Licha and Wunscher (No. 4)

[2007] FamCA 1309

FAMILY COURT OF AUSTRALIA

LICHA & WUNSCHER (NO. 4) [2007] FamCA 1309

FAMILY LAW – Children – Further consideration of where the child should live – Mental health concerns in regard to the mother – Consideration of expert witnesses’ evidence – Child to remain living with the father until further order – Mother to have supervised contact

Family Law Act 1975 (Cth)

Applicant: Mr Licha

Respondent: Ms Wunscher

Independent Children’s Lawyer:

File Number: MLF 6928 of 2003

Date Delivered: 13 September 2007

Place delivered: Melbourne

Judgment of: Carter J

Hearing date: 13 September 2007

Representation

Counsel for the Applicant: Mr C C Ham

Solicitor for the Applicant: Pearsons Schetzer & Associates

Counsel for the Respondent: Ms O Nikou SC

Solicitor for the Respondent: Michael Maplestone

Independent Children’s Lawyer Counsel: Mr P A Marchetti

Independent Children’s Lawyer Solicitor: Septimus Jones & Lee

Orders

1. Until further order the child … born … August 1999 spend time with the father on a continuing basis.

2. Until further order the mother be and is hereby restrained by herself, her servants or agents from approaching within 50 metres of the child’s school L School or from contacting or communicating with the child other than in accordance with this order.

3. Until further order the mother be entitled to spend time with the child on a fully supervised basis at G at times to be arranged in consultation with G and the Independent Children’s Lawyer.

4. That the evidence of the three witnesses:  Ms S, Dr B and Ms W be transcribed.

5. That my Reasons for Judgment be transcribed and after editing, a copy be placed on the Court file and copies made available to the father, the mother and Independent Children’s Lawyer.

6. That all questions of costs, including the costs of the Independent Children’s Lawyer be reserved.

7. That any documents ordered to be produced in par (4) of the orders made by Watt J on 24 August 2007 which have not been produced be forthwith produced to the Court and the question of whether the mother should be required to provide those documents to the Independent Children’s Lawyer or the father be reserved until further order.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Carter delivered this day will for all publication and reporting purposes be referred to as Licha & Wunscher.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 6928 of 2003

Mr Licha

Applicant

and

Ms Wunscher

Respondent

REASONS FOR JUDGMENT

1. I do not propose to detail the background to this matter.  It was amply set out, as was the history of the proceedings, in the Reasons for Judgment given by her Honour, Bennett J on 4 September 2007.  I commence for the purposes of my decision today towards the latter part of the events when her Honour first became involved with the matter in August of this year.

2. The first thing I need to say to everyone and to remind myself about is that these are parenting proceedings about a child, who was born in August 1999.  Consequently I must apply the provisions of Pt VII of the Family Law Act.  Pursuant to s 65D(1), the Court is enabled to make whatever parenting order it thinks proper, subject of course to the presumption of equal shared parental responsibility in s 61DA, and parenting plans which are provided for in s 65DAB.

3. By virtue of s 65D(2), the Court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order, again subject to s 61DA and s 65DAB.  Given that these are interim parenting proceedings, the Court must follow what was called the “legislative pathway” which the Full Court set out in Goode (2006) FLC ¶ 93-286.

4. The process is of necessity an abridged process, and the scope of the inquiry is “significantly curtailed” (see par 18 of Cowling (1998) FLC ¶ 92-801). The Full Court held in par 68 of Goode that this was still the case, and they went on to say:

   “Where the Court cannot make findings of fact, it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.  The Court also looks to the less-contentious matters such as the agreed facts and issues not in dispute, and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.”

5. In par 72 of Goode the Full Court wrote:

   “In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable.”

6. They went on to explain in the same paragraph:

   “This means where there is a status quo or well-settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.”

7. In par 73, their Honours wrote:

   “That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).”

8. In the present case, unlike many interim hearings, I have had the opportunity to hear some evidence being tested, and significantly that has been expert evidence.  I refer here to the evidence of Ms W, a family consultant; Dr R, a psychiatrist; and the school counsellor. 

