MAFTON & SALMET
[2020] FCCA 256
•12 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MAFTON & SALMET | [2020] FCCA 256 |
| Catchwords: FAMILY LAW – Residence contest between the father and maternal aunt – mother deceased – whether or not there are issues of risk in the father’s care due to his beliefs about medicine – mother and father Jehovah’s Witnesses – controversy over medical treatments mother received – aunt’s willingness to facilitate father’s relationship with child – controversy with respect to sexual abuse allegations – importance of maintaining connections with paternal and maternal family – parties live two hours’ drive apart. |
| Legislation: Family Law Act 1975 (Cth), ss.60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 61DA(2), 61DA(4), 64, 68R, 69ZW |
| Cases cited: Firth & Firth (1988) FLC 91-971 |
| Applicant: | MS MAFTON |
| Respondent: | MR SALMET |
| File Number: | MLC 1873 of 2018 |
| Judgment of: | Judge Harland |
| Hearing dates: | 30 October, 31 October, 1 November & 25 November 2019 |
| Date of Last Submission: | 16 December 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 12 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Kildea |
| Solicitors for the Applicant: | Nicholes Family Lawyers |
| Counsel for the Respondent: | Dr Ingleby |
| Solicitors for the Respondent: | Berger Kordos Lawyers |
| Counsel for the Independent Children’s Lawyer: | Ms Goldsworthy |
| Solicitors for the Independent Children’s Lawyer: | Victoria Legal Aid |
ORDERS
That the father have sole parental responsibility for the child, X born in 2015 (“X”) provided that the father notify the maternal aunt, MS MAFTON (“Ms Mafton”) of any proposed decision relating to the long term care and welfare of X.
The father shall inform Ms Mafton of any of the decisions.
That the father forthwith enrol X in kindergarten and cause Ms Mafton’s details to be included on any enrolment form.
That the father is, as soon as practicable, to authorise X’s kindergarten, school and medical treaters to provide Ms Mafton with information with respect to X and to notify Ms Mafton that he has done so together with the names and contact details of the relevant contacts.
That the father and Ms Mafton be at liberty to attend any of X’s kindergarten or school functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.
That the parties be granted liberty to apply with respect to the draft Orders at annexure A of these reasons within 30 days. If the liberty to apply is not exercised by way of further written submissions or with a request for a further court date and if no party seeks to raise any issues with respect to the proposed draft Orders Chambers shall issue final Orders in the same terms as annexure A.
CONSENT ORDERS:
That Ms Mafton be restrained from allowing the maternal grandfather, Mr A, from coming into contact with X.
IT IS NOTED that publication of this judgment under the pseudonym Mafton & Salmet is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 1873 of 2018
| MS MAFTON |
Applicant
And
| MR SALMET |
Respondent
REASONS FOR JUDGMENT
This is a sad and difficult case. X is four years old. She was born in 2015. X’s mother died in 2018. The parties in these proceedings are the mother’s sister, Ms Mafton and X’s father. Both want X to live in their primary care.
The father was born in 1967 and is aged 52. He is not employed. He is not in a relationship.
Ms Mafton was born in 1980 and is aged 39. She owns her own business. She lives with her partner Mr B who is aged 43. Mr B works as a tradesman and also assists Ms Mafton in her business.
The mother commenced these proceedings on 21 February 2018. The mother and X moved in to Ms Mafton’s home in November 2017. Ms Mafton has been X’s primary carer since then.
Chronology
It is helpful to set out a chronology in this matter as there are several factual issues in dispute. The case is more complicated because of the mother’s death.
| 2001 | Mother and father meet |
| 2008 | Mother and father married |
| 2010 | Mother diagnosed with Angiosarcoma in her left arm |
| 2011 | Mother receives radiotherapy |
| 2015 | X born |
| 2016 | Scans show mother’s cancer has worsened |
| June/July 2017 | Mother broke her arm. Mother admitted to hospital and advised to have surgery. |
| 28 September 2017 | Report to the Department alleging the father smothered the child with a pillow |
| 2017 | Mother and father travel to Country C for treatment at a clinic using conventional and natural therapies |
| 2017 | Mother and father return from Country C |
| 27 November 2017 | Mother and X go to stay with maternal grandmother |
| December 2017 | Mother admitted to hospital under an alias |
| December 2017 | X is in maternal aunt’s primary care |
| 4 December 2017 | Mother and X move in to aunt’s home in City D |
| 20 December 2017 | Ms Mafton makes application for an intervention order on the mother’s behalf |
| 21 December 2017 | Ex parte orders made with the mother and X as protected persons |
| 22 February 2018 | Mother commences proceedings. |
| 4 April 2018 | Ms Mafton joined to the proceedings. |
| 11 May 2018 | Interim consent orders: - Father to have time each Monday from 10am – 1pm professionally supervised - Father to have time each Saturday from 10am – 1pm supervised by Ms E - Upon the mother providing consent, the child is to be immunised (to be arranged by Ms Mafton) |
| 7 August 2018 | Interim orders (not by consent): - Father to have time for 2 weeks from 10am – 1pm Wednesdays and Saturdays - Father to have time for 6 weeks from 10am – 4pm Wednesdays and Saturdays - Father to have time thereafter: o In week 1 § From 10am – 4pm on Wednesday § From 10am Saturday – 10am Sunday; o In week 2 § From 10am – 4pm on Wednesday § From 10am Sunday – 10am Monday |
| 2018 | Mother dies |
| December 2018 | Ms Mafton designated as the applicant after the mother’s death |
| 4 December 2018 | Report by Ms Mafton to the Department regarding potential sexual abuse |
| 13 December 2018 | Interim consent orders: - Section 69ZW ordered - ICL to liaise with Dr F to obtain referral for X to have paediatric assessment - Orders on 7 August 2018 remain in force - Father to have time extended on 26 December 2018 to be from 10am on 26 December 2018 to 5pm 27 December 2018 |
| 29 December 2018 | Ms Mafton contacts the Department regarding concerns about X’s behaviour with her toys |
| 30 December 2018 | Ms Mafton tells the Department she took X to hospital regarding vaginal discharge. Hospital had no concerns |
| February 2019 | Ms Mafton takes X to hospital |
| March 2019 | Ms Mafton takes X to hospital |
| April 2019 | Section 69ZW report released |
| 5 April 2019 | Interim IVO order made in father’s absence protecting Ms Mafton and X and suspending father’s time pursuant to s.68R Family Law Act 1975. |
| 15 May 2019 | Interim consent orders - Father to have time each Tuesday from 10am – 3pm commencing 21 May 2019 - Father to have time each alternate weekend from 10am Friday to 5pm Sunday commencing Friday 17 May 2019 - Father and aunt restrained by injunction from: o Denigrating each other/other members of the household o Discussing proceedings directly/in the presence of X o Bring/allowing X to be brought in contact with Mr A (maternal grandfather) o Recording each other or X visually or by audio at changeover |
Issues in dispute
There are several issues in dispute which I must determine.
One of the major issues of controversy between the parties is the nature of the mother’s illness and the appropriateness of treatments she received, as well as the mother’s involvement in decisions with respect to those treatments.
The Jehovah’s Witness religion features significantly in this case. The medical issues need to be seen in this context.
The father’s Counsel identified several factual issues in dispute between the parties which are relevant to the determination of the issues in dispute. Those issues include:
a)the care arrangements for X prior to 27 November 2017;
b)the mother and X leaving the family home in November 2017;
c)the father’s parenting capacity;
d)the progression of treatments received, the mother’s involvement in decision-making for the treatments and whether or not the father prevented her from receiving treatments she wanted;
e)Ms Mafton’s conduct with respect to the sexual abuse allegations and the parties ceasing the father’s time;
f)parental responsibility and whether or not this should be shared;
g)who X should live with;
h)what spend time arrangements should be put in place with the other party;
i)if X is to be placed in the father’s care how that should be managed; and
j)whether or not the father’s religious beliefs with respect to medical issues pose a risk to X.
The applicant aunt’s case
Ms Mafton’s case is that the father was domineering and controlling during the marriage such that the mother did not have financial independence and was not able to make independent decisions about her medical treatment. The mother left the home she shared with the father in Town G in November 2017 and initially stayed with her mother before moving to City D and living with her sister Ms Mafton.
Ms Mafton relied on the following witnesses:
a)Mr B;
b)Ms J;
c)Mr K.
Mr B is Ms Mafton’s partner. He says he has developed a close relationship with X and she calls him her uncle or uncle Mr B. He and Ms Mafton completed the Making Step Families Work program on 22 July 2019.
Ms J and Mr K provided assistance to the mother while she was in hospital in City D. Ms J is an oncology social worker and Mr K is a supportive care worker in the palliative care team.
Ms Mafton also relied on the affidavit of the mother filed on 22 February 2018.
The father’s case
The father’s case is that he and the mother never separated. He does not know why the mother and X moved. He never saw the mother again. The father says that the Jehovah’s Witness faith is a patriarchal religion and he was the head of the family and ultimate decision-maker. However, he said that he always consulted with the mother and respected her wishes particularly with respect to her health and says he was supporting her wishes throughout the illness. He wants X to live with him, reuniting his family. He wants Ms Mafton to return to the role of an aunt and to see X for a few hours a month.
The paternal grandfather gave evidence during cross-examination in support of the father.
The Independent Children’s Lawyer’s case
In her submissions the Independent Children’s Lawyer (“ICL”) supports X transitioning into the father’s care and the father having sole parental responsibility for her. She supports substantial and significant time for Ms Mafton.
The mother’s affidavit
Ms Mafton relied on the mother’s affidavit. As the mother’s evidence could not be tested, less weight can be placed on it.
The mother swore an affidavit in support of her initiating application on 21 February 2018, filed the next day. In that affidavit she said she was X’s primary carer until she fractured her arm in July 2017. From that time she could not care for X’s physical needs and the father took over. They argued when she tried to give him guidance. She is concerned about the father’s capacity to adequately care for X.
She describes the father as controlling and domineering during their relationship, restricting her access to finances, controlling who she could socialise with and restricting her access to a car.
She says after X was born the dynamic of their relationship changed as she would correct the father when he cared for X inappropriately. She says the father did not like the fact that she had become more assertive.
In her affidavit she says that the father was controlling and dominating with her with respect to her health treatment and prevented her from getting effective health treatment.
The mother does not discuss the Jehovah’s Witness faith. Given its importance in this case it is a significant omission.
The father denies the allegations that he discouraged the mother from having friends independent of him and that he restricted the mother’s access to a car. He says she had her own bankcard and also had the joint ANZ credit card with a limit of $6,000 that she could access. Copies of Visa debit cards in the mother’s name issued in November 2015 and October 2017 and a H Bank EFTPOS card issued in May 2014 are exhibit 5. He says they added his father as signatory to the ANZ account before they travelled to Country C so that he could pay any bills pertaining whilst they were away. The father says this was done with the mother’s permission.
The father’s evidence
The father depicts a very different relationship between the mother and Ms Mafton. He also refers to meeting the mother in 2000 when his father and her mother married. It is curious that this was not referred to by the mother or Ms Mafton. The mother and father did not start a relationship until 2007. They were part of the same congregation of the Jehovah’s Witness faith at Town G.
