and professional supervisor was essential to ensure the child’s emotional safety. She noted that on 29 August, 2007 the mother told her that she could not cope with sending the child back to her father. She said that if the mother still believes the child to be at risk, there is a probability the mother will not return her to her father, if she spends unsupervised time with the child.

Giving evidence, Ms. W referred to the need for supervision as a response to three perceived risks. The first was the risk of emotional abuse as a result of the mother’s imposition on the child of her own psychological world. The second was the potential for the child not to be returned to her father at the end of a period of time with her mother. The third was the risk, however minor, of the mother physically harming the child.

Dr. R adverted to the same three risks, being the risk of physical harm, psychological harm or absconding. His opinion was that supervision was essential and it would make sense for a “map” to be given to the mother. The first step on the map must be to make supervised access (to use his words) work, and then to move on. The mother must demonstrate a capacity to relate well and safely with the child, when supervised. Dr. R saw a psychological risk to the child from the way the mother spoke and interacted with her. He tried to explain to the mother that concerns about her being reliable in returning the child at the end of a period of time, and working within unsupervised arrangements, arose because “people probably don’t trust you”. He did not refer to a physical risk.

Although the mother saw Dr. G as supporting the immediate introduction of unsupervised contact, that is not the sense of his report, he saying (under Summary and Opinion) that he thought she should continue to have contact with her daughter and that “over time this could progress to a more usual unsupervised relationship”. He saw psychotherapy as assisting her to see herself more objectively and, over time, to become more psychologically robust, and he was prepared to provide that ongoing psychotherapy.

Dr. R’s evidence was that the mother was not in a “psychological spot” to undertake any process of mediation or negotiation around the child’s needs. The mother needs psychotherapeutic treatment first, whether from a psychiatrist or from a non-medical specialist in psycho-therapy. Dr. A agreed with that assessment, as did Ms. W.

The orders proposed by the father and the ICL provided for the mother to continue to consult Dr. G for the purpose of psychotherapeutic counselling, as a condition of an order providing for the mother to spend supervised time with the child. Save as such a condition, the court cannot compel the mother to seek treatment. A number of the expert witnesses spoke of the limitations of imposed psychiatric treatment and Dr. A spoke of the limits and benefits of psychotherapy, which must necessarily relate to the mother’s diagnosis. He said that such therapy or counselling would not change her personality structure, but could assist her understanding, and thus assist her relationship with the child and acceptance of the role played in the child’s life by the father.

This imposition of the mother’s psychological world on the child was referred to, albeit in a different way, by Dr. G in his Summary and Opinion. Referring to the potential benefits of psychotherapy, he said that it may allow the mother to see herself more objectively, to tolerate her daughter having different feelings or attitudes to herself and to be able to tolerate a degree of conflict with her daughter.

It is likely that the need for supervision will be even greater as the child settles further with her father. Dr. G’s opinion was that it is likely that with less contact with the mother, and ongoing psychotherapy with Dr. R, the child may be more psychologically free and able to express thoughts and feelings that are undesirable to her mother. He suspected such feelings in the child would be very difficult for her mother to tolerate. Were the child to move to unsupervised contact with her mother now, and express those feelings, the consequences could be very detrimental to the child.

I am concerned that the mother might feel it necessary, and her maternal duty, to keep the child were she to have unsupervised time with her. She frankly admitted she would breach an order if she believed it to be necessary to ensure the child’s safety, and I doubt she would have the capacity to return the child to the home of a man she believes to be a paedophile.

The court does not have to speculate on the effect on the child of not seeing her mother, at least in the short term, as it has evidence of her response to supervised time with her mother, and her response since that ceased. The child is stressed and distressed about the loss of her relationship with her mother. With Dr. R she avoided talking about her mother or the experience of being separated from her; this avoidance was quite pronounced and persisted even when he pushed the topic. He gained the sense that the experience was too emotionally painful for the child and so was avoided and that the child avoided thinking about the choice between her mother and father. It was in this context that Dr. R said that he told the child it was not for her to decide but for the adults, and he described her clear relief.

Dr. R was unsurprised when told that the child had called for her mother when she was ill. He said the child has a longing for her mother, and misses her greatly, but “missing you is different to wanting to go back to live with you”.