9. Ms W had prepared five Family Reports for this family.  The first report was in the year 2004, and the last was in March 2006.  In that last report, Ms W expressed the view that the child required urgent psychiatric assessment and treatment.

10. Dr R prepared a report which was annexed to his affidavit sworn in December 2006, and also provided a further affidavit sworn 15 June 2007.  The first affidavit was before the Court when Guest J made orders by consent on 14 February 2007.  Pursuant to those orders, the child was to continue to attend upon Dr R “for therapeutic and reportable purposes”.

11. Dr R’s second affidavit annexes “a report” dated 28 March 2007 in which, amongst other things, he explained that the mother had advised him that she was going to terminate the child’s treatment.

12. Ms W and Dr R were not called for cross‑examination when the proceedings were before Guest J because the parties resolved their difficulties prior to that, and entered into consent orders. 

13. When the proceedings came before Bennett J on 29 August 2007, Ms W was asked to and did come to Court.  Her Honour gave Ms W a brief explanation of the most recent events.  Ms W addressed the Court briefly.  Subsequent to that she gave an oral report to the Court on 30 August 2007.  The proceedings were adjourned to 4 September 2007 to enable Dr R and Ms W to be cross-examined as well as the school counsellor.  That did not take place, and the matter was further adjourned until today.

14. A number of matters were raised by Ms W when she gave her report to the Court.  I refer in that regard to pars 60 and 61 of Morgan J’s Reasons for Judgment which make reference to the relevant transcript.  I also pay particular reference to par 62 of her Honour's judgment where she records that, when one reads the transcript, the words are accurate but that in her view, what she described as the chilling impact of the mother's verbal delivery was not conveyed, and neither was the extent to which she appeared to be completely self-absorbed.

15. Much the same sentiments, if not identical ones, were conveyed to Ms W when she spoke to the mother for the purposes of the preparation of her own report.  I am asked now to accept that what the mother said should be looked at in a light which is sympathetic to her, and I do, but I cannot ignore it.  Ms W was sufficiently concerned to make a report to the Department of Human Services, as she is mandated to do in circumstances where she finds there is risk.  The risk that she was concerned about she also described as being not just - and I say “not just” not lightly - not just for emotional concerns, but also as to the possibility of there being physical risks.

16. She explained to Ms Nikou that she felt that with 30 years of experience, and her qualifications, she was in a position to assess whether or not there was a risk sufficient for her to report about, and that is what she did.  Having further opportunity to think about the matter, Ms W also formed the view that if the child were to be returned to her mother's care for what was then envisaged to be perhaps some weeks, she would again feel compelled to make a further notification to the Department of Human Services.

17. In those circumstances, on a temporary basis, the child came to live with her father.  Today I have to decide whether she should continue with her father on a temporary basis or whether she should return to her mother's home or whether some other arrangement should be made.

18. The path that the Full Court in Goode’s case says should be followed is set out in par 82.

19. The competing proposals of the parties are as follows.  The Independent Children's Lawyer and the father propose that the arrangement should continue whereby the child lives with her father, continues to attend her school, and has the opportunity to spend time with her mother basically as often as it can be arranged at G.  Usually such arrangements can only be accommodated on a fortnightly basis, but in the circumstances of this case, a little more than that can be organised.

20. There is the possibility of the child spending time with her mother on Sunday, 16 September for two hours; on Friday, 21 September for two hours; and on Saturday, 29 September for two hours.  There is also the possibility of her spending time with her mother for two hours on Friday, 5 October; for two hours on Saturday, 13 October; for two hours on Friday, 19 October; and for two hours on Saturday, 27 October.

21. I pause there to say that there is a difficulty so far as the father is concerned in that he is to be married on 5 October at 3.30 pm.  I have been told from the Bar table that the child is to be a flower girl, and he had proposed that he would be away, together with his wife, as she will be by then, and the child for two weeks, but would be back in time for the arrangements to take place on 19 October as I understand it.  I was told, however, by Mr Ham, who appears on his behalf, that he will not go away unless it is my view that this should happen.