At paragraph 9 and 10 of his trial affidavit filed on 8 October 2019 the father said the following:
9. Members of the Jehovah’s Witness faith could be considered ‘traditional’ in the sense that our family structures are patriarchal, with the husband to have authority regarding family decisions, on the basis that he always takes his wife’s thoughts and feelings into account. The Husband is trusted to make decisions for his family on the basis that the decision is in the best interests and does not bring harm to any of the family members.
10. Ms Salmet and I were both very engaged in the Jehovah’s Witness faith. Ms Salmet subscribed to the above views on the roles within our marriage and had a deferential personality. She told me from the start of our marriage that she always trusted me to do the right thing, and I promised to her that I would always listen to what Ms Salmet had to say on matters.
He says the mother was home-schooled as a child and had basic reading and writing skills but had particular difficulty with medical documents.
The father says they discussed who they wanted to be X’s guardian in the event both of them died. He says they agreed that his father’s sister was best placed to be X’s guardian. It would be more difficult for the maternal grandmother to raise a young child because of her age. They did not consider Ms Mafton because she lived in City D and had also left the Jehovah’s Witness faith. He says the mother told him that it was very important to her that X be raised with their faith and the values which Ms Mafton did not share. He says because of this they did not intend for X to maintain a relationship with Ms Mafton. That last statement appears to go too far and is inconsistent with their conduct and communications with her.
The father says that they saw little of Ms Mafton prior to 2010 because they did not approve of her values. Initially the mother did not invite her to their wedding. She later did but not as a member of the wedding party.
The mother and father had regular contact with the maternal grandmother who was living in Town G and was also a Jehovah’s Witness. He said the contact they had with her pretty much remained the same after the mother’s cancer diagnosis.
He said the mother’s family was aware of the treatments the mother was undergoing. They both made the decisions about treatments. He denied forcing any treatments on her. He went further and said that some of her family used the treatments themselves when they had issues. They supported the treatments. Her family and many of her friends donated to the GoFundMe page he set up to raise funds for the trip to Country C.
The father says that after the first round of treatment in Country C they returned to Australia so that they could spend time with X before the second round of treatment which was due to commence in a few weeks’ time. His understanding of when the mother and X went to stay with her mother was that this was for a short visit. He did not see the mother again. The father says they continued to text as usual and that he was not aware that the mother and X went to City D to stay with Ms Mafton until he received a text from the mother at 6:50pm on 4 December 2017 telling him that this had occurred. He says he was taken by surprise that the mother said that she wanted to be with her sister for support and that she needed space and a stress free environment, but he respected her wishes during this period. He continued to work on raising finance for their second trip to Country C. He refers to text exchanges between the mother from 30 November 2017 until 19 December 2017 and says those texts were exchanged in normal tones and that at no stage had the mother told him that she considered the relationship over. The mother stopped responding to his texts after 19 December 2017. In her last text to him she said she loved him. He annexes a series of text exchanges between them.
He continued to contact Ms Mafton up until 28 December 2017 and he annexes those exchanges as well. When asking about the mother’s condition, Ms Mafton was vague and said she was respecting the mother’s wishes about not discussing information. The father says Ms Mafton did not tell him that the mother considered their relationship over.
The last time he spoke to the mother was on 29 December 2017. He does not recall the exact contents of the conversation but says they spoke normally and that the mother did not mention any wish to separate and did not mention any intervention order (“IVO”). His impression remained that the mother simply wanted to spend time with her sister given her dire health.
Ms Mafton says when the mother was admitted to hospital under an alias the mother expressed her fear to her that the father would attend the hospital and try to control her. The mother describes the intense pain she was in and needing clarity around her medical condition. The mother expressed her fears to the doctors that the father would attend and take her out of hospital against her will. Ms Mafton was present in the course of doctors being adamant that that would not occur.
Ms Mafton says she did not prevent the mother communicating with the father. Rather, it was the mother who stopped communication. She accepted that the father did not know that the mother’s position was that they were separated. Ms Mafton said she did suggest to the mother that she should tell him but did not feel that it was her place to tell him. She agreed that the father did not know why the mother did not return to the relationship until he was served with the IVO.
The father then says he was in denial about the mother apparently wanting to separate and says that she was strongly opposed to divorce and that she had told him that she disapproved of Ms Mafton divorcing her ex-husband. I accept that the father could not reconcile what the mother was claiming post-November 2017 with his understanding of their shared beliefs. This was undoubtedly compounded by the fact that he did not speak to or see the mother again.
When cross-examined the father says that he and the mother never separated and that he does not believe that the mother considered the relationship to be over despite the application for an IVO and the affidavit filed by the mother and her other witnesses.
One of issues that has been in dispute between the parties is X’s involvement in kindergarten. The paediatrician prepared a report about X and recommended that she be enrolled for socialisation. The father agreed that the Department of Health and Human Services (“the Department”) recommended that X attend childcare and kindergarten in their report dated 2 April 2019. The father says he is not opposed to X attending kindergarten and believes that the issue of her residence should be dealt with first given the significant distance between the parties’ homes. The paediatrician also recommended that X attend kindergarten close to her primary residence. He further agreed that Ms Mafton had been trying to make arrangements since January 2019 for X to be enrolled in a kindergarten and wanted her enrolled at J Kindergarten Services. The parties are unable to agree on that issue. He expresses concerns about the application Ms Mafton made to J Kindergarten Services, which is annexed to his affidavit, which does not list him as a parent. Furthermore, under the section entitled additional needs it states “X has lost her mother in death in 2018. Currently an open investigation with child protection with regards to unusual behaviour.” Ms Mafton records the support service provided as being Sexual Assault and Family Violence. I observe that the enrolment form is dated 9 January 2019, which predates the release of the s.69ZW report. I am not prepared to draw an adverse inference about this particularly as she does not refer to the father in connection with this behaviour.
The father spoke to J Kindergarten Services and said he did not want X enrolled there. He says this is because attending kindergarten is a milestone and that both he and the mother had wanted very much to take X to kindergarten together. He said that given the raft of allegations made against him he did not believe he would be given the opportunity to attend her first day. That is a reasonable concern for him to have although it also shows an inability to put X’s needs before his own given the recommendations made in the first half of 2019 for X to attend kindergarten for her social development. The father says he believes it is important for X to engage with other children and said she does at church as well but given the issues in the allegations he wanted those determined before kindergarten is determined. He agreed that he had refused Ms Mafton’s requests for X’s immunisation records and that this meant that Ms Mafton could not enrol her in kindergarten because she is not a parent.
He states that previously he and the mother had agreed to not have X immunised. He has subsequently changed his view and X is now up-to-date with all of her immunisations.
In his affidavit the father says that he is working in the family business as a tradesman but is currently taking leave from the stress of losing the mother and these proceedings.
The father says that during the limited time he has with X they spend time with extended family members and X often asks when her cousins are coming to play. He says he was heavily involved in X’s care prior to the mother and X leaving in November 2017.
He says that his religious faith prevents him from receiving blood transfusions but that his faith does not prevent other treatments. He says that he does not object to conventional medicine and that both he and the mother were open to both Western medicine and alternative treatments where they believed they were beneficial. He says the mother chose the treatments she received and that they sought alternate treatments in the context of medical practitioners providing the mother with options which she did not want to follow. The text exchange between the father and Ms Mafton in July 2017, which is exhibit 4, is evidence of Ms Mafton being in favour of alternative treatments. She asked the father for details of the ozone treatments so that she could give them to a client who she thought could benefit from that treatment.
He also talks about the importance of the mother’s faith to her and her wish for X to be raised in the Jehovah’s Witness faith in the last part of his affidavit. He speaks about his concerns that X will not be raised in the faith if she remains in Ms Mafton’s care.
The father confirmed in cross-examination that he will not move to City D. He believes that it is in their best interests for X to be in Town G where he and the mother were settled. He says both he and the mother wanted X to grow up in that area where the mother’s friends are as well as the father’s extended family members including X’s cousins. He believes they were happier there than in City D. He accepted that there is maternal family in City D. He also accepted that he could obtain work as a tradesman in City D and that there is a Jehovah’s Witness community and Kingdom Hall in City D.
When Ms Mafton’s Counsel asked if the father accepted the premise that it would be helpful for X for the parties to live close to each other he referred to wanting to repair his broken family. He said that he does not hate Ms Mafton and wants her to have a relationship as X’s aunt. He also referred to his father who at age 76 is still working and has clients and long-term friends in Town G. It would be difficult for the paternal grandfather to move so the father would have family support in City D if he moved. That is a valid concern of the father’s particularly when seen in the context of the tension and restraints between the two families. He would also have connections to his local Jehovah’s Witness community given the importance of his religious conviction to him.
Family violence
The application for the IVO taken out on the mother’s behalf in December 2017 referred to the father’s increasing text messages to the mother. I am not critical of the number of messages the father sent in circumstances where it is conceded that the father was not told by either the mother or Ms Mafton that the relationship was over. It was reasonable for him to be concerned about the mother and X and to be increasingly so, as the responses received from the mother reduced. As far as he was aware, the mother and X were only staying at Ms Mafton’s temporarily.
The father refers to a summary of the allegations made by the mother in the application for the IVO and denies those allegations. The allegations included him smothering X with a pillow, driving with X not properly restrained, threatening to withdraw treatment if the mother reported these incidents to the police, preventing the mother from accessing medical treatment and forcing her to use natural therapies, threatening to take X from the mother, cutting-off financial support, and stalking her by making phone calls and sending text messages to try to find out what hospital the mother was in. The father denies all of those allegations and does not believe that they were genuinely made by the mother.
The father denied family violence and was blindsided by the mother’s decision to leave him and believes she was influenced by the maternal grandmother and Ms Mafton. The father had concerns about Ms Mafton’s capacity and willingness to facilitate his relationship with X and that she has tried to undermine his relationship through multiple allegations of sexual abuse and allegations of aggression at handover.
Exhibit 13 is the application and summons for an IVO applied for by Ms Mafton on the mother’s behalf. The description provided in support is somewhat inconsistent. It refers to the mother not wanting the police to charge the father with the smothering incident as she was afraid the father would not let her go to Country C for treatment. The complaints about the father isolating the mother are inconsistent with the text exchanges between the mother and Ms Mafton. Most significantly the complaint refers to the mother telling the father that she was seeking treatment and planning not to return. What it does not refer to is the fact that, as was conceded by Ms Mafton, neither the mother nor Ms Mafton told the father she had separated from him. The increasing texts and calls need to be seen in this context. Whilst the complaint refers to the father being aggressive, the text messages provided in Court do not reflect this.
When referred to the text that the mother sent to the father in December 2017 telling him that she loves him, Dr K said that that does not nullify her experiences of the relationship and that people can have ambivalent feelings about relationships. Mr L gave a similar response when he was asked about that. That of course is true.
The paternal grandfather
The paternal grandfather swore an affidavit in support of the father on 8 October 2019. In his affidavit he referred to the paternal grandmother’s diagnosis of cancer and says that she was given three months to live and was told to undergo chemotherapy. She did not want to undergo chemotherapy and they researched various alternate treatments. She lived for another five years.
He married the maternal grandmother in 2001 and they divorced in 2011. He refers to the supports he gave to the mother and father and says that it was very important to the mother that X be raised in the Jehovah’s Witness faith. He says he and the extended family are committed to supporting the father in any way possible to care for X.
It was suggested to him in cross-examination by Ms Mafton’s Counsel that his family has a long-standing engagement with alternative therapies. He denied this and said they learnt about them when the paternal grandmother became ill.