Dr. R did not attempt to minimise the strong avoidance and suppression of feelings about the separation from her mother demonstrated by the child. Cross-examined by the mother, he agreed that the child does have feelings about which she avoids talking. He spoke of the emotional cost to any child who has only one parent. Asked about the likely effect on the child were she to have no contact with her mother, he said it was likely to leave feelings of anger and hurt towards the mother. Although the child is settled in a good household there is an emotional cost for all children who have one parent. He said that he could not predict if the effect on the child would go beyond that and lead to major health problems.

Given the stark choice between unsupervised contact or no contact, Ms. W made it clear that the child’s need for emotional and physical safety must come first. However damaging the ramifications of no contact, that would be preferable to unsupervised contact.

(e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

I am not satisfied that questions of difficulty and expense have affected or would affect in the future the mother’s time with the child at G Centre. Before Bennett J., the mother advised that she would cease financially supporting the child if she did not live with her and her evidence was of a substantially diminished practice since ceasing to see the child. She pays no child support. She has received financial help from her family in the past and is a woman with professional qualifications. I do not doubt that she could find the funds to pay for professional supervision, whether that was a starting point or the second stepping stone (after further time at G Centre) to an unsupervised regime. The factor which substantially affects the child’s right to maintain personal relations and direct contact with her mother on a regular basis is her mother’s refusal to see her, save on her terms.

(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

No submissions were specifically referable to this sub-paragraph, save the mother’s submission that a little girl should live with her mother. The court must focus on the specific facts of this case in assessing where the child’s best interest lie, rather than generalisations..
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

The child has been embroiled in litigation for much of her life. She saw her father intermittently and then at G Centre for a long time. For a period, she saw her mother at G Centre. The model of parental interaction with which she is familiar is a testament to the effects of the continuing litigation. On several occasions, the mother has consented to orders which would result in the child spending unsupervised time with the father, only to renege and fail to comply. Before me, she frankly said that she would not comply with an order which she believed would expose her daughter to risk, and the court could have no confidence that she would do other than she said.

A parent in the mother’s position is not cut out from making a subsequent application to spend time or communicate with a child if he or she moves to an acceptance of the need to put the child’s best interests before his or her own. Were orders to be made now providing for the mother to have no contact with the child, she would need to adduce evidence of new facts or circumstances before bringing another application. Having regard to findings I have made, that evidence could go to a change of heart in the mother. For example, were the mother to obtain the psychotherapeutic counselling recommended, come to an understanding of her over valued notions of abuse and the importance to the child of having a genuine relationship with both parents, and accept that her time with the child would initially require some form of professional supervision, she could seek orders to spend time with her. While it would be a matter for the judicial officer before whom an application was listed, it is hard to see what other circumstances would justify the reopening of the case by the mother.

Orders could themselves provide an opportunity for the mother to resume time with her daughter were she to change her mind and agree to see the child at G Centre or another contact centre, as a first step on the path of which Dr. R spoke. Orders could provide for the father to determine the nature and extent of that time, and of any telephone communication. I am confident he would take appropriate advice and would encourage the child to see her mother, in a safe environment. If the mother than undertook recommended therapeutic treatment, and maintained consistent and appropriate supervised time with the child over a period, he could agree to the child spending time with her mother with a commercial, professional supervisor. In time, that could move to unsupervised time.

(m)any other fact or circumstances that the court thinks is relevant;

The father and ICL proposed that if the child lived with the father, the mother and the child could communicate by way of letters, cards and gifts, to be forwarded to the father’s residence. The mother was sceptical that such items would be handed to the child but I do not share that scepticism. The father would certainly need to be in a position to scrutinize such items and to make a decision as to whether they should be handed on. I am satisfied such an order would be in the child’s best interests, as would be an order providing for the child to be encouraged to forward letters, cards and gifts to the mother on appropriate occasions. Such communication may seem tenuous but if the mother and the child were having no direct contact, it could provide the foundation for the re-establishment of a face to face relationship in the future.

CONCLUSION

I have no hesitation in finding that the child’s best interests demand that she remain living with her father. I find that the presumption of equal shared parental responsibility is rebutted and that the child’s best interests can only be met by her father having sole parental responsibility for her. The mother should be kept informed of any significant illness or injury, and be provided with copies of school reports and school photos. However, the father must be free to make decisions about major long term issues such as the child’s education, health and religion.