22. As I understand it, he would also attempt to make arrangements for another time to be spent with the child and her mother prior to or shortly after the date of the wedding.  There was also the possibility in November of four other occasions which would occur on a weekly basis generally, but not completely.  The matter is due to come back to Court for a directions hearing on 16 November 2007.

23. Other orders which are relevant to note now are that the parents are to attend upon Dr A for the purposes of an assessment as to their mental health and other matters.  The mother was to attend on 7 September, and the father was to attend on 21 September.  That was the time envisaged at least when the matter was before Bennett J, but there was provision made for other arrangements to be made should that become necessary.  It was anticipated that the report would be available by Friday, 28 September, and when the reports were available, copies were to be sent by the Independent Children’s Lawyer - to the Court, to be placed on the Court file in anticipation of affidavit evidence to be filed in due course.

24. Filing of further affidavit material has been directed.  Arrangements have also been made and it has been ordered for the father to be responsible on an interim basis to ensure that the child attends Dr R which attendance is in accordance with the orders made 14 February 2007.

25. The mother proposes that the orders made 14 February 2007 should be effectively reinstated.  I am told by counsel that the mother will comply with those orders.  Those orders of course would require the child to be returned to her mother’s home.

26. If I do not agree with that submission, then the next preferred option is that there should be a shared arrangement.  I am told that in any event, there should not be an order for supervised contact (in the old language) and that G should not be utilised, and assistance has been suggested to be available from members of the mother’s family with whom she lives, and with whom the child has lived for some considerable time (at least).

27. The parents were ordered to provide an affidavit for today which set out areas of risk upon which they relied.  They did not do so.  I have to say I found that most unsatisfactory.  As far as the mother is concerned, I am told however that the risk envisaged was a risk of emotional abuse or suffering if the child is with the father for longer than she, the child, is prepared to be.  “Emotional abuse” on further inquiry was defined to be circumstances where it was likely to result in a negative impact upon her psychological development.  As to how I am to determine how long the child is prepared to be with the father, I am quite unable to say.

28. As far as the father is concerned, the risk was said to be emotional, psychological and physical risk, the latter being said to be the mother’s anger or propensity to become angry which could perhaps impact upon the child.  I do not know that that was pursued particularly much and I do not take a great deal of notice of it.  Largely the thrust of the father’s case or the issues that he raises are that the mother has not fostered the child’s relationship with him.  She has not complied with Court orders.  She continues to raise with the child or I would at least infer that the submission would be that the child has been abused in the past, and that there is a possibility of further abuse in the future.  Other matters which were highlighted were the fact that the child has settled since moving to the father’s care, and has improved.

29. When Ms Nikou first addressed the Court this morning in relation to my inquiry about the affidavit to which I have just referred, she told me that she was instructed to raise that she had just been informed that at G on an occasion last Friday, 7 September, when the child was spending time with her mother, the child told her mother that she was sleeping in the same room and/or the same bed as the father.  A person called N, who I understand was a worker at the contact centre, was said to have been present.

30. I have received today an affidavit from a Ms E sworn 12 September 2007 and filed yesterday.  Ms E is the Co-ordinator for the children's contact service conducted by G.  She was asked to provide a summary of the contact visit that took place last Friday and she has done so.  Mention is made of the behaviour of the child and her mother.

31. It is convenient to note here that when certain matters had been clarified - and that is to say whether members of the mother's family should stay or not – the child ran to her father and hugged and kissed him, then ran to the worker and hugged and kissed him.  She was smiling.  She appeared excited.  She spoke quickly, and she spoke in a high voice.  She then went through to the mother who held the child tightly and began to cry.  The mother held the child for an extended period, and the child then began to cry.

32. The affidavit or report annexed to the affidavit records that the mother asked the child questions about school and her sleeping arrangements at the father's house, the food that she ate, who she played with and what she did on weekends, amongst other things, and evidently the child replied to her mother.  At the conclusion of the period or getting towards the end of it, the mother - and understandably - had tears in her eyes.  However, the child did not react to that in any apparent way, and she continued to joke with her uncle.  The mother is recorded as having said, “[F]” (who is the uncle) “is looking after me now because you’re not here to look after me,” and the child did not respond to that.  That was the end of the session.