He says the father never told him not to attend changeovers and that he would attend every time. He lives about 15 minutes away from the father’s home. He also said that during the mother’s illness he visited daily. He did not believe that the mother was under the father’s control with respect to medical treatment but says that they made agreements and talked things over and said that when his wife was given some treatments she survived for another five years. He says that he never witnessed any discussions between the mother and father about her treatment options.
Religion
Ms Mafton agreed when cross-examined that the Jehovah’s Witness faith was important to the mother.
Ms Mafton was brought up as a Jehovah’s Witness but stopped practising when she was about 22 or 23 years old. Ms Mafton’s position is that she will allow X to make a decision about whether or not she follows that faith and that if she expresses an interest she will arrange for X to attend meetings. The maternal grandmother is a Jehovah’s Witness and has taken X to meetings on occasion. She agreed with the proposition put by the ICL’s Counsel that given X’s age, for her to be engaged in the faith, Ms Mafton would need to actively involve her. Ms Mafton says she had deep discussions with the mother about her wishes with respect to X. She told the mother that she would not live a double life as that would not be healthy, but that her mother would step into the role and teach X and take her to meetings and that this is what the mother wanted as well.
One of the tensions between the maternal family and the father was his desire to attend the funeral for the mother. Consent orders were made on 7 August 2018 for Ms Mafton to inform the father by text message of the funeral arrangements. She did this and she said that there was a cremation and the family gathering at home. She disagreed with the proposition that it would have been helpful for X if the father had been present for that because of the tension between the families. I accept that. The level of tension between the families extended to the fact that the father needed to obtain a court order to be able to send the mother a letter prior to her death. The father was completely excluded from the mother’s life from November 2017 until her death in 2018. He was excluded from X’s life until he obtained court orders. Ms Mafton disagreed with the description of herself as a gatekeeper for the mother and said she was an advocate for the mother.
Ms Mafton agreed with the proposition put to her by the ICL’s Counsel that she understands the teachings of the Jehovah’s Witness faith. In answer to the suggestion that any decision the mother made about her medical treatment would have been influenced by whether or not blood transfusions were required, she said that certainly would be something she would have considered. She said that the mother was ready to go ahead with surgery despite that issue and understands that there are other forms of treatment around that that can be provided, but the issue of blood transfusions obviously had been a major issue. Whilst the time she is referring to is unclear, it is apparent that certainly by late 2017 the mother was willing to undergo surgery but at that stage the doctors advised it was too late because the cancer had spread.
The father agreed in cross-examination that the Jehovah’s Witness’ beliefs are patriarchal and that he and the mother were living consistently within their Jehovah’s Witness faith. He said his relationship with the mother was one of compromise but that he was the head of the family and he had made the ultimate decision. He also agreed that Ms Mafton, having grown up in the faith, would be aware of the patriarchal nature of their relationship.
MS GOLDSWORTHY: One issue that has not been discussed at great length over the course of your evidence has been Ms Salmet’s attitude to the prospect if she had surgery and had to have a blood transfusion. Do you – was Ms Salmet’s decision, as you understood to be, that she would agree if she was required to have a blood transfusion if she had surgery?
FATHER: Would she agree to one?
MS GOLDSWORTHY: Would she have agreed?
FATHER: No, ma’am, she would not have. That was against our beliefs as a Jehovah’s Witness.
MS GOLDSWORTHY: So in your rejection of the prospect of an amputation or serious surgery and amputation, was that discussed between yourself and Ms Salmet as to whether that would have an impact on her decision?
FATHER: Yes, ma’am, it was originally back in 2010. She – she didn’t want to be cut up. She cried and broke down. And she was in tears. And then she – she – we discussed the – you know, the possibility if things didn’t go right, that she might need a blood transfusion on the operating table. And it would be very – it would be problematic for us considering our – our – our faith.
MS GOLDSWORTHY: Now, in the event that X is in your care and – do you have a general practitioner in the region where – has X had anything to do with any general practitioners down in the Town G area?
FATHER: Has she so far?
MS GOLDSWORTHY: Have you taken her to any general practitioners in the Town G area?
FATHER: No, ma’am, because I’ve had limited time with her and - - -
MS GOLDSWORTHY: But if she was to be there, would she engage with a GP that you currently see?
FATHER: Absolutely, ma’am, yes. I see a GP myself at M Medical Centre.
MS GOLDSWORTHY: And in the event that X was living with you and in the awful circumstance that she may require treatment which would involve a blood transfusion, can you say to the court what your response would be to that?
FATHER: It would be very difficult and problematic, ma’am, considering our faith, that – that was both Ms Salmet’s and my faith, that was Ms Salmet’s wishes for herself. We would explore all – we would explore all options. There is options to blood transfusions. Blood transfusions carry risks as well as not having blood transfusions. So there’s risks on both sides. I love my daughter very much and I would pull out every stop to – to make sure she got the best medical treatment without – but we also have – we also have our faith and we also have standards that we adhere to. If I was to go against my standards, what sort of person would I be?
MS GOLDSWORTHY: What if that – what if there was an order of this court, though, that said something to the effect that if you were in receipt of a recommendation of a medical practitioner, that you would need to follow that recommendation, even if it was for a blood transfusion or something that involved potentially the requirement for a blood transfusion? Would you comply with an order of this court which said that you must do that?
FATHER: I would comply with the order of the court. I have complied with all the orders of the court as per se up to this date. I haven’t breached any orders. I am - - -
MS GOLDSWORTHY: I’m talking specifically about one which may cause you some difficulty with reconciling your faith to something that might directly oppose a tenet of your faith. Would you still – would you comply with a court order?
FATHER: My – my – Ms Salmet and my intention, in Ms Salmet’s end of life statement I think she said that she – you know, she didn’t – what was it – that – Dr K – or Mr K said, you know, “Do you believe you will be looking down on X?” and she said, “No, I’m not into that.” So these were – these were Ms Salmet’s strongly held religious beliefs, and we believed these things together. And I would do my best as X’s father to make sure she had the best medical treatment available, and all options. But at the same time I – I respect my wife and I respect her wishes. She wanted Ms Salmet to – X to be raised as a Jehovah’s Witness with the same standards that I hold. And - - -
MS GOLDSWORTHY: Can I just stop you - - -?
FATHER: - - - I would be – yes. I couldn’t go against my beliefs, ma’am.
MS GOLDSWORTHY: Well, I will draw you back to that then, because we need to be very clear about this because one of the very clear issues in this case is if X returns to live with you in your care – primary care, are there any risks that she might face. And you have heard about, you know, things as simple as matted hair or, you know, what if she brushes her teeth. But this is a different level of risk, Mr Salmet. This is a risk which could be assessed by the court as being one that needs to be addressed. So I just need to be very clear on what your response is, which is that if a court was to order that you follow the reasonable medical directions of any medical practitioner caring for X, and if that potentially could lead of the a situation where there was a prospect 40 of a blood transfusion, would you comply with that order?
FATHER: I would comply with the court to the best of my ability, ma’am, but I could not compromise my beliefs as a Jehovah’s Witness.
MS GOLDSWORTHY: I still don’t think that’s giving me quite the answer that I need. I understand that you say that you would maintain your beliefs. Can you say that you would agree to a lifesaving procedure for X, as ordered by the court, even if it differed to your belief?
FATHER: I would agree to a life saving procedure for X but I would not agree to a blood transfusion, ma’am.
MS GOLDSWORTHY: You would not agree to a blood transfusion for X?
FATHER: No, ma’am.
MS GOLDSWORTHY: If that blood transfusion was life saving, would you agree to it?
FATHER: I couldn’t, ma’am. I couldn’t go against my beliefs.
In order to get a better understanding of the issue, I then had the following exchange with the father:
HER HONOUR: Mr Salmet, can you tell me what the Jehovah’s Witness belief is about blood transfusions?
FATHER: It’s – we believe that Jehovah is God, ma’am. We believe that he has a son, Jesus. We believe that life is in the blood, as the bible stated. We believe that life is to be respected, as such, and we believe that – there’s a scripture in the bible that says abstain from blood. It’s a commandment – a God given commandment. And it then says good health to you if you do. We believe that God – Jehovah God, being the creator of man, and of all things, wants the best for us, and he is – he says things for our benefit. We believe that there’s risks associated with blood transfusions. But primarily our obedience is to Jehovah God, and I hold to those beliefs because we also believe that there’s going to be a future resurrection and my wife believed that. I believe that. And I would like X to believe that, and for her to have an opportunity whatever time down the track, however long that may be, for X to see her mother again, to have the same – and how could I go against my – my wife’s wishes and not teach my daughter the same principles that my wife had, you know. I couldn’t do that. I have standards. If I go against my standards, then what sort of person am I, you know. I trust the bible. The bible has been proved true over thousands of years and, yes, I want the best for my daughter. I would comply with any court order. I have complied with court orders. But I couldn’t go against Jehovah God as the supreme law giver, ma’am.
HER HONOUR: And if a Jehovah’s Witness – so someone who is a practising Jehovah’s Witness was to have a blood transfusion is there a consequence for that in terms of - - -?
FAHTER: It depends on whether – I guess whether it’s – I mean, I haven’t really been involved a lot in blood transfusions, ma’am.
HER HONOUR: Yes?
FATHER: So - - -
HER HONOUR: I might be putting it in a completely wrong - - -?
FATHER: Yes.
HER HONOUR: wrong sort of way?
FATHER: Yes. I will answer your question to the best of my ability.
HER HONOUR: Yes?
FATHER: But if we willingly did it and went against Jehovah God’s law, yes, there would be consequences. If we were ordered maybe to do it by a court, and it was out of our control, then that’s different, you know? Our beliefs have been overruled, so that we - - -
HER HONOUR: Yes?
FATHER: - - - that would possibly be different. We have a hospital liaison committee that helps us in circumstances with blood transfusions, and there’s things like blood fractions that you can take - - -
HER HONOUR: Yes?
FATHER: - - - that are not whole blood transfusions, which are acceptable to us. And there’s also other options like saline and dextrin and other options as well to blood transfusions. But our primarily – our primary obedience is to our faith and to keep our standards as we believe them, ma’am.
HER HONOUR: So the real issue, or the line that you simply couldn’t cross would be consenting to a blood transfusion?
FATHER: Correct, ma’am.
HER HONOUR: Because then that’s – that’s so - - -?
FATHER: Going - - -
HER HONOUR: - - - strongly against your - - -?
FATHER: Beliefs.
HER HONOUR: - - - the tenets of your faith; that’s just something you couldn’t - - -?
FATHER: Yes, ma’am, yes.
HER HONOUR: - - - couldn’t do?
FATHER: But we love – I love my little girl like any father, and - - -
HER HONOUR: Absolutely accept that?
FATHER: - - - and I would pull out every stop, like I have for Ms Salmet - - -
HER HONOUR: Yes?
FATHER: - - - to make sure that she got the best treatment available, without compromising our beliefs.
HER HONOUR: And if X was to have a blood transfusion, not – and this is not something that you consented to, so something outside of your control - - -?
FATHER: Yes, ma’am.
HER HONOUR:- - - does that – does that mean you or the congregation would have to reject X, or is that - - -?
FATHER: No, ma’am.
HER HONOUR: That’s not - - -?
FATHER: No, ma’am.
HER HONOUR: That’s not - - -?