There is no doubt that the child’s best interests would be met by being able to spend time with her mother, and to maintain and develop that relationship. However, I cannot find it to be in her best interests to have unsupervised time. Faced with the mother’s intransigent refusal to renew contact with the child at G Centre or accept a professional, commercial supervisor proposed by the independent children’s lawyer, I have no alternative but to find that the child should not spend time with her mother or communicate directly with her mother, by telephone or by attending at her school or at extra curricular activities to speak with her. Orders will provide for the mother to send the child letters, cards and gifts and for the child to be encouraged to reciprocate.

This is a very sad outcome for the child. She deserves a relationship with both parents. Living with her father she has that opportunity, if the mother will play a part. I have confidence in the father’s expressed support of the child’s relationship with her mother and accept that he meant it when he said that “the minute” the professionals say that the child is ready to move on (that was said in the context of moving from supervised to unsupervised time), that would be okay. In those circumstances, orders will provide for the father to determine that it would be appropriate for the child to commence spending time with her mother. If the mother changes her mind, and is prepared to see the child at G Centre, or another supervised facility, the father will have the capacity to facilitate that arrangement, but it will be on his terms, and those of G Centre, rather than on the mother’s terms. Similarly, if the mother obtains further psychiatric assistance and, after a period of supervised contact at a contact service, seeks to spend time with the child outside such a service but with a commercial, professional supervisor, the father would be in a position to facilitate that.

That order will provide an alternative to an application for specific orders, if the mother changer her mind. It will not preclude her making an application to the Court but offers an alternative set of stepping stone, as described by Dr. R.

The father was content to undertake another parenting program at G Centre and, in those circumstances, I will make provision for that in the orders. I make that order on the basis that participation in such a course can enhance parental skills, not on the basis of a finding that his skills are deficient.

I note that the minute of orders proposed by the ICL and the father refers to the child as … Licha. The orders made by Guest J. on 14 February, 2007 required each of the parents to do all things necessary to cause the child’s name to be registered as … Wunscher-Licha and each were restrained from causing or permitting the child to be referred to, known as, or enrolled at school as anything other than … Wunscher-Licha. I was not pointed to any subsequent order discharging those provisions. Accordingly, they bind the parties. In my judgment, it is important that the child continue to be known as … Wunscher-Licha as that provides a tangible link with her mother, a link which may assume more importance if her mother is not to play an active role in her life in the foreseeable future.

The father sought an order which would enjoin both parents from removing the child from the Commonwealth of Australia. I make it clear that there is no evidence before me that there is a risk that the mother would do this, save for the general evidence relating to the risk of her not returning the child to the father’s care, were she to have unsupervised contact with her. I am satisfied such an order can provide reassurance to both parents, as it will bind the father as much as the mother. In those circumstances, I am satisfied an order is appropriate.

Orders will provide that the mother will spend time with the child and communicate with her only as set out in the orders. To give force and effect to that, I am satisfied that the child’s best interests will be served by an order which makes it clear that were the mother to remove the child from the father’s possession, or the possession of another person with whom he has entrusted the child, the mother could be arrested without warrant. Again, I make it clear that there is no evidence that she will do that, save inferences arising from her own evidence that she would breach orders if she believes the child’s welfare demands it. It is important that the orders are clear on their face, not only to the parties, but to others who may be involved in the child’s care.

I certify that the preceding
208 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the day of 2008.

…………………………………………
Associate.

Key Legal Topics

Areas of Law

Family Law
Civil Procedure

Legal Concepts

Injunction
Jurisdiction
Procedural Fairness
Remedies
Appeal
Costs

Actions

Download as PDF Download as Word Document

Citations

Licha and Wunscher [2008] FamCA 147

Most Recent Citation

Wunscher & Licha [2008] FamCAFC 155

Cases Citing This Decision

2

SWANSON & PATON [2015] FCCA 1541

Wunscher & Licha [2008] FamCAFC 155

Cases Cited

1

Statutory Material Cited

1

M v M [1988] HCA 68

[2008] FamCA 147

11 March 2008

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Injunction

Jurisdiction

Procedural Fairness

Remedies

Appeal

Costs