33. That does not mean of course that the child did or did not talk about the sleeping arrangements.  Certainly it is fair to say that she was asked about them.  Ms Nikou told me that she was instructed not to take this matter further except on the basis that it indicated perhaps some inappropriate behaviour in the sense of observing barriers or simple precautions.  She made it clear there was no allegation of sexual abuse in that context.

34. That does not appear always of course to be reflected in the mother’s material.  When I asked Ms Nikou why she wanted to pursue cross‑examination of Dr R about the sleeping arrangements, she told me words to the effect that the Court had not heard firstly that the child was having or had had nightmares or that she had been anxious.  It was said that the father’s case, at least implicitly, was that everything was going swimmingly, and certainly there is nothing in his affidavit about concerns that the child may have had upon the transfer to his home.

35. I pause here to say that the affidavit in question is one sworn and filed 3 September 2007.  It was prepared by the father himself.  Whilst he has had extensive experience in the legal system, it does not extend to having any legal qualifications.

36. However, the situation was that the child’s sleeping arrangements or difficulties and anxieties were raised, albeit briefly and in passing, with Dr R.  Dr R recalled that the father had made some reference that the child had become anxious and had been concerned at night and come in at night.  His memory didn't really stretch much past there.

37. Relevantly, however, he had told Ms Nikou - and I think it was her first question which was about the sleeping arrangements - that the child had told him when he saw her on Monday this week that she had had nightmares, and that she was sleeping in the same room as her father and his partner on a mattress on the floor because of these nightmares.

38. In a similar vein, the father told Ms W in passing that when he woke the first morning after the child had come to his care, he found her in his bed curled up around his partner.  As Ms W said, the child had slept in her mother’s bed every night and derived comfort from that.  She was used to it.  She had been reported to have nightmares basically ever since Ms W became involved in this case some years ago.

39. Ms W did not find anything untoward about what had happened, but cautioned the father.  The evidence of course has not been tested at this stage, and Ms Nikou has indicated that it will be in the fullness of time.  All I can record at this stage is that on the arrangements as described by the child to Dr R and the father to Ms W, no concern has been expressed by those people.

40. As I said, Ms Nikou was not instructed to pursue the matter on the basis of any allegations of sexual impropriety, but the wife raises such matters in her material, firstly her affidavit of 22 August which she prepared on her own behalf.  In par 4 of the third page of the body of the affidavit itself under the heading “My Concerns for [the child]”, the mother recorded:

    “She told me -

    (that is, the child told her mother)

    that she feels that she is unable to recover and overcome her fear that spending more time with her father will eventually lead to re-abuse.”

1. In the same affidavit in par 3, the child’s alleged troubling behaviour was detailed which included that she was soiling herself at school.  It also included by way of a statement just prior to that, that when full day Sunday visits commenced, she, the mother, observed, as did others that the child became increasingly distressed and psychologically disturbed.  That evidence does not emerge certainly from the school counsellor.

2. The child’s soiling, which is a very worrying matter, is repeated in par 26(f) and (h) of the mother's second affidavit which was prepared on her behalf by her lawyer.  In par 26(f) it was said that:

   “[The child] was showing numerous nervous symptoms at school, including not concentrating, crying, nail biting, incontinence or soiling and appetite loss.”

3. In sub-par (h), third sentence:

   “She has soiled her underwear at school and at after care.  Her schoolteachers have informed me that they have noticed disturbing and disruptive behaviour, and I am constantly having to reassure her.”

4. Again that was not the evidence that emerged from the school counsellor who indeed had no understanding whatsoever that the child had in fact soiled herself at school at any time subsequent to the orders that were made in February this year.  There may be of course an explanation for this inconsistency which will be no doubt given in the fullness of time.

5. It is obvious that the mother's proposals would involve faith being placed in the mother that she would abide the orders of the Court.  The question arises as to can the Court do that.  I observe one of the notations to those orders of February 2007:

   “These 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.”