FATHER: No, ma’am.
HER HONOUR: It’s out of her control, so it’s - - -?
FATHER: That’s out of her control; that would not be an issue - - -
HER HONOUR: Okay?
FATHER: - - - ma’am, yes.
HER HONOUR: So it’s more - - -?
FATHER: But - - -
HER HONOUR: I’m sure it would be highly traumatic because it’s - - -?
FATHER: Absolutely, ma’am, and I hope that day never comes, ma’am.
HER HONOUR: Yes?
FATHER: And I will do my best to look after X and take care of X - - -
HER HONOUR: Yes?
FATHER: - - - to make sure that she doesn’t get hurt, or – and her health is looked after, dietary wise and accident wise. But I wouldn’t consider myself much of a father if I went against my own firmly-held beliefs, my wife’s firmly-held beliefs, and then I’m trying to teach X and train X in the Jehovah Witness faith, and then how do I say to her, “I’ve gone against that” when she’s older.
HER HONOUR: Yes?
FATHER: It just – it would be problematic in so many ways, and 5 it wouldn’t – it wouldn’t – I want her to look at her father when she’s older and admire the fight he put up for her mother. I want her to admire the fight that I’ve put up for her, as a three-year-old, and I want her to admire our beliefs, that daddy says what he means and he sticks to it, you know?
HER HONOUR: Yes. Thank you. Now, I hope I wasn’t being too insensitive?
FATHER: No, ma’am, it’s a - - -
HER HONOUR: I wasn’t meaning to be - - -?
FATHER: It’s a difficult situation.
HER HONOUR: Just trying to understand the positon?
FATHER: Yes, ma’am.
When the ICL’s Counsel continued her cross examination of the father he said that if the court ordered X to have a blood transfusion he would comply with that order as it would be out of his hands.
Dr K’s comments during cross-examination about the father’s religious beliefs overlooks the fact that the mother shared those views. There is nothing in the evidence to suggest that her faith was not as important to her and as strong as the father’s. What is missing is the mother’s account of her religious views and her position with respect to blood transfusions. It may well be that in facing the reality of her grave illness in late 2017 she was prepared to risk undergoing surgery and having a blood transfusion whereas previously she was not. Of course this involves an element of supposition but it is a reasonable one in light of the evidence before the Court which I have had the advantage of hearing whereas the experts have not.
The mother’s medical treatment
The father says the mother attended upon her general practitioner (“GP”) Dr N in 2009 after complaining about pain and weakness in her left arm.
The mother had a biopsy in 2010.
Dr N organised for her to have a PET scan in 2010.
The father says they were both devastated when she was diagnosed with epithelioid angiosarcoma in 2010. He says they discussed all of the options and recalls telling the mother in answer to her asking him what she should do, that ultimately the decision regarding treatment was hers.
The mother was 27 years old at the time of the first diagnosis.
He says Dr O presented them with the three options:
a)remove the tumour from the mother’s arm and take a large graft from her calf to replace that portion of her arm;
b)amputate her arm; or
c)undergo a course of radiotherapy.
He says none of them were presented as being a better option than the others and each had drawbacks.
The mother’s Counsel asked the father about the mother’s statements in Ms J’s report where she recorded the mother mentioning on several occasions that she did not have control over any decisions during her relationship and that she felt unable to pursue appropriate medical treatments for amputation. The mother says in the report that the father told her that she would be disfigured, unattractive and not able to be seen in public if she had her arm amputated. The father denied this.
The father said that the normal running of the household day-to-day means he makes decisions for the rest of the family but with respect to the mother’s health he took her feelings into consideration. He was adamant that the mother’s wishes were that she did not want an amputation and he told her that it was ultimately her decision as it was her body. He said he did not believe that the mother would have believed that he was the ultimate decision-maker including with respect to decisions over her health. He said they compromised and spoke to each other. He says that when Dr O outlined the three options the mother broke down and on the way home she was adamant that she did not want an amputation.
The father was consistent in his descriptions about the nature of his relationship and this being in accordance with the teachings of their religion. Ms Mafton was not asked about this in cross-examination.
He again said that opting for radiotherapy treatment in 2011 was the mother’s decision and he supported it.
2011
The father says that the mother was adamant that she would not consider amputation and she decided to undergo radiotherapy. The mother had 33 sessions of radiotherapy between January and March 2011. The father says he stopped working so that he could care for her. He drove her to and from all of her appointments and stayed with her to provide support.
The father says the radiotherapy was harsh and the mother suffered nausea and lost part of her hair which was distressing for her.
They had a further appointment with Dr O after further scans in 2011. She was advised to undergo a local excision to remove some of the tissue from her arm and that they could monitor her arm and follow-up in three months. Significantly, the father says that the risks of surgery were explained to her, particularly with respect to her not being able to receive blood transfusions because of her faith. If the excision was not successful the arm would need to be amputated.
The mother signed the consent form to have the surgery. The father says after the appointment they talked about the risks and the mother expressed her concern about amputation in particular and her preference to monitor her condition.
The father says they also talked about his late mother who was diagnosed with a cancerous tumour in her lung in 2003. He says despite being given three months to live, she died five years later having undergone various natural and alternate treatments including dietary changes, lymphatic drainage and ozone therapy.
The mother was scheduled to undergo surgery in 2011 but she cancelled it. They researched alternate treatments. The mother changed her diet and took rare herbs believed to help reduce cancer, had regular lymphatic drainage massage sessions and underwent ozone therapy.
With respect to the black salve treatment in 2011 the father says a friend found a video about it. He says he and the mother watched the video and the mother decided she wanted to try it. He organised some from Queensland and had it sent to Melbourne. When asked if he believed that the treatment ought to cure her, the father said he did not know and that the mother did not want amputation and did not want surgery. The mother wanted to try alternate therapies and they were willing to give anything a go.
The mother had further scans done in June 2011 shortly after she completed the black salve treatment. The father says he recalls that the scan showed that the cancer had not progressed. He believes Dr O told them that. He says they were advised to have radiotherapy which she did and to keep it monitored which they did for a time. He says that after Dr O said the cancer had not spread, the mother wanted to enjoy her life and do as much as possible in that time, the indication being that she did not want to continue monitoring it. He then said that he thought there were other scans after June 2011 before the mother broke her arm. He then said that he thought she was booked in for some scans but she said she did not want to go through with them as she felt better and was getting more use from her arm. He says they did make appointments as recommended by Dr O but that the mother cancelled them.
He denied telling the mother that it was just the lymphs not draining when she noticed a lump in her arm and her arm becoming swollen. He then said he thought Counsel was talking about the lump the mother found in 2010. He agreed that the mother received ongoing lymphatic draining treatments.
The father said he does not believe the mother lied but that she was taking a lot of medication, was confused about her diagnosis and had been forgetting things as well. He agreed that at the time she swore her affidavit on 22 February 2018 he had not seen her for several months but says that when she was at home on medication the medication was affecting her then.
When cross-examined the father disagreed with the proposition that Dr O said that the best option was to remove the ligaments, tendons and blood vessels from the mother’s arm and graft a blood vessel from the valve to keep it alive or to have the arm amputated. He said his recollection was that there were three options being amputation, excision, where they would remove the bicep and then graft a piece of her calf over the missing part of the arm, and radiotherapy. He says Dr O did not emphasise one particular treatment over the other.
The father disagrees with the mother’s statement in her affidavit that was to the effect of the father telling her that he would not let them take her arm off. The mother’s Counsel suggested to the father that given the patriarchal nature of their relationship that if he did not want the mother to have an amputation that it was his decision to make. He replied that according to their beliefs the husband makes the decision but makes it in in conjunction with his wife and takes her feelings into consideration. He says he always took the mother’s feelings into consideration and compromised with her and what she wanted. He agreed that ultimately the decision was hers and that it was her body and that he always took her wishes into account foremost. He says when they first got married he told her that he would always take her feelings into account and that he adhered to that throughout their relationship. He agreed that the mother was aware that as a married woman in the Jehovah’s Witness faith she knew that the head of the family and the ultimate decision-making power was his.
2016
The father agreed that in 2016 he took the mother to New South Wales to receive ozone treatment. He says he understands that they inject ozone into her body to get the muscles working in her arm. He says at that time the mother had ongoing “wrist drop” and that they had found out about a Country P specialist in New South Wales who specialised in this treatment and they thought that it would help her regain use in her arm. The father says that it was not specifically cancer treatment but treatment for the mononeuropathy in her arm which was the wrist drop.
The father says he believed the mother still had cancer in 2016 and that she was doing well at the time, was well enough to drive, go shopping and to look after X, bathing, changing and feeding her as well as taking her to meetings. He says the mother told him that she was feeling good and she had more use of her arm. He says with the new baby at that time it was an exciting time for them and that the mother did not want to go to the treatment and be away from X. He says at that time she was fully engaged in life and being a full-time mother. He agreed that the mother was not under the care of an oncologist at that time and was not receiving regular scans nor was she undergoing conventional cancer treatment such as chemotherapy or radiotherapy.
Hairspray incident
When Ms Mafton accidentally sprayed hairspray into the mother’s eye she had to go to hospital. Ms Mafton said in cross-examination that it was an accident and she felt bad. She then said that her understanding was that the hairspray did not have anything to do with the excruciating pain and swelling that the mother had and that the mother also had fluid in her chest. Ms Mafton says initially she wondered if she did it to the mother with the hairspray but then thought it could not have been that. She then said that the mother did not have a reaction to the hairspray getting into her eye and she was fine. This occurred in or around July 2016.
The father was cross-examined about this incident. He says when the hairspray accidently got in the mother’s eyes she had an allergic reaction and her eyes swelled. They first went to their GP and then to the Royal Victorian Eye and Ear Hospital where she was treated with steroids.
The mother’s Counsel asked him if he thought it triggered her cancer. He was referred to paragraph 24 of Dr K’s report where Dr K identified a number of odd beliefs the father expressed, including that the hairspray triggered the cancer. The father replied that he did not know but thought that Dr K took his words out of context.
2017
The father says that when they were advised by Dr O on 30 June 2017 that the cancer had spread and that the mother’s best option was to have radical forequarter amputation, the mother was devastated and was adamant that she did not want the amputation. He denied the allegation in the mother’s affidavit that in response to that recommendation he told the mother that he did not believe Dr O and that the mother had been getting more use out of her arm at that time.
He agreed that when the mother broke her arm in June or July 2017 she was advised that the best course of action was to have her arm and breast amputated. The father denied telling the mother and Ms Mafton that he did not trust the doctors treating the mother at that time. He agreed that he remained dedicated to finding an alternate cure because the mother did not want her arm amputated and said that all throughout the treatments and that he was dedicated to helping her in whatever way possible.
He says a friend of the mother told them about a Country C clinic at Q Hospital in Country C, and he made enquiries and found out they used a combination of conventional and alternative treatments. After discussing this with the mother she told him she wanted to try the treatments in Country C first before any consideration of amputation. They arranged for her mother to care for X whilst they were overseas.
The father says that the mother was quite happy with the treatment in Country C when she returned because the Country C doctors told her that they had reduced her tumour and they had the option of either staying in Country C until she had the second treatments in six to eight weeks’ time or return to Australia during that period. He says they were missing X and decided to come back to Australia.