6. The mother was represented by counsel at the time, and had very competent counsel and who was instructed by the same solicitor who now appears again for her.

7. On 19 February 2007 the school counsellor has recorded that the child informed her that her mother told her that her father pretended to be nice.  She also told the counsellor that on one occasion, her father put his finger up her bum.  He did not even wash his hands.  That allegation has been made on a number of occasions in the past.

8. So whatever was in the mother’s mind at the time that the orders were made clearly had either not been conveyed to the child or had not been successfully conveyed to the child.  I speak there about the need to disabuse the child of the fear of being at risk in her father's home.  Again there may be explanations which will emerge in the fullness of time.

9. On 2 March 2007, there was a meeting between the counsellor and the mother in the course of which the mother, amongst other things, said that she believed that her former partner was a paedophile and the child was unsafe with him.  The notes of that meeting are Exhibit “ICL1”.

10. The school counsellor gave evidence that on 16 April 2007, the mother had come to see her, advising that the child was having nightmares and was soiling prior to and after visits to her father.  She would not eat in her father’s home.  The school counsellor suggested ways that the mother could help the child in this, for example to explain to her that she would be safe in her father’s home.  However, the mother told the counsellor she could not do that.  It was best for the child to remain vigilant and to be aware that he might do something which was unsafe to her.

11. Between 16 April 2007 and 30 August 2007, the evidence is that the child was coming to school quite late.  She was tired, otherwise she was doing fine at school.  She followed directions, and she was an enthusiastic member of her class.  The counsellor has seen the child since she moved to live in her father’s house.  She reported in her evidence that she was arriving on time.  Indeed she came early yesterday.  Her attendance at school has been good.  She appeared a lot more settled.  She was playing with more children.  She was more engaged in class, more alert and less tired.

12. She met with the child yesterday, described her as being happy, and having informed her that she's having a “nice time at dad’s”.  She explained to the counsellor that her mother was sick and needed a break, and that was why she was staying with her father.  The circumstances are such that I cannot be certain about how this information came to the child, if indeed it was conveyed to her.  It may be the child's assumption alone, and one of the reasons that that appears at least a possibility is because of the report from Ms W that the mother has been ill on a number of occasions.  This was a matter discussed I think with the child, but in any event, that is a matter for future discussion no doubt.  All in all, the picture painted by Ms S was that the child was doing well.  There was no suggestion that she felt unsafe in her father’s care.

13. Extracts from Dr R’s report are given in Bennett J’s Reasons for Judgment, and I will not repeat them here.  It is as well however to note his evidence as to how the child appeared when he saw her on Monday, 10 September.  He said that she presented feeling comfortable and safe at her father's house.  She demonstrated immense distress at the loss of contact with her mother and was quite tearful about missing her mother.  She spoke about G in respect of her attendances to see her mother as if it had been for a long time.  By her comments, it was clear to Dr R that the child was extremely attuned to the mother's distress, and indeed he subsequently described it as a matter where distress was emanating probably more from the mother than it was from the child.

14. The overriding matter which came out of this discussion on Monday when Dr R discussed with the child a number of possible scenarios as he described it was that she wished to see both her parents.  She was much clearer in her wishes than she had earlier been.  He has described - and I will not repeat here - his view that the child continues to need treatment and ongoing counselling which would be individual sessions.

15. He had not, on the evidence, been able to progress very far in his treatment of the child which had been ordered in February of this year.  When he did see her, which was, from recollection, on three occasions, they had only just really got to the stage of establishing rapport and getting the groundwork organised.  They were introductory sessions as I think he described them.  They were never established properly because he and the mother were not able to reach agreement as to the structure of the sessions.  They had different views as to what the purpose of it was.

16. Again whilst I have not heard from the mother, it appears to me that Dr R’s view for the purpose of the therapy was more accurate than that of the mother.  At the time that he did see her, he still felt clearly that she needed further treatment and assistance.

17. I have spoken about Ms W and her evidence, and there are highlighted extracts of it or summaries of it in Bennett J’s report.  What I want to note here is that I accept Ms W’s evidence in respect to the preamble and postscript to the husband's affidavit which was a matter highlighted in pars 80 and 81 in Bennett J’s Reasons for Judgment.

18. Since the orders were made in February this year, the mother has not complied with her obligations to present the child as she was required to do under the orders.  She did not continue the treatment ordered for the child with Dr R, which it must be recalled was for the child's benefit.  She did not continue the treatment of herself with Mr P which was to be for her benefit.  Circumstances which have prevailed in her household as recorded in the evidence so far, some of which has been tested, a lot of which has not, do not to my mind establish a status quo which is in the child’s best interests to preserve.

19. With that background the relevant sections of the Act need to be looked at, as the Full Court in Goode said.  I will not set out the sections in full, but I am required pursuant to the legislation, when deciding whether to make a particular parenting order in relation to a child, to regard the best interests of the child as the paramount consideration.  In determining what is in a child’s best interests, I am required to look at a number of matters.  I bear in mind the Objects and Principles underlying the Objects.

20. I turn to s 60CC which sets out how the best interests of a child are to be determined.  There are two primary considerations and a number of additional considerations.  The two primary considerations highlight the benefit to a child of having a meaningful relationship with both of his or her parents, provided that it is safe.

21. The additional considerations include the views of the child.  I am urged by Ms Nikou to pay particular attention to this.  The only reliable evidence I could look at, at the moment, is that the child wants to have a relationship with both her parents.  The weight to be attached to it is not a matter which I feel appropriate to be determined at this stage, given the early stage of the proceedings.

22. When I look at relationships, there is no doubt that the child has a close relationship with her mother, and I would be prepared on the evidence to accept that she has a close relationship with other relatives on her mother's side, given the affidavit of her maternal aunt.  As to whether the relationship is a positive relationship in the psychological sense is a matter that will need to be explored in the future.  There is evidence which would suggest that there is some parentification, but there is no doubt whatsoever that the child loves her mother and that her mother loves her.  It is fair to say that her relationship with her father is not as well-established.  On all the evidence including matters which were before Guest J back in February, and the reports of Dr r and Ms W, it is clear that any deficit in the father’s relationship with the child is not of his making.

23. One of the principal concerns in this case is the question of the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent.  That really goes to the heart of this case.  It is not a matter which can be determined, but there are, on the basis of all the evidence, very grave doubts which arise as to the mother's willingness and ability to promote the relationship between the child and her father.

24. Another matter which goes to the heart of this case or the circumstances of this case is the likely effect of any changes in the child's circumstances.  The child has been spending the last little while with her father.  That is an enormous change to her status quo.  She has prior to then lived most of her life with her mother, at least of recent times.  The question of who was the primary carer and so on is a matter of dispute.  It is not a matter I need to or can determine at this stage, but on a chronological basis, she has certainly spent most of the time with her mother of recent times.  Living in her mother's home are other relatives, and she has spent considerable periods of time with them as well.

25. The effect on her of separation from her mother is a matter of concern.  The child, it would appear, regarded the separation from her mother as temporary, and that of course was the case.  The effect upon her when she understands that it might be longer than a matter of a few days or a few weeks is a matter which will have to be looked at and handled very carefully.

26. On the evidence from Dr R, it would cause a major grief reaction to the child if she lost her relationship with her mother.  He, however, described the level of distress that he saw in the child about her mother as to be expected.  The obvious way to reduce that of course would be for the child to have more time with her mother or have her returned to her mother.  The question is whether this is the best thing for the child.

27. Ms W thought that the critical issue for the child was to know that her mother would stay in her life, even if she sees or stays with her father.  Her evidence was also, and it is congruent with Dr R, that she needs therapy and she needs experience of the reality of living with her father and, as I understand it, ideally she needs the experience of her mother permitting her to be with her father.  Ms W’s evidence and recommendation was that the child should continue to see her mother on a supervised basis at G.