The father was cross-examined about a letter from Dr N dated 19 July 2017 which is exhibit 10. In that letter she expresses concern that the mother’s ability to speak for herself “seems considerably limited by her husband’s overbearing nature and dismissive attitude towards mainstream medicine. I was really concerned to see the amount of pain she had been suffering”. The father did not agree with this characterisation of him as dismissive of mainstream medicine.
He was asked about another letter from Dr N dated 13 September 2017. In that letter she learns of the mother and father having no intention of returning to the Peter MacCallum Cancer Centre and that they wanted to travel to Country C for better treatment that is not available in Australia. She wrote about her difficulty in certifying the mother fit to fly and referred to her pain management being poor. She then described the father as follows:
Mr Salmet is clearly a risktaker. He decided all those years ago he would not follow medical advice and allow Ms Salmet to follow-up with radiotherapy and further treatment. 12 months ago now, Peter Mac told them the tumour had become inoperable. Still, they refuse any treatment. Now he wants to take her over to the other side of the world, because treatment is better there. She is clearly dying. I am unreasonably angry with the ignorant, controlling husband. What is fit for flying anyway? If she can get on a plane and be reasonably comfortable for the flight, she could probably fly. Is it my job to protect her from the poor decisions of her husband? If so, I have already failed. Please share these thoughts.
The father said this was the first time he had seen that letter. He denied that he had acted in a controlling manner as described and maintained that it was the mother’s decision to not follow medical advice.
Dr N also refers to the father refusing active management when the mother was diagnosed, exploring alternate treatments. She does not mention the radiotherapy treatment. To be fair, Dr N noted in the first part of her letter that the mother was diagnosed with a “malignancy in the L axilla”. She says the mother was reasonably well until she broke her arm. This occurred either earlier that month or the previous month.
He was asked about another letter from Dr N dated 20 November 2017 where she refers to the mother being denied access to family members. He denied that the letter was accurate.
The letters do not present the whole picture. I do not know how actively Dr N was involved and what information she relied on. The letters from Dr N are highly critical of the father. She is not a witness in this case. The father cannot cross-examine her. It is impossible to know whether or not she was aware of their Jehovah’s Witness faith and the implications of that with respect to blood transfusions. It may be that the father was dismissive. In her letter of 13 September 2017 she refers to the mother and father being advised that the tumour was inoperable a year before. That timing is not suggested in the chronology put forward by the parties in any of their case outlines. The evidence is that they were told her cancer had worsened and she was recommended to have radiotherapy or chemotherapy. The father states at paragraph 50 of his affidavit that in August 2016 the mother underwent scans and was told that the cancer had locally progressed to the point where they believed it was inoperable. However, it does not make sense for the mother to have been told it was inoperable in August 2016 given she was being urged to have her arm amputated in 2017. It is unclear to me as to whether or not she was told she needed to have her arm amputated in 2016 as well.
The father was then cross-examined about a letter dated 7 December 2017 from the doctor the mother saw after leaving the home she shared with the father in Town G. In that letter Dr F refers to the mother being advised to undergo amputation but her husband instead got her treatment in Country C with some infusions and chemotherapy and that she also got confusing advice in Country C about the accuracy of her diagnosis. He refers to arranging a fresh scan for the mother as the father had confiscated all her old reports and did not want her to see a doctor. The father says the mother was not confused and was happy with treatment in Country C. In answer to the accusation that he confiscated the scans the father said they are still at home in the same place as when she left. He disagreed that he did not want the mother to see a doctor.
The father denied that the Country C doctors ever recommended amputation.
In December 2017 the father was still trying to raise funds for the second trip to Country C. He says he was very concerned when he had not heard from the mother. He agreed that he was encouraging the mother to undergo kerosene treatment and said that was one of the treatments that had been recommended in Country C. He said he did not know if kerosene treatment would work or not but he was desperate for her to try anything that would keep her alive and knew that she did not want amputation or surgery. He agreed that in that text to the mother he was pleading with her to try kerosene treatment and referred to many people having amputations and then regretting it, not knowing about the kerosene treatment earlier. The father said he was not trying to convince her to not have an amputation but that he had not heard from her and was very concerned and wanted to present her with options.
The father accepted that the option of amputation had been floated for years and added that the mother’s cancer had a poor prognosis and that she had been well enough for quite some time to travel and have a child. He also messaged Ms Mafton about the kerosene treatment.
He agreed that he did not message the mother or Ms Mafton to urge the mother to follow medical advice and have her arm amputated. Of course at this stage he had been excluded from the mother’s medical treatment.
Cross examination of Dr K and Mr L about their discussions with the parties
The father gave his account that the mother did not want anything to do with amputation. Dr L thought the father minimised his involvement in treatments, was vague about how the alternate treatments occurred and was also vague about whether or not the mother had cancer, which raised questions about his thinking and also presented as a defensive strategy to avoid being implicated in influencing the mother regarding the treatment decisions made.
When discussing the alternate treatments with Dr L the father spoke about the treatments and then commented on how those treatments assisted the mother but could not accept that clearly those treatments were not helpful. He referred to the fact that the mother had lived for 10 years and that in Country C the doctors said the tumours had shrunk. Dr K expressed the view that the father’s approach “presented as representative of a cognitive issue involving a mixture of denial, justification and a lack of logic”. The father also presented the decision not to amputate as related to the mother but he could not identify anything he did to encourage the mother to have mainstream treatment. The father’s comments about the treatments and the hairspray that may have triggered the cancer raised “serious concerns about magical thinking” and that at the very least there was “marked cognitive distortion regarding medical issues”. Dr K commented that the father’s upbringing in the Jehovah’s Witness faith may have contributed to that considering the issues concerning the refusal of blood product because of doctrine and thought that the “pattern of belief overriding medicine” was likely to have been central to his life and to the mother’s to a lesser extent. It is important to note here that it is clear that the mother did receive conventional treatments as well as alternative treatments.
In answer to questions put by Counsel for the ICL, Dr K said that the picture of the relationship he had from the mother was not that the father had formally prevented her from getting medical treatment but that she was under the influence of the father and that she was unassertive. That is a somewhat softer picture than that presented in his report. When it was put to Dr K that it was his conclusion that “the mother had engaged in these decisions” he said he did not conclude that the mother was involved in those medical decisions but that he thought that “what she did was that, basically, due to her interpersonal style – that she was effectively too weak to stand up to him”.
Dr K said that the mother’s position and what she was conveying was more that the father’s attitude was that they were not going to engage in medical treatment as opposed to whether or not that occurred. What is apparent from Dr K’s evidence in this regard is that he was provided with partial and in some respects misleading information and this has influenced his assessment. It is clear that the father did not present well.
It is clear from the cross-examination of Dr K that he was not told that the mother:
a)Was treated with radiotherapy in 2011; and
b)Underwent chemotherapy in Country C in 2017.
The father’s Counsel put to Dr K that the information he received was that the father was domineering and convinced the mother to avoid conventional medical treatments for cancer treatment. Dr K’s view is that it is for the court to determine that. The evidence is that in the period between 2011 and 2017 there were two courses of conventional medical treatment being radiotherapy and chemotherapy as well as many alternate therapies. It is not uncommon for people to seek alternate therapies in the context of their religious beliefs. It is credible that they want to avoid treatment that would involve blood transfusions and presumably this would involve surgeries and certainly amputation although there are alternatives to blood products. Dr K refused to be drawn into that issue saying it has not been raised and that it would be speculation as he does not have enough medical knowledge to know whether or not that is true. It is difficult to know whether or not having accurate information about the medical issues at the time of his report would have made a difference to his assessment and recommendations as he was very clear that he was concerned about the father’s rigidity in thinking and comments about the treatments the mother received.
The father’s Counsel referred to the two mentions in Dr K’s report to radiation. He confirmed that he assumed this was radiotherapy. He concedes that he does not mention the mother’s radiotherapy treatment in his chronology. He also accepted that he probably did not know at the time that the mother underwent 33 sessions of radiotherapy in 2011. Dr K said it was the mother’s account where she told him that she did not receive regular treatment, not whether or not that account is correct. He then said it was not his role to determine what type of treatment the mother had. What was a central issue was the mother’s account and the father’s account. It is for the Court to determine whether or not doctors’ recommended treatments were followed. He was not sure if he had been told that the treatments in Country C included chemotherapy.
When the ICL’s Counsel asked Dr K to confirm that he was not concluding that the father actively hastened the mother’s death he said that he thought he had indicated that that is something that would be necessary to get an opinion from a medical practitioner about. He outlines the various positions that people had about that issue in the report and that certainly the mother’s position was that the father actively contributed to her not getting treatment that had been recommended and that Ms Mafton supported that position and spoke about the father’s views about medical interventions. He also said:
there are obvious concerns based on the fact that the father’s religious views are that medical intervention in certain domains are inappropriate, such as blood transfusions, that his overall position about whether or not the mother had cancer at all was absolutely unclear.
Mr L describes the history of medical treatment and says at paragraph 22 of his report that he discussed the appropriateness of alternate treatments over such an extended period. He records the father saying the mother was doing quite well and when she became pregnant they continued monitoring her every few months and tried alternate treatments. The father acknowledged that the mother’s health continued to deteriorate and “formal medical treatment” was sought until the mother broke her arm. At paragraph 23 Mr L says that Dr O’s recommendation for immediate amputation of the mother’s arm and breast as being the only course of action left was ignored on the basis of the mother’s wishes, which the father says were that the mother wanted another child and did not want chemotherapy and disfigurement. Mr L says he challenged the father’s logic in supporting the mother’s wishes for another child when “her life was in the balance” and found that the father’s explanation was vague and underpinned by the belief that the Country C clinic would be the answer and find a cure.
The father referred to the Country C doctors being horrified at the diagnosis and treatment option of amputation and that they discovered the mix-up with the scans at R Hospital. Mr L records the father believing that the cancer was in remission and not as bad as diagnosed by Dr O when they finished the first round of treatment in Country C. The father’s description of the treatment in Country C was “confusing and lacking in coherence and it was difficult to establish the diagnosis made in Country C.” The father could not account for the contradictions between the positive Country C diagnosis and the rapid deterioration in the mother’s health on her return to Australia. When pressed about this, the father referred to being unable to return for the second round of treatment in Country C.
Mislabelled scans
With respect to the mix-up with the mother’s scans that the father mentions in his affidavit at paragraph 73, exhibit 8 shows the labels of the scans mixed up with an eighty-year-old lady. This is an indication of there being a mistake rather than the father having a conspiracy theory as Mr L characterised it.
When the father’s Counsel cross-examined Mr L he conceded that he refers to the C.D. with the mislabelled scan as an example of the father’s conspiracy theory but does not refer to the fact that the father was in fact correct in his report. Mr L justified this by saying that he did not think it was as relevant as the father ignoring medical advice. I think this again reflects somewhat of a bias and also much emphasis on the medical decisions being the father’s sole decision. I am not satisfied that is the case.
Ms Mafton’s evidence about the mother’s medical treatment
Ms Mafton agreed that the mother underwent radiotherapy in 2011 which is conventional medicine. She agreed that it is part of her case that the mother should have had the operation and says it is her understanding that this was recommended to her. She accepted the proposition that the mother had strong religious beliefs, and also accepted that she was aware of the alternative therapies the mother was undergoing. She was shown a text message she sent the father on 23 July 2017 where she asked him for the business name of the ozone therapy practitioner as the mother thought she had a client who would benefit from that treatment. There was another message dated 8 July 2017 where she was asking the father about sending medicine that had arrived at the health food store. She could not remember what that medicine was. She agreed that given it was at the health food store it was likely to be alternative medicine. She agreed that there were no messages prior to November 2017 expressing concern about alternative treatments.
Ms Mafton agreed that the Country C clinic used conventional medicine but at paragraph 42 of her affidavit she says that the father found a clinic in Country C which specialised in using natural therapies to treat cancer. She agreed that she made no mention of the use of conventional medicine in that paragraph and said that the clinic primarily used alternative medicines. She agreed that the mother had chemotherapy in Country C and that the mother felt that her condition was improving there. I am satisfied that the father was not the only one keen to pursue alternate treatments.
Allegations of sexual abuse
Ms Mafton sought to distance herself from allegations that the father may have sexually abused X. In her trial affidavit she said she was concerned about several of X’s behaviours including sexualised behaviour, and increased fixation on her genitals including placing bath toys in her vagina and returning from the father’s home with redness and vaginal discharge in her underpants. She said she no longer has concerns about those issues after reading the s.69ZW report from the Department dated 15 April 2019.
On Sunday 2 December 2018 after collecting X from her overnight visit with the father, Ms Mafton said she was concerned when they stopped on the way home and she assisted X toileting. She noticed that her vagina was red and there was discharge in her underpants. She took X to the S Hospital on the way home and X was physically examined. The hospital identified redness but not any discharge and did not think there were symptoms of sexual abuse. The hospital advised Ms Mafton and Mr B to monitor the situation and take her to the Royal Children’s Hospital if there were further concerns. Ms Mafton said that the doctor said he could not say anything happened to X then said “but” and paused before telling her that if she saw anything concerning again to take her to a larger hospital. Ms Mafton reported her concerns about this to the Department on 4 December 2018.
Ms Mafton says at that stage she was panicking and worried about concerning behaviour she saw and wanted to make sure she was doing everything appropriately for X and that she was not overlooking anything. She said she now regrets that behaviour.
Ms Mafton said in cross-examination that she did not tell the doctor at S Hospital about her concern about X inserting toys into her vagina. She did mention it to the Department when she made a report a couple of days later. It is a significant thing to fail to tell the hospital given her concerns.
Ms Mafton said that she understands now that it is not unusual for little girls to have redness of the vagina.
When asked who she thought was responsible if it was sexual abuse, Ms Mafton said she could not answer that and was not sure that anyone was responsible. When the father’s Counsel asked her if it could possibly be the father she said it could have come from anyone, anywhere and that it was possible. She said nobody even knew whether it was sexual abuse.
Ms Mafton then said that she only became concerned about the toy incidents after speaking to her support worker. She then said that she had this discussion with her support worker about the toys in October 2018. She says she contacted the Department in November 2018 about her concerns about the toys. She was unable to explain why she did not tell the hospital about this. The father’s Counsel suggested this was because Ms Mafton had not been concerned about X playing with the toys and that it is common for young children to be curious about their bodies and explore themselves. Ms Mafton said that when she discussed X’s behaviour with the support workers she was told it was not normal. Ms Mafton says she reported to the Department by phone every time she was concerned.
Dr K agreed that it is common for three year old children to play with themselves. He said that sometimes children play with themselves because it is about irritation and mostly this is normal. He also said that it is pretty common for people to make a leap from a child playing with themselves and having vaginitis to being concerned about sexual abuse when people are inexperienced. This is particularly so if it is sexualised play that they have never seen before and they do not know how to interpret it. They may conclude that some sort of abuse has occurred. Ideally a person would accept a diagnosis from a hospital about vaginitis but said that people do not always accept it because of their own anxieties and lack of trust in the other person so in many ways it is not an unusual logic because of the amount of social concern.
The s.69ZW report, being exhibit 2, refers to receiving a report on 4 December 2018 about two instances on 30 October 2018 and 6 November 2018 of X playing in the bath with her toys and putting the spout between the genitals and sitting on top of the tugboat wriggling her vagina on top of it. There is reference to there being a further incident on 9 November 2018 with X sitting on top of the tugboat but it is unclear whether on this occasion she put it between her genitals.
The Department records interviewing Ms Mafton at her home on 10 December 2018 when the maternal grandmother and X were also present. X was unable to be interviewed that day as X would not engage with the worker.
Ms Mafton made a further report to the Department on 29 December 2018 that X displayed concerning behaviour including inserting toys into her vagina and asking Ms Mafton to touch tongues.
Ms Mafton took X to hospital on the way home after an overnight visit with her father on 30 December 2018. She believes she took her to City D Hospital, again with concerns about discharge in her underwear and redness. The doctor at City D Hospital found that the discharge and redness was not a concern. She says at that stage she was relieved. The hospital visit was also reported to the Department which met with Ms Mafton and X the next day on 31 December 2018 and again attempted to interview X without success.
The s.69ZW report refers to the Department interviewing X on 7 February 2019 and notes that whilst her responses were minimal she felt happy and safe at both homes. No one had touched her inappropriately or exposed themselves to her.
Ms Mafton took X to hospital on the way home from an overnight visit with the father for the third time on 10 February 2019. This time she was concerned about redness around her vagina. She conceded it was the same redness she had seen when she took X to hospital on the two previous occasions. She says she took X to hospital again because she was panicked and anxious and had not heard what doctors had been telling her properly. This involved subjecting X to a third physical examination at the hospital which she conceded would have been frightening. She says she should have listened and regrets taking her for a third time. The Department records the hospital diagnosing X with vulva vaginitis, inflammation and irritation and noting it is common for girls of X’s age and is not indicative of sexual abuse.
The Department further records visiting the father and X on 27 February 2019 to observe a contact. X was again very shy around the Child Protection worker and clung to her father. The worker observed that the father was able to comfort X and that X actively played with the father with a wide variety of play equipment and there was no indication of her being upset or distressed. X gave the father hugs and kisses which were not instigated by him.
Ms Mafton took X to hospital and expressed concern about the vaginal redness and discharge for the fourth time on 4 March 2019. Again, this was after an overnight visit with the father. The doctor determined that it was not necessary for X to have a VFPMS assessment. It is particularly troubling that Ms Mafton took X to the hospital for a fourth time after the previous advice.
The Department assessed that X’s behaviours could be explained by her developmental stage in the context of the grief of losing her mother.
Ms Mafton claimed that once she received the Department report she was no longer concerned that X may have been sexually abused.
The Department said in conclusion:
The concern in closing the current child protection involvement is that this is a highly emotionally charged family situation, whereby the maternal family are determined to have X in their primary care. The father similarly wants the same outcome in having X in his primary care. There is no doubt that X is cherished by all of her family and this will continue throughout the next period of time until the next Federal Circuit Court hearing and possibly beyond. The concern will be how the adults manage their own wants and wishes, noting that the reporting on X’s behaviour is encouraged, there will come a time in the future, where it will be damaging to X to have her behaviour continuously reported despite clear advice from medical persons and police that there is no evidence of abuse occurring.
The Department recommended that the family seek support from Child First and also recommended that X be enrolled in a childcare program to assist her with her social, emotional and cognitive development.
Ms Mafton denies taking X to hospital on multiple occasions in order to assist her case in having X live with her. She again said this was because of her being panicked and not wanting to overlook anything. She says that she was of the view that anyone who is in contact with X could have harmed her, even herself. She says she discussed with her partner Mr B the possibility of him being responsible for X’s sexualised behaviours and said that she arranged for friends to be at home when she was out and Mr B was at home with X.
Ms Mafton’s Counsel briefly outlined to Dr K, Ms Mafton’s actions in presenting X to hospital on four occasions being concerned about X inserting toys in her vagina and having discharge and redness of her vagina. She said Ms Mafton’s position is that once she received a report from the Department stating that X was not at risk of sexual harm by the father she accepted that and moved on. Her position was also that at the time she was new to parenting, was learning and took advice. Dr K agreed that this was consistent with her presentation with him. However, as detailed in my discussions about the sexual abuse allegations this is not the complete picture.
He went on to say that as the four hospital visits occurred after returning from visits with her father each time this would send a message to X that her aunt was anxious and that there was some sort of danger. Dr K said that he could not properly comment on the abuse allegations without more information and reading everyone’s accounts. That is a reasonable position.
Ms Mafton made an application to the Magistrates’ Court of Victoria for an IVO against the father protecting herself and X on 5 April 2019. In this application and summons, which is Exhibit 3, she refers to the father denigrating her at changeovers, approaching her in an aggressive and angry manner as well as filming and photographing her and X at changeovers and making threatening remarks. She also says that there is a current Child Protection investigation with respect to sexualised behaviour regarding X which started on 30 October 2018, one month after overnight visits began. She conceded that she did not tell the Magistrates’ Court that she had taken X to hospital on four occasions and had been told that there was no evidence of abuse. This is also of concern particularly when considered with the other instances of Ms Mafton being selective in her reporting. The inference that X’s behaviour is linked to the father is clear.
As a result of the IVO Ms Mafton took out in April 2019 the father’s time with X was suspended for about six weeks.
When Mr L interviewed Ms Mafton on 23 May 2019 she said she was no longer concerned about the father sexually abusing X.
Mr L described Ms Mafton’s parenting capacity in positive terms and said Ms Mafton showed insight into her previous conduct of making multiple allegations and expressed regret and was acting out of anxiety as the parent and her grief and loss of her sister. He said she was better resourced to deal with her anxieties in the future and he did not think she showed any sign of gatekeeping. Mr L had no concerns about her capacity to facilitate X’s relationship with the father.
He supported Ms Mafton being given sole parental responsibility given the clashing parenting values with respect to medical issues and the father’s rigid personality and views and beliefs. He said these issues are likely to lead to disputes about education and physical, psychological and emotional welfare issues about X and that this would impact on Ms Mafton’s parenting capacity.
He said that to the father’s credit he had met the requirements of supervision and attended parenting courses. Mr L said that process has been very important in establishing his relationship with X which was warm and affectionate and should be supported and maintained “within the context of the risk issues identified”.
With respect to the issue of kindergarten he did not recommend that she attend kindergarten in the second half of 2019 as the group dynamics and peer relationships and friendships would be well-established and transitioning to these groups would be difficult. Given the loss and changes X has experienced, a cautious approach should be taken.
Mr L recommended a graduated increase in the father’s time taking into account the two-hour driving distance between the parties’ homes.
In cross-examination Mr L said that he did not have any communication with Dr K.
Mr L said that changing X’s residence at this stage of her life, given her history would not be in her best interests. First it would be necessary to establish that the father has a secondary or joint primary relationship with X. Any move would have to be done in stages as X has already experienced a number of abrupt changes in her life.
The ICL’s Counsel put to Mr L that he was quite critical of the father’s presentation. Mr L said it was not just his presentation but also the history of his behaviour over a long period of time. He agreed that Dr K’s report was an important part of his understanding of the history.
Mr L said he did not assume the history as recorded in Dr K’s report of there being no conventional treatments as the father told him about the radiotherapy treatments. He spent four hours interviewing the father so that the father felt heard and understood as the father had expressed significant concerns about his periods of being assessed by Dr K.
Mr L then refers to the father being “presented with a life-or-death diagnosis and chooses to ignore that”, but also having a sense of conspiracy that he expressed with respect to Dr O and a radiographer telling him the scan went missing. Mr L said that is what he is referring to with respect to a sense of conspiracy and his impression was that the father thought Dr O was unreliable or might be hiding something.