28. She pointed out that that the G Centre is familiar with the whole family.  It needs to be said that the father was seeing the child there at one stage, too.  There the situation can be monitored.  It is the case, as Ms Nikou pointed out, that Dr R I think it was, but certainly one of the witnesses, said that a Contact Centre was more suited to protection from physical harm than it was to protection from emotional risk, and I think that is self‑evident.  But nonetheless, the capacity to intervene if people behave inappropriately on an emotional basis, that is by word or action, is also available to the workers at Contact Centres such as this one.

29. Ms W, when she made her recommendation, had heard the evidence and cross‑examination of the school counsellor, and she had also heard Dr R’s cross‑examination.  Her recommendation remained the same notwithstanding that, or perhaps because of it, I am not certain.  She described the situation as one where, on the evidence which she had heard, the child was coping remarkably well and was benefiting from the calmness and peace of the father’s household, and she said she would be very concerned if she were to be returned to her mother’s care.

30. When taxed about this during cross‑examination, that is to say when it was put to her or when she was reminded of the distress experienced by the child and displayed by the child, Ms W acknowledged all of that but, for reasons which she clearly explained at the time, did not move from that position.

31. It was Ms W’s recommendation that the Contact Centre should be utilised for some unstated but, as I understand, not brief period of time before consideration were given to extending the periods of time that the child would spend with her mother, and at a place other than such a centre.  Ms W freely and patently honestly, acknowledged and recommended that the child should see her mother.  She needed predictability in respect of that.  She pointed out in answer to a question about the benefit or otherwise of members of the mother’s extended family attending that the most important people for the child for some weeks in the future were her mother and father, and the critical issue, as I said, was for the child to know that her mother would stay in her life when she sees or stays with her father.

32. Ms W pointed out that from the time that she has been involved with this family, the mother’s position has been the same.  Time to be spent by the child with her father was always to be supervised.  That of course changed in February of this year in the sense of the orders that were made, but it did not last very long at all.  She discerned that there was no element of movement or shift in the mother, and it appeared at the moment there was no change to that stance she had taken.

33. The history of this matter is such that it is very difficult to think that the mother would shift her stance.  As Dr R pointed out, the Court would need convincing evidence that the mother has made a shift in that stance, otherwise the matter would be back in Court again.

34. So the changes or effect upon the child of spending some further period of time with her father, perhaps longer than she had anticipated is a matter of great importance.  But again as Ms W pointed out, whilst the absence from her mother, the availability of limited periods of time spent as compared with day‑to‑day contact as was previously the case, has to be weighed with all the other factors.

35. Closely coupled with the willingness and ability of the parents to facilitate relationships with the other parent is the question of the attitude to the child and responsibilities of parenthood, and the matters which are set out in s 60CC(4) also have relevance to those matters.  What is particularly important in my mind is that we have a little girl here who has been diagnosed as needing assistance.  The Court and her parents took steps to see that she got that assistance.  She did not.  For reasons which will be explored in the fullness of time, the mother stopped the therapeutic treatment which had been ordered.

36. As Mr Ham said, I can be satisfied on all the evidence that she will be getting counselling from Dr R.  As to whether the mother would continue to undermine the father to the child, only time will tell, but the chances of doing it are much less than if she sees the child at G than if she has unsupervised periods of time with her.

37. The circumstances of this case are such that the presumption of equal shared parental responsibility should not apply.  Further, this is an interim hearing.

38. So for those reasons, it will be my order that the child will continue to live with her father until further order.  As far as the arrangements for her to spend time with her mother are concerned, I find that the father and his bride to be should not take the child away for the two weeks mentioned after their wedding.  It is a pity that they cannot have that uninterrupted period of time, but it is more important for the child to see her mother with as much regularity as can be arranged.

39. I think it is entirely appropriate for the child to attend her father's wedding and to play whatever role in it that has been arranged for her.  The timing would not allow her to go to visit her mother immediately afterwards, nor would I think in the circumstances would it be appropriate on that day.  As I indicated earlier, Mr Ham had said that attempts will be made to arrange for an alternate period, and I rely on that to be carried through, and in that regard of course, the Independent Children’s Lawyer will be of assistance.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carter.

Associate:                 

Date:    9 November 2007