In referring to ignoring the advice and going to Country C, Mr L said he could not be sure as to who made the decisions about various treatments but from conversations with the father it was clear that he claimed a significant lead role in the decision-making. Mr L stressed that he was not saying that the father had any nefarious motive but there was disempowerment with very aggressive cancer and also someone who could barely read or write and was in extreme pain and was extremely vulnerable at that time.
With respect to recommending sole parental responsibility Mr L referred to concerns about the father’s beliefs around Western medicine and not taking medical advice and he also referred to the conflict with respect to paediatrician Dr V and that these are predictors of there being further disputes in the future. The comment about the paediatrician is a little unfair to the father given the fact that she listed the report before the father had the opportunity to take X to see her which was what was contemplated by the orders. Mr L said he was not saying that the fact that the father adheres to the Jehovah’s Witness faith means he will make the wrong decision and he is not saying that one decision is wrong or right but that the potential conflict in the circumstances of this matter given the father’s beliefs about medicine, psychology and a variety of issues is inherent. I do not know where the reference to psychology comes from as there is no evidence about the father’s attitude towards that, nor is there any evidence that the Jehovah’s Witness faith has a particular position with respect to that.
Mr L emphasised concerns about the father choosing to ignore professional advice about a particular course of treatment. He says it is difficult to see how these could be joint decisions as the father says, given the mother was partially illiterate and disempowered there was such a significant power imbalance. He said that joint decisions are made by people who have some sense of equality or sense of agency about the decisions being made. I am not convinced by the evidence that I have heard that the respective positions of the parties were as extreme as that.
My impression is that there was an element of unconscious bias in his assessment of the father. He said candidly that he is not familiar with the Jehovah’s Witness faith. The issues of the father’s decision-making and the choices of medical treatment need to be seen in the context of both parents’ strong religious beliefs.
Mr L says there would need to be a further assessment before any shared care arrangements are considered. He referred to Ms Mafton being open to an incremental increase to the father’s time if the geographical distance is lessened. When pressed, Mr L said that if that type of arrangement has occurred and there are not further court proceedings and disputes about psychologists and doctors, the potential for a shared care arrangement could be considered when X is in year one.
Mr L confirmed with the mother’s Counsel that he recommended that X remain in her aunt’s primary care and that the father’s time could be increased to five nights a fortnight if they lived closer to each other.
When asked about the Jehovah’s Witness religion Mr L pointed out that he is not an expert but would accept when he was told that it is patriarchal that it is. In terms of the father’s rigid thinking, when asked if that was a result of his faith or his life experience, Mr L said that personality formation is a combination of those things and a combination of genetics and environment, religion and family.
He said the father’s evidence that he was the primary carer of X is consistent with his rigid thinking. It also goes to the issue of insight and a lack of flexibility in his thinking and not being able to let go of things he deeply believes in, causing concerns with respect to parental responsibility. Mr L said he spent considerable time going through with the father Dr O’s diagnosis and the decision to go to Country C and what Mr L perceived to be an “absolutely absurd situation” that could be considered when his wife’s life is in the balance. Mr L came across as quite judgemental of the father in this regard and without any consideration of any context of both the mother’s and the father’s strongly held religious beliefs.
With respect to concerns about the father’s rigidity in thinking and impact on X he said now that X is beyond the “terrible twos” stage his concern would be more around when X was older and starting to express opposition.
Mr L said an example of reductive thinking is the father’s belief that because he is the biological father he must be the primary attachment figure even though X is almost four and has been living with her aunt for the past two years. He acknowledged the significant advantages to X in maintaining a warm and secure relationship with her father but the flipside of that was the rigidity in his thinking. A key component of a primary attachment relationship is the anchor that it provides a child when a child goes out in the world and comes back and the morals and values that predominantly get absorbed from a very early age. My impression is that Mr L has an unconscious bias with respect to the father’s Jehovah’s Witness faith which he has little knowledge of.
He did not have the impression of Ms Mafton being intentionally obstructive. He emphasised his view that a change in residence would be hugely disruptive for X developmentally and is contraindicated. He then referred to the fact that Ms Mafton was willing to move and the father was not. I do not place weight on the fact that the father was unwilling to move given his reasons and given the particular history of this matter and the complete breakdown of any trust and working relationship between the father and the maternal family.
Mr L said he was concerned about repeated reports about sexual abuse and explored that issue with Ms Mafton in detail but found that the response was authentic. Ms Mafton explained that it was a huge transition for herself and her partner to become instant parents when they had no intention of being parents. Within this context she was anxious and learning on the job of dealing with grief of the death of her sister.
With respect to the abuse allegations and Ms Mafton’s anxieties, Mr L explained that Ms Mafton described her anxieties as being that she was anxious about missing something and that it would be normal for her to still have anxiety about her parenting capacity.
Ms Mafton did not tell Mr L that she thought it was possible that her partner had been responsible. When the father’s Counsel summarised Ms Mafton’s evidence with respect to this issue and the evidence that she had discussed about Mr B and Mr B’s reaction where his response was clearly that no such discussion had taken place, Mr L said that that would be a disturbing aspect of Ms Mafton’s account and inconsistent with his observations of authenticity. However, he said the issue of Ms Mafton’s motivations were for the Court to determine, not him.
Mr L did not explore with Ms Mafton whether or not she thought the father had any responsibility for the mother’s death. With respect to his criticisms of the father not following medical advice, Mr L said it was not his perception of the advice but it was in the material. Mr L became quite defensive giving evidence at this point objecting to the suggestion that he was partisan to Ms Mafton’s position. I do not think that Mr L displayed any partisanship favouring Ms Mafton but rather was critical of the father in the absence of having any understanding (and I appreciate that it was probably not explained to him and is notably absent in most of the affidavit material) about the Jehovah’s Witness’ beliefs and how that would have influenced both the father’s and the mother’s decisions about choice of medical treatment.
Mr L said he was critical of the father ignoring the absolute urgency of the diagnosis the mother had been given. He accepted that the clinic in Country C offered another form of conventional medicine combined with other treatments.
Mr L does not think the father represents any risk to the physical safety of X and to the extent that there is a concern about that expressed by Dr K in his report, this no longer appears to be an issue of concern.
Mr L acknowledged that the father told him about his family’s strongly held belief in alternative medicines and the fact that his mother had been given a few months to live but survived the next few years receiving alternate treatments.
Mr L also accepted that the risk of blood transfusions would have been of concern for surgery and amputation given their religious beliefs. He says he used the word “ostensibly” as simply indicating that his understanding about what he was told was that they follow the dictates of church but does not know what those dictates are. He agreed that he is critical of the father for his preference of alternate treatments. When it was suggested that it was strongly influential of his findings he said it was not just that. He took issue with it being a significant part of his assessment. I find that it was.
The father’s submissions
The main thrust of the father’s submissions is that Ms Mafton has engaged in a deliberate strategy to have X in her primary care by:
a)removing the mother and X from the father’s home on 27 November 2017 to date;
b)portraying the father as dangerous, violent and controlling including being responsible for the mother’s death by preventing her from receiving conventional treatments;
c)making allegations of family violence and by assisting the mother in obtaining an IVO against the father; and
d)making unfounded allegations of sexual abuse against the father in order to strengthen her claim that X should remain in her primary care.
He says little weight should be placed on the expert reports which are clearly influenced by Ms Mafton’s false case. The Court should be satisfied that the father was X’s primary carer prior to November 2017 and that X has a strong bond with him and she should be returned to his care as quickly as possible.
I certainly accept the submission that in some instances Ms Mafton was not candid in her evidence particularly with respect to the sexual abuse allegations and in some instances questions were untruthful.
However, this case is not as black and white as it is painted by the father’s Counsel in his written submissions.
Ms Mafton’s submissions
In her written submissions Ms Mafton’s Counsel focuses on expert evidence and that the Court should find that X is primarily attached to Ms Mafton and that it would be harmful to X’s long-term interests if that primary attachment was disrupted, particularly given earlier disruptions to her attachments and the loss of her mother.
Her submissions emphasise the patriarchal nature of the parents’ relationship. In answer to the criticism that the experts were misinformed about the treatments the mother received, (being given the impression that she did not receive conventional as well as alternate treatments), that was information that the father could have provided. The Court should be satisfied that the father was the decision-maker in the family and that he encouraged her to use alternative therapies rather than conventional medicine and that the mother was powerless and passive with respect to these decisions.
Counsel pointed to the fact that the father’s Counsel specifically asked Ms Mafton if she blamed the father for the mother’s death and she replied that she did not, but that does not ameliorate concern about the father’s ability to appropriately engage with medical practitioners when dealing with X’s care.
She also submits that evidence from Dr K does not support the view that the father was X’s primary carer before her removal. Whilst the father had extremely limited time with X several months prior to Dr K’s assessment, that assessment occurred much earlier than Mr L’s. Ms Mafton submits that the fact that the father now has a strong relationship with X is because she has facilitated his relationship with X in the two years that X has been in her primary care.
In answer to the criticism that she failed to call her mother as a witness she says it is unnecessary to call a witness to confirm uncontested facts, being that the mother initially went to the grandmother’s home and shortly thereafter moved in with Ms Mafton with X. If that were the extent of the evidence of the maternal grandmother then there would be considerable force in that submission. However, it is a gap in Ms Mafton’s case in circumstances where the mother is deceased and there is a real contest between the parties as to the nature of the mother and father’s relationship, including whether or not the father was domineering and prevented the mother from obtaining medical treatment that she wanted.
Ms Mafton’s Counsel submitted that the evidence is now clear that the father is able to provide the physical and basic safety needs for X but she remains concerned about his ability to provide for her emotional needs and refers to the opinions of both experts about the father’s predicted and rigid thinking and lack of insight. An example of the father’s lack of insight is his proposal that X spend just six hours a month with Ms Mafton after having lived in her primary care. She refers to his refusal to contemplate moving to City D and refers to the fact that his evidence is that he has not worked for a long period but has qualifications as a tradesman and such skills are easily transferrable. She further points to the fact that Ms Mafton is willing to move to Town G if X is ordered to live with the father, despite her business being based in City D. There is some merit in that submission but this ignores the connections the father has to his church and his family in that area.
Ms Mafton’s major concern is about the father’s ability to provide X with appropriate medical care should the need arise particularly with respect to the question of blood transfusions.
I do not agree with the characterisation of the father’s evidence at paragraph 55 of those submissions. The father was not evasive in answering questions I put to him with respect to blood transfusions. It is somewhat perplexing that this was not otherwise explored in any of the material or cross-examination until that point. What was very clear from the father’s evidence is that his religious faith is extremely important to him. Part of that faith involves a prohibition of blood transfusions. Given the significance of this issue I earlier set out the exchange in full at paragraphs 61 and 62. Clearly this was a difficult and sensitive topic to raise and I found that the father gave this considerable care and support, far from being evasive and he was doing his best to explain his concerns and the reasoning behind them. Somewhat surprisingly, particularly given the controversy surrounding the mother’s medical treatment, this was not addressed in the mother’s or Ms Mafton’s affidavit at all. In fact very little is said in the material at all about his faith. Both the father and mother were devout Jehovah’s Witnesses and the father remains so. The father’s evidence is that it was important to the mother as well as to him that X be brought up in their faith. The maternal grandmother and the paternal grandfather remain in the faith.
The controversy with respect to the medical treatment the mother received and did not receive must be seen in the context of the parents’ religious faith. My impression is that Ms Mafton was somewhat understating the significance of what any surgery would mean to the mother as the need for a blood transfusion when undergoing surgery is likely to be high.
With respect to Ms Mafton taking X to hospital on four occasions due to concerns that X may have been sexually abused, Counsel submits that the simple answer is that she was a relatively new primary carer who was learning how to parent and she panicked. That submission is somewhat undermined by the repeated nature of Ms Mafton’s attendances at hospitals and the timing of those attendances as well as the inconsistencies in her evidence and somewhat selective disclosure.
Ms Mafton’s Counsel points to Ms Mafton’s willingness to facilitate overnight time despite raising concerns with the Department about historical allegations that the father had been inappropriate with a three-year-old nephew. Ms Mafton’s Counsel also pointed out the fact that once the Department determined not to intervene further, she accepted that. This is contradictory to the father’s picture of Ms Mafton pursuing an agenda seeking to undermine and sever the father’s relationship with X.
The reality is that the situation is far more nuanced than either Ms Mafton or the father is willing to acknowledge and must be seen in the context of the tragic circumstances of this case coloured by grief on both sides.
The father’s submissions did not engage with the affidavit of the mother and Dr K’s assessment of the mother. Whilst conceding that father was not able to cross-examine the mother, Ms Mafton’s Counsel submits that given the circumstances of this case the affidavit should be given significant weight particularly with respect to views, thoughts and comments expressed by the mother.
She further submits that the father’s evidence that the mother made decisions for her own health should be rejected and the letter from Dr N clearly supports this. I do not have any evidence as to how involved Dr N was with the families and for what period.
She submits that Ms Mafton’s evidence should be preferred to the father’s as she gave her evidence honestly and openly in contrast to the father whose evidence was either dishonest or was as a result of his lack of insight. I do not accept either of those propositions.
Ms Mafton seeks that the parties have equal shared parental responsibility for X, acknowledging the relationship between the father and X and stating that in light of her significant concerns about the father’s ability to make appropriate decisions for X, particularly with respect to medical issues, that it would be in X’s best interests for both parties to be involved in that decision-making. This is a change from her position at trial where she was seeking to have sole parental responsibility.
ICL’s submissions
The ICL’s submissions helpfully analyse the evidence of the parties which I will not repeat here in any detail.
However, the orders in so far as they delegate decision making to a counsellor are not orders this Court can make.
She refers to the previous disruption to X’s living arrangements the first being November 2017 where without warning she does not see her father for several months and then of the death of her mother. Whilst I do not accept that the father was X’s primary carer prior to the mother breaking her arm in mid-2017, he was a significant figure.
The ICL submits that X should live in the father’s primary care. Ms Mafton’s conduct and evidence raises real concerns about her ability to facilitate and foster X’s relationship with her father. There is some emphasis on X living with her only surviving parent.
Her submissions refer to the comments in the s.69ZW report of the maternal family being determined to have X in their care and says this is based on Ms Mafton’s allegations and subjecting X to multiple medical examinations.
She also submits that the maternal grandmother could have given evidence about several crucial matters. I agree.
She submits that the father should have sole parental responsibility and that X be transitioned into the father’s care.
She referred to inconsistencies in Ms Mafton’s evidence with respect to the abuse allegations.
She also referred to the other complaints about the quality of the father’s care including not giving her breakfast and not providing a bed for her. She points out that Mr L recommended a five-nine care arrangement despite his criticisms of the father. This is inconsistent with X being at significant risk in the father’s care.
The legal principles and their application to children’s issues
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975. The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act 1975 gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Law Act 1975 indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
There are 13 additional considerations which are set out in s.60CC(3).
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. This case is not a contest between parents. I am satisfied that the father has fulfilled his parental responsibilities.
I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the child’s best interests being treated as paramount.
Ms Mafton complains about the conduct of the father and paternal grandfather at changeover. It is not surprising that the changeovers are difficult given the nature of the conflict and distrust between the parties. For X’s sake hopefully this will improve after the conclusion of the court proceedings.
Section 61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is the best interests of the child for their parents to have equal shared parental responsibility. 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 (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility (s.61DA)(4)). In this case the contest is not between two parents. Regardless of whether or not the presumption applies the Court may order that two or more persons share parental responsibility. They do not need to be parents.
None of the parties’ submissions referred to any case law. The issue of religion was a strong undercurrent in the case particularly in the context of medical treatment. A parent’s right to religious freedom, like freedom of movement is subject to the child’s best interest. The court has confirmed in several decisions that it will only look at religious issues where the beliefs and practices of a religion impacts on the welfare of a child.[1]
[1] Paisio & Paisio (1979) FLC 90-659; Firth & Firth, (1988) FLC 91-971; Peter & Elspeth [2009] FamCA 551.
Ms Mafton’s original position of seeking sole parental responsibility, now equal shared parental responsibility, is based on concerns about medical issues. There is no evidence that X has any health issues. I am satisfied that the mother received both conventional and alternative medical treatment. I accept that the father was the ultimate decision-maker in the family but that does not mean the mother did not have any input. It may well be that the mother was unassertive and the father was more confident and opinionated. That falls short of there being coercive controlling violence.
Conclusion
Having carefully considered all the evidence, I have formed the impression that both families have somewhat coloured views of what occurred in the past in light of the tragic outcome. This is in no way a criticism and indeed is understandable from both perspectives. From the perspective of the mother’s family, clearly there has been a lot of querying with respect to what the outcome might have been if the mother received different medical treatment. That account is not entirely fair to the father as whilst I accept the father was the head of house and the primary decision-maker and would have had an influence with respect to the mother, that does not mean that she was entirely overwhelmed and dominated by him and what is missing from the maternal family’s account is how these issues will be seen in the context of the mother’s faith. There is no suggestion by anyone that the mother’s faith was not as strong as the father’s and seen in this context it makes perfect sense that the mother would not want surgery or an amputation.
From the father’s perspective and that of his family I accept that the father is genuine in his confusion and distress about the end of their relationship and that from his perspective they did not separate. He was not able to resolve any of those issues as he never saw the mother again. He was faced with the loss not only of his wife but of his child’s time. It is also understandable that he would not want to be seen as preventing the mother from receiving treatments that could have saved her life and that characterisation is somewhat unfair and harsh to him. I think the actions of both the maternal and paternal family need to be seen in this context and being mindful of the trauma they have all suffered. In addition to this, these proceedings have loomed large during the course of the mother dying and the aftermath. The stakes for both families are incredibly high. From the perspective of the mother’s family they are wishing to implement the mother’s express wishes and I think this has led to the maternal aunt in particular engaging some strategies which have been to X’s detriment.
From the father’s perspective he has been cast as the villain and understandably despite protestations to the contrary from the mother’s family he felt that they blame him at least indirectly for the mother’s death and would have real fears about the future of his relationship with X if she remains in Ms Mafton’s primary care.
The father’s proposal for X’s time with her aunt is not in X’s best interests. To go from being in her aunt’s primary care to her father’s primary care without transition would be another disruption to X’s attachments and another loss for X. The transition needs to be more gradual than that. It is made more complicated by the distance between the two parties’ homes.
Given this background it will be incredibly challenging and difficult for families to be able to move forward and be able to interact with one another positively for X’s sake in the future.
With respect to parental responsibility which Ms Mafton now seeks be shared, I think this would be incredibly difficult for these parties to engage in effectively and may lead to further conflict particularly in the short term. The level of hurt and distrust borne out of grief is too great. It is asking too much too soon.
People may disagree with the choice of medical treatments. Many people seek alternative treatments when facing stark diagnoses. They may not accept medical advice and may try other options. In a parenting case such as this, this can only be relevant in so far as there is an unacceptable risk to X that can be ameliorated by preventing the father from having sole parental responsibility. The court should not interfere with and place restriction on families more than is necessary to protect a child’s best interests. It is impossible to eliminate risk entirely in any situation in life. If this line of reasoning is followed through then no Jehovah’s Witness parent would have parental responsibility for their children with respect to blood transfusions in particular. The state has not taken this action.
I am satisfied that the father should exercise sole parental responsibility. As the maternal family will remain an important part of X’s life and an important source of her identity, he should inform Ms Mafton of his decisions. Particularly as there needs to be a transition for X’s care, the parties will need to cooperate with respect to X’s enrolment and attendance at kindergarten. Both should be on the enrolment form as contacts. Of necessity given the distance between the homes and the need for a transition into the father’s care, X will necessarily need to attend a kindergarten closer to Ms Mafton’s home. It would be impractical for her to attend one near the father’s home in 2020.
The transition I have provided for necessarily involves significant travel but I am mindful that the transition needs to be graduated. Annexure A is proposed draft orders dealing with the parties’ time. I cannot make the Orders as sought by the ICL as it leaves the transition to a counsellor. I am mindful of the difficulties in predicting how X will cope with the transition. The Court must make orders that are clear and enforceable. This is the type of case where the parties may seek further orders from the Court depending on how X progresses.
As the parties have not had the opportunity to consider the draft orders I will grant the parties liberty to apply with respect to the orders provided that it is done within 30 days.
I certify that the preceding three hundred and eleven (311) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 12 February 2020
ANNEXURE A
From the date of these Orders until 1 December 2020
That X live with Ms Mafton.
That X spend time with the father as follows:
(a)In week one from 10:00am Thursday until 5:00pm on Sunday;
(b)In week two from 10:00am Thursday until 5:00pm Friday.
(c)Or at such other times as agreed between the parties in writing.
From 1 December 2020 until 1 December 2021
That X live with Ms Mafton.
That X spend time with the father as follows:
(a)In week one from 10:00am Thursday to until the commencement of kindergarten or school on Monday, or if a non-kindergarten or school day until 5:00pm Monday;
(b)In week two from 10:00am Wednesday to until the commencement of kindergarten or school on Friday, or if a non-kindergarten or school day until 5:00pm Friday;
(c)Or at such other times as agreed between the parties in writing.
That X spend time with the father for half of each 2020 school term holiday period in a week about arrangement, with such halves to be agreed between the parties and in the absence of agreement for the second half of each of the school term holiday periods.
From 1 December 2021:
That X live with the father.
That X spend time with Ms Mafton during school terms as follows:
(a)In the event the parties live within a 30 minute drive of each other:
(i)In week one from after school Friday or if a non-school day from 3:00pm Friday to the commencement of school on Monday;
(ii)In week two from after school Thursday or if a non-school day from 3:00pm Thursday until the commencement of school on Friday or if a non-school day until 9:00am Friday
(b)In the event the parties live more than a 30 minute drive away from each other:
(i)In week one from after school Friday or if a non-school day from 3:00pm Friday until 5:00pm Sunday;
(ii)In week two from after school Thursday or if a non-school day from 3:00pm until 7:00pm Thursday with the time to be spent in the area that the father is living.
(c)Or at such other times as agreed between the parties in writing.
That from the beginning of the first term holidays in 2021, X spend time with Ms Mafton during the school term holidays in a week about arrangement, with such halves to be agreed between the parties and in the absence of agreement for the second half of each of the school term holiday periods, and for the first two weeks in January each year as agreed and failing agreement from 10:00am 1 January until 5:00pm 14 January.